Smoking at home: Canada Smokers Apartments Page 2

Montreal woman wins smoking dispute -QC

July 10, 2007

MONTREAL — A Montreal tenant has won the right to continue smoking in her apartment.

Sandra Ann Fowler held a news conference in front of the building Tuesday to say she is happy with the Quebec rental board’s decision.

Her landlord, Olesia Koretshi, wanted to add a no-smoking clause to Ms. Fowler’s existing lease but the board turned her down.

Ms. Koretshi, who suffers from asthma and was pregnant when she tried to have the clause added, did not think it was necessary to ask Ms. Fowler if she smoked when she signed her lease.

She and her spouse, who live below Ms. Fowler, said earlier this year they assumed she didn’t smoke.

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Condo owner sues smoking neighbour

May 23, 2007
Neal Hall, Vancouver Sun

A North Vancouver condominium owner is suing her neighbour, claiming her smoking on the outdoor patio is a nuisance causing her stress, irritability and disrupting her sleep.

In a lawsuit filed in B.C. Supreme Court, Maureen Nicholson claims her neighbour, Claire Bellwood, smokes on the patio up to 10 times a day, causing the “toxic, noxious, carcinogenic and pungent smoke” to enter Nicholson’s suite.

Smoke has entered Nicholson’s suite at least 275 times since last July 3, the legal action claims.

The defendant also has repeatedly burned sage on the patio, Nicholson claims.

The lawsuit says Bellwood filed a complaint to police last July, causing the police to attend Nicholson’s home, which the plaintiff considered harassment in response to a complaint made by Nicholson to the strata council.

The allegations have not been proven in court and the defendant has not yet filed a statement of defence.

The trial will be held in Vancouver. No date has been set.
nhall@png.canwest.com

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Smoking argument not persuasive

May 19, 2007
Following are excerpts from a Landlord and Tenant Board decision issued Wednesday in the case of Sharna Sugarman, a Kingston resident battling eviction by her landlords. While the landlords wished to occupy the unit Sugarman was in, she herself was arguing to the board that second-hand smoke from the apartment below her was damaging her daughter’s health.

In the matter of Unit 2, 330 Montreal St. between Michael Cole, Jeff Cole, (Landlords), and Sharna Sugarman, (Tenant): Michael Cole and Jeff Cole (the “Landlords”) applied for an order to terminate the tenancy and evict Sharna Sugarman (the “Tenant”) because the Landlords require possession of the rental unit for the purpose of residential occupation. The Landlords also claimed compensation for each day the Tenant remained in the unit after the termination date.

Sharna M. Sugarman (the “Tenant”) applied for an order determining that Michael and Jeff Cole (the “Landlords”) harassed, obstructed, coerced, threatened or interfered with her and substantially interfered with the reasonable enjoyment of the rental unit by the Tenant or by a member of her household.

These applications were heard in Kingston on March 21 and April 18, 2007.

The Landlords, represented by Tina Tom, and the Tenant, represented by John Ross Done, attended the hearing.

Background:

The Tenant and her young daughter reside in the top two floors of an older complex with a small one bedroom apartment below theirs. The complex has a single forced air gas heating system the services both units.

Landlords’ Application:

This Board as a finder of fact must assess the Landlords’ motives for serving the Notice to Terminate the Tenancy to the Tenant. The test of good faith is the Landlords’ genuine intention to occupy and not the reasonableness of the Landlords’ proposal.

The Landlords have given the notice to terminate the tenancy after the Tenant filed her application for tenant’s rights against them. I need to determine if the notice was given in good faith, according to the standard for this Board, which is on the balance of probabilities. I considered the following to arrive at my findings.

The Landlord Michael Cole and his mother Mrs. Cole both testified that prior to his parents selling their home to him both parties agreed that upon their return from travelling, the parents would occupy one of the rentals units. Presently, the Landlords only own the two-unit complex at 330 Montreal St. The main floor unit is a one bedroom and the upper unit consists of one bedroom plus a finished loft. Mrs. Cole testified she and her husband required the upper unit.

