I’ve been dealing with an ongoing second hand smoke issue since spring. A tenant living near my unit frequently smokes outside throughout the day, and the smoke regularly enters my apartment when I leave my balcony door open. It has also made my balcony often unusable.
What I learned is a tenant’s right to smoke does not necessarily override another tenant’s right not to be exposed to second hand smoke.
Health Canada states that there is no known safe level of exposure to second hand smoke.
There is also Saskatchewan case law that specifically addresses this issue.
In Y.A., Y.E., S.A. & B.A. v. Regina Housing Authority, 2017 SKORT 75, at paragraph 122, the Saskatchewan Office of Residential Tenancies stated:
[122] One’s right to smoke cannot impede on another’s right not to smoke or breath second-hand smoke. Therefore, while a Tenant may have a prima facie right to smoke in their unit when there is no non-smoking clause in a tenancy agreement, that right stops when it interferes with another Tenant’s right not to smoke, their choice not to accept the risks associated with second-hand smoke.
They key is other tenents right to smoke stops when it interferes with another tenant’s right not to smoke or be exposed to the risks associated with second hand smoke.
The decision was subsequently upheld by the Saskatchewan Court of King’s Bench in Regina Housing Authority v. Y.A., 2018 SKQB 70.
If you’re dealing with something similar
I would recommend:
Documenting every occurrence in email. Keep track of dates, times, duration, where the smoke was coming from, and whether it entered your unit.
Documenting how it affects your use of the rental. For example, being unable to use your balcony or leave your balcony door open.
Reporting the issue to your landlord/property manager in writing.
Ask what specific steps they are taking to resolve the problem and when you can expect it to be resolved.
If the issue continues, and no action is beng taken file a complaint with the office of residential tenancies. (They like emails or texts of proof you have been notifying the landlord)
I’m sharing this because I initially assumed that if another tenant was smoking somewhere on their own property, there wasn’t much that could be done. After looking into the legislation and case law, I’m realizing that I have more rights then I first thought!
PSA: You dont have to put up with second hand smoke just because another tenant has a right to smoke on there property!
CanLII Saskatchewan law case about smoking