Can a landlord evict a tenant for smoking? It depends.
If a non-smoking clause is included in your rental agreement
In Ontario, landlords have the right to ban all forms of smoking, including smoking marijuana for medical reasons, in all or part of a building (including indoor units and outdoor patios and balconies). A landlord who has included a no-smoking policy in a lease or rental agreement can terminate the tenancy or evict a tenant who smokes.
If a non-smoking clause is NOT included in your rental agreement
Landlords cannot change current tenancy agreements; they can only include a non-smoking clause in new agreements. In other words, if your current tenancy agreement does not have a non-smoking clause, your landlord cannot legally evict you just for smoking.
If second-hand smoke (tobacco or marijuana) from another unit is interfering with the reasonable enjoyment of your home, speak to your landlord.
How easy is it to evict a tenant for smoking?
It’s not easy at all! If the tenant fights the eviction and lies about the situation, the landlord more likely ends up losing. The tenant could be very creative and invent many “don’ts” to fight the eviction. Such cases require multiple witnesses who document things impeccably.
It’s 99.99% impossible to evict a tenant from a multi-unit building for smoking because they could say the smell was not coming from their unit. The landlord would need an entire forensic department to prove the opposite.
One of the ways to win the case in the Landlord and Tenant Board is to claim impaired safety: if someone was allergic, had asthma or lung illness and had lived in a three unit building or less. And if that landlord had stated in the ad that no smoking is allowed due to allergies, then it would be a good chance.
I think the best chance for the landlord is to ask them to move out. They just might.
By Carlos Perdomo
Licensed Paralegal