Mrs. Cole testified that her husband has health issues and will be required to stay in Kingston near his doctor until these health issues are resolved. They previously lived in a fifth wheel trailer which they used to travel to the southern United States during the winter months. They returned to Kingston due to her husband’s health problems and resided in the trailer in their son’s driveway.

After finding that too crowded, they moved into their old home now belonging to their son and his wife. She stated she found being in such close proximity to her son and his wife was not good and requested that they take a unit in the rental complex as agreed in the fall of 2006.

Mrs. Cole wants the upper unit for the extra bedroom (the loft) in case her husband requires his own room while recovering from knee surgery he may have soon. She described the loft in detail and why she wanted that room specifically. She likes the limestone walls, natural wood finish and the amount of natural light the room receives.

If Mr. Cole has an operation on his knee, is a unit with a steep flight of stairs and an additional flight to access the loft practical? The Coles believe that the stairs will not be a problem because the injury prevents Mr. Cole from walking any distance on a level surface but even the stairs in their previous two-storey home did not pose a problem.

Counsel for the Tenant questioned the issue of the stairs with Mrs. Cole. She felt certain other than his immediate recovery time that the stairs were not an issue. Mr. Done then questioned her why, after living in an upper middle class neighbourhood, she would want to live in a less affluent and amenable part of the city? Mrs. Cole responded that she felt comfortable with the decision. Michael Cole testified that the complex has been for sale for over nine months and he and his brother are not prepared to sell the property at a loss. When the complex sells, the proceeds will be used to purchase a home for their parents. In the meantime, they could live there. He confirmed Mrs. Cole’s testimony that the decision to have the parents reside in the unit was arrived at in the fall of 2006. Although the timing of the notice may appear suspicious, the decision had been made months previously.

I find, on the balance of probabilities, that the Landlords’ intention to occupy the unit is genuine and that the notice was given in good faith.

Tenant’s Application:

Although the application includes allegations that the Landlords restricted the Tenant from using her above ground pool and the Tenant is seeking a rent abatement of $2,475.00, no submissions were made at the hearing regarding this matter. This portion of the Tenant’s application is dismissed.

The Tenant alleges that smoke from the unit below is entering her unit and this substantially interferes with her reasonable enjoyment. The negative effects from the second-hand smoke include waking her child in the middle of the night, which results in the child being late for, or absent from, school on a regular basis and causing the Tenant and her daughter to endure the odour and possible harmful health effects of the smoke.

The Tenant presented witnesses and submitted reports to support her claim of the harmful effects of second-hand smoke. I accept the Health Canada findings of the ills of second-hand smoke and I do not feel the subject requires debate. The question is not whether or not second-hand smoke can be harmful but did the Landlords, by not eliminating the smoke, substantially interfere with the Tenant?

The testimony by witnesses of both parties and submitted documents were extensive. I shall limit references to that evidence to the portion I feel contribute to the findings in this matter. The Tenant testified that the incidences of her child being either late or absent from school was 75 per cent less prior to November when the problem began.

However, exhibit No. 8 submitted at the hearing April 18, 2007 clearly shows that testimony to be incorrect. The number of times the child was late or absent was greatest for the period Sept. 25 to Oct. 26, 2006 prior to when the problem of smoke began. If the Tenant found her child suffered from the effects of the smoke, why did she allow her daughter to sleep with her, in a room with vents which would allow entry of the smoke, when the Tenant testified her daughter’s room does not have any vents at all?

Further, the Tenant stated a police officer was reprimanded by his superior for not responding to a call placed by her. The officer testified he did respond to the call, did not uncover sufficient evidence to lay a charge and informed his sergeant of such at the end of his shift, which is standard procedure. This was not disputed by the Tenant.

