Rather than prove that the tenant has broken a long standing rule about not smoking in the property, what you will need to prove, if this matter goes to the eviction hearing stage at the Landlord and Tenant Board, is that the smoking by your tenant is substantially interfering with your reasonable enjoyment.
You would have to document the times and dates that the smoke from the tenant was affecting you. For example, document if the smell of smoke woke you up, or bothered you as you were going to sleep. You could also ask another tenant to be a witness at your hearing to prove your claims.
The first step, however, would be to serve an N5 Notice to Terminate Tenancy for Interfering with Others.
The N5 is a 20-day notice but the tenant has the first 7 days to void the notice by correcting the problems (stop smoking). Otherwise you can file an (L2) application with the Landlord and Tenant Board to go to a hearing and ask for the termination of the tenancy. If you have to go to the Board, it’s very important to bring witnesses to the hearing so if there are any other tenants, you should speak with them and ask them if they would be willing to come to the hearing to testify to what is going on.
There is a very good chance that you will not notice any more smoke for a while after you give the notice. If the notice is voided by the tenant not smoking, you may need to serve a second notice within 6 months if there is a re-occurrence during that time.
The N5 form and instructions are available from the Landlord and Tenant Board website here – http://www.sjto.gov.on.ca/ltb/forms/
For reference, here is a link to a case involving smoking as a reason to try an evict a tenant:
We own a duplex that is heated centrally. The tenant smokes and we don’t, can I ask them to smoke outside?
The first thing you should try is writing a letter to the tenants advising them that the smoke is bothering you and request that they smoke outside. If they do not comply you could then serve them with the legal notice (Form N5) that states that they are interfering with your reasonable enjoyment of the premises. When they are served with this notice they have seven days to correct the problem and if not corrected then you can file an application with the Landlord and Tenant Board to terminate the tenancy. It is uncertain that you would be successful in this case because the tenants could argue that their tenancy agreement did not include a non-smoking clause.
The upstairs tenant has a NO SMOKING clause in her lease and we smell smoke in our apartment. Can we apply to evict her because of this?
You can issue a Form N5 based on the reason that she is interfering with the reasonable enjoyment of the premises by the landlord and/or other tenants and not complying with the agreement.
A landlord can give a notice to a tenant for interfering with the reasonable enjoyment of the landlord, if the landlord resides on the residential premises, and/or of the tenants if the tenants have complained about the smoke. If damage is associated with the smoking, you should get an estimate for the cost of repairs and incorporate this reason into your notice. The same notice, which is the Form N5, can be given for both reasons. You can then ask for compensation for the damage in the same application. It takes normally three to four weeks to schedule a hearing at the Landlord and Tenant Board. You can represent yourself at the Board but, depending on the case, it may be a good idea to obtain legal representation. This is one of those issues that is not that straight forward and Board decisions have varied based on this issue.
As you may be aware there aren’t any by-laws on smoking in private residences, however landlords are allowed to include a non-smoking clause in their tenancy agreements. If a tenant does not comply with this provision and it becomes a problem for other tenants your recourse would be to serve the tenant with Form N5 based on the reason that he is interfering with the reasonable enjoyment of other tenants. Once the tenant is served with this notice then the tenant has seven days to correct the situation. If the tenant does not correct the situation you can file an application with the Landlord and Tenant Board to terminate the tenancy. An adjudicator of the Board will then have to decide whether to terminate the tenancy on that basis or give the tenant another opportunity to still correct the situation. In these types of cases it is very important to have the other tenants attend the hearing as witnesses to support your claim.
Landlords are allowed to state in their rental agreements smoking is not allowed on the property. However, if a tenant does not comply with this you will still have to prove that the smoking is causing a problem such as other tenants complaining, or if there’s allergies or medical conditions that are aggravated by the smoke. At that point you can issue the tenant with a notice which still gives them an opportunity to correct the situation before you can take the matter to the Landlord and Tenant Board.
Currently there are no by-laws governing smoking in private residences. A landlord is permitted to include a clause in the tenancy agreement that there is no smoking on the premises.