The Tenant also testified that the smoke was so heavy she could see it coming from the vents. A property standards officer who had attended the Tenant’s unit six times testified that she did not smell smoke in the Tenant’s unit during any of her visits and in her many years experience has never visibly seen cigarette smoke coming out of a forced-air vent. This again was not disputed by the Tenant.

On Easter Sunday, the Tenant left a phone message for the Landlord that she could smell dirty ashtrays from the unit below. The tenant below testified that she normally smokes two cigarettes a day in her unit, usually when she returns home from work at 3 a.m. On the balance of probabilities, it is difficult to think that such limited smoking could emit an odour from cigarette butts in an ashtray and that the odour would travel to the unit above.

I find the credibility of the Tenant questionable based upon the examples above. I do not doubt the harmful effects of second-hand smoke. The Landlords have an obligation under the Act to take action to eliminate the smoke. But I do not find, on the balance of probabilities, that in this case the Tenant’s reasonable enjoyment was substantially interfered with.

Determinations:
Landlords’Application:
1. The Landlords in good faith require possession of the rental unit, for the purpose of residential occupation.
4. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, and find that it would not be unfair to postpone the eviction until June 30, 2007 pursuant to subsection 83(1)(b) of the Act. This will allow the Tenant’s daughter to finish this school year and give the Tenant ample time to find alternate living accommodation.
Tenant’s Application:
1. It is the responsibility of the applicant to prove her case. I find the Tenant has failed to meet that onus.
It is ordered that:
Landlords’Application:
1. The tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before June 30, 2007.
Landlord and Tenant Board:
7. Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the landlord on or after July 1, 2007.
Tenant’s Application:
1. The Tenant’s application is dismissed.
May 16, 2007
Brian McKee, Member Landlord and Tenant Board Eastern Region
– A Newsletter Reader

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Smoking challenge denied; Tenant faces eviction after tribunal rejects health-and-safety argument -ON

May 17, 2007
Ian Elliot

A local tenant has lost her high-profile challenge over the issue of second-hand smoke in the apartment she shares with her daughter.

The provincial Landlord and Tenant Board this week released its decision on the case of Sharna Sugarman, who had asked for relief from cigarette smoke she said was entering her second-floor apartment through the floor vents from the apartment downstairs.

The board dismissed her application, and granted a subsequent application by her landlords to evict her so their parents can move into the Montreal Street unit.

Sugarman and her young daughter must vacate the apartment by the end of next month.

The tribunal’s decision was conveyed to Sugarman, but the actual orders from the board laying out the rationale for the decisions have not been received by the lawyers in the case so they cannot comment on the issues raised, which was seen as possibly precedent-setting.

The board also refused to release them to reporters, saying the media must file a Freedom of Information request to obtain them, a process that can take months.

“I’m really disappointed, not so much about the eviction, but that they didn’t take into account the effects of smoke on my daughter,” Sugarman said yesterday.

“They didn’t give any details really. I’m just trying to take it all in.”

Sugarman had filed an application with the tribunal, the successor to the former Ontario Rental Housing Tribunal, asking her landlords for relief from the smoke entering her apartment.

At a full-day hearing of the tribunal last month, Sugarman and her lawyer argued that the smoke was causing her and her daughter to lose sleep, was affecting her daughter’s school attendance and asked for relief, even if that meant evicting the downstairs tenant.

The landlords and their lawyer painted Sugarman as a chronic complainer and suggested that her reaction to the smoking issue was overstated.

The landlords testified they installed vent filters and asked the downstairs tenant to smoke outside when possible and said the apartment had never been advertised as a non-smoking unit.

Local medical officer of health Dr. Ian Gemmill also testified about the dangers posed by secondhand smoke at the hearing, and said that no level of exposure could be considered a safe level.

The case was described by arbiter Brian McKee as one that could be “the tip of the iceberg” in Ontario.

Had Sugarman been successful, the case could have opened the way to a flood of tenants in smoking buildings making similar complaints, or for landlords to designate entire apartment buildings non-smoking to protect themselves against similar complaints.

“I have no idea whether other tenants will try now,” Sugarman said, saying she wanted to see the full decision before deciding if she would appeal. Decisions made by the tribunal can be appealed in the courts, but only on the grounds that the decision contains an error in law.

She said she doesn’t regret launching the case and noted that other people in the city are having the same problem.

“People I’ve spoken to are quite disappointed and quite surprised at the decision,” she said.

“Pure and simple, we’re on the same ventilation system and I’m an assertive person. I stood up for myself and tenfold for my daughter.” ielliot@thewhig.com
Read

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Mtl. landlord tells tenant to butt out or get out -QC

25/04/2007

A Montreal woman is fighting desperately to hold onto her home — despite a pack-a-day smoking habit that her landlord claims is grounds for eviction.

The case is currently before the Quebec Rental Board.

Sandra Ann Fowler claims her landlord never told her she wouldn’t be allowed to smoke in her new apartment before she signed the lease.

She told CTV Montreal she smokes about 10 cigarettes per day inside her apartment.

The only condition to her tenancy, she said, was that she agree not to keep any pets in the two-unit duplex.

The landlord, Olesia Koretski, lives in the downstairs unit. Koretski, who is pregnant and has asthma, claims smoke seeps into her unit, making her living situation unbearable.

She has demanded that Fowler either quit smoking, or move out, reports CTV Montreal’s Rob Lurie.

But Fowler is demanding that the Koretski install a ventilation system, saying it’s the landlord’s responsibility to fix the problem.

“I’m sure if she fixes the ventilation and does stuff that will keep the smoke odours from going to her house, that will help her situation for sure,” Fowler told reporters.

“But it’s not up to me to do that. I rented a space. I’m sure it’s like, be kind to thy neighbour and all that kind of stuff, but at some point where does that stop? I’m hindering my rights right now because she wants to have clean fresh air?”

Koretski said she isn’t opposed to putting in a better ventilation system, but even that won’t stop all the smoke from seeping into the apartment, and the bottom line is that the smoke from Fowler’s apartment is putting her health at risk.

Smokers’ advocates say there’s no reason why the onus should always be on the smoker to adjust their behaviour, and in this case it is the landlord’s responsibility to fix the problem.

“Now it’s politically correct to bash smokers and all excuses are good. In this particular case you have someone who has a pre-existing lease where there is no mention of smoking whatsoever,” smokers’ rights advocate Arminda Mota told CTV Montreal.

“This lease was just released to June 2008, and no mention of not smoking, and this landlord brings the person to the (rental board) to tell them to stop smoking, which makes no sense.”

Lurie said the Montreal case could become precedent-setting, because Toronto and Winnipeg are currently investigating the possibility of imposing smoking bans on apartment buildings.

According to an Ipsos Reid survey conducted in March and November of last year, 64 per cent of respondents would choose a smoke-free building over one where smoking is permitted.

Almost half of the 1,800 people surveyed said they have had tobacco odour enter their apartment in the past year from somewhere else in the building.

With a report from CTV Montreal’s Rob Lurie

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Liberals do more harm to smokers than they do good
Re:  Don’t extend smoking bans to apartments
 
Exactly how can the Ontario Liberals create a healthier society when they betray the smoker’s sense of trust, demoralize their self-confidence, disrupt their employer-employee relationships and undermind their efficacy by alienating them from their own human nature? 
 
This irrational mind/body dichotomy will subject smoker’s to long-term emotional and mental disorders, thus leading to serious physical ailments.  In reality, our government is making them sick.
 
A particularily foreboding feature of the mind/body dichotomy is the government’s suffocating negative influence while aggressively restricting young people from making their own decisions.  This aggression will jeopardize each young person’s struggle to form a sense of self-confidence.  This fragile process is usually a traumatic experience, especially when that negative influence is hidden under the misconception of government benevolence.
 
The Liberal’s Smoke-Free Act is a disgrace.  Smoking is not a direct cause of serious illness.  Besides, the government lacks the knowledge of the real No. 1 preventable killer in Ontario today, but more on that later.
 
Ken Hill
Shakespeare Avenue
Niagara-on-the-Lake
 
The Standard, March 30, 2007

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Safety in Apartments?

I followed with interest a television broadcast where the news anchor mentioned that in Toronto, some owners intended to forbid to smoke in all the apartments of the same building, because a tenant could “smell” the secondary smoke produced by his neighbour.

Firstly, let us indicate that the human nose can reveal the smoke of cigarette starting from 3 – 5 ppm (parts by millions), what becomes detectable is not harmful for the health with so weak concentrations. You will also be able to smell fried onions, fried banana coming from your neighbour’kitchen.

Second and this is important, if you live in such a building. An apartment where you can smell the smoke of cigarette of your neighbour,  MAKES YOU IN DANGER OF DEATH, not because your neighbour smokes, but because in case of fire.  The smoke of a fire in another apartment could kill you immediately during your sleep (CO or carbon monoxide). Needless to say such buildings are not made in accordance with the National Building Code, as far as meeting the proper level of fire safety in relation to the fire resistance and the smoke control. Obviously, you can probably hear all that the neighbor says and acoustic separation does not meet, either, the National Building Code.

Finally, BEFORE trying to create new (unconstitutional) laws regarding peoples’rights, let us begin by constructing buildings which are in accordance with the NationalBuilding Code, (and not, fires traps), that would allow all to live and to let live.

Davinci , a non-smoker who finds that certain no-smokers went too far and that the government goes much far in his repression, far beyond mutual tolerance.

Send me your comments, good or bad: Claude Frégeau, architect

The architect Claude Frégeau was member of the Canadian Commission on Building and Fire Codes, from 1994 till 2004.

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Minister is meddling -ON

ANN WELCH

(Apr 3, 2007)

Provincial Health Minister George Smitherman is attempting to put the onus on market forces to exclude smokers from rented apartments and condos, stating that “lawyers and politicians aren’t always necessary to bring about social change.” Yet he invites discussion and debate (Will Apartments Be Next? — March 28).

Whether he meddles in it directly or through the funding of his ministry to the Ontario Tobacco-Free Network, he still doesn’t resemble the same man who not long ago proclaimed he’s someone “who believes the state has no place in the bedrooms, or in the rec rooms, of the nation,” adding, “and so we’re saying to Ontarians, if you want to smoke at home, we’re not going to stop you.”

Let’s not forget this is the same Smitherman that meddled in the decisions of private bars and restaurants, who had always had the choice to serve to an all non-smoking clientele.

In polite society we call that a nudge and a wink — “Do it yourself or we’ll make you do it.”

Ann Welch Kitchener

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Apartment Smoking Polls -ON

:Should smoking be banned in apartments?

Yes 30% No70%

Total Votes for this Question: 2480 March 28/07 4:40 PM

Yes 29% No 71%

Total Votes for this Question: 2578 March 28/075: 08 PM

Should smoking be banned in apartment buildings?

Yes 49% No 51%

Total Votes for this Question: 4472 March 28/07 5:02 PM

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Torontoist vs. Torontoist in… Apartment Smoking Ban!
 
April 3, 2007
Every week (or so), two Torontoist staffers square off to debate an issue that’s important to our city. We invite our readers to join the debate in the comments section following the post.
 
Last week, Ontario Health Minister George Smitherman acknowledged that the idea of banning smoking in apartment buildings probably merits some kind of public discussion. While the election-conscious Smitherman didnt venture any real opinion on the subject, much less suggest specifics on the timing, nature, or possible outcome of such a debate, the comment nevertheless fired up predictable controversy between pro and anti smoking groups. Read on to see what Torontoist makes of both sides of the story.
 
FOR
PATRICK METZGER
Has the time come to ban smoking in Ontarios residential rental buildings? A recent survey from the Ontario Tobacco-Free Network found that 64% of apartment residents supported the idea, suggesting that public opinion among those most affected has shifted in that direction.
 
Needless to say, the question of a legislated ban is contentious. The anti-smoking brigades, who have been on a roll in recent years with the elimination of cigarettes in most public spaces, see this move as the next logical step in anti-tobacco campaigns. Smokers rights groups scream nanny state and invoke the sacred right of individuals to behave as they wish in their own homes.
 
Of course, any apartment dweller whos lived in proximity to a heavy smoker knows that cigarette smoke is undisciplined stuff, and not disposed to confine itself to a single unit. The case isnt analogous to that common flashpoint of multi-cultural neighbourliness, cooking odours, because while culture and taste produce differing opinions on the relative noxiousness of a pervasive scent of curry or bratwurst, food smells are not an actual public health hazard. Second hand tobacco smoke, on the other hand, is a very real and well documented danger, especially to children, the elderly, and those with lung ailments. Surely your right to smoke in your home is trumped by my right to stay cancer-free in mine.
 
The compromise suggestion has been that the market will take care of the question, and that landlords should be able to determine whether their buildings will be smoke-free. However, its not at all clear that existing provincial laws permit such a restriction, and its unlikely that landlords have the authority to evict a tenant for defying any such ban.
 
Moreover, should it really be up to landlords to decide whether or not to put tenants at risk? Should the market also determine whether to leave asbestos insulation in place, or to install smoke detectors in buildings, or how to handle other safety measures (First month FREE on floors with no fire exit!)?
 
A recent article from Seattle suggests that in that city, many upscale buildings are already smoke-free. Typically, the least healthy environments are left to those who cant afford to move elsewhere.
 
Technological solutions are impractical and unlikely to be implemented, for a couple of reasons. Firstly, an entirely airtight apartment wouldnt be easy or cheap, particularly if the architect wants to avoid tenant suffocation (claims that modern buildings insulate smells from one unit to the next are a triumph of marketing, not building design). Secondly, even if suitable technologies did exist, its nonsense to suppose that thousands of existing residences could or would be retrofitted effectively.
 
30 years ago, smokers could light up in elevators, shopping malls, offices and even classrooms. As the risks of second hand smoke have become more apparent, smoking has gradually been eliminated from most closed spaces without apparent ill-effect on civil liberties in general. Its time that apartment residents had the same rights to breathe fresh air within their homes as they do outside of them.
 

AGAINST
KEN HUNT
Lets all agree that second-hand smoke poses a health risk. People who work in bars, or bingo halls, or nicotine-filled newsrooms need to be protected from their chain-smoking customers and colleagues. This is based on well-established science and makes for sound public policy.
 
However, unless your neighbour is running some kind of Kramer-esque smoking lounge, the idea that smokers in the next unit of your apartment building pose any kind of real health risk to you or your family is frankly absurd. Modern building codes stipulate that individual units need to have separate ventilation and hallways are supposed to be positively pressurized. This helps keep smoke and odours confined to individual apartments. No more are we to be bothered by the offensive smells of burnt toast or hand-wrapped Cohibas. So, a smoking ban in modern buildings is obviously unnecessary.
 
Even in older buildings, once cigarette smoke is diffused through all the intervening air, filtered by walls and carpets, etc., it is hard to believe that that smoke should be of more concern than the exhaust of cars driving by on the street, or coal-fired power-plants pumping pollution into the atmosphere in general. Until some kind of comprehensive study shows that apartment-to-apartment passive smoking is a real concern, this issue has to considered nothing more than a case of non-smokers panic. It certainly shouldnt trump property rights and the reasonable fair use and enjoyment of ones own home.
 
This isnt really about health though; this is about the fact some people really hate the smell of cigarettes and the occasional whiff of tobacco drives them batty. Well, sometimes our neighbours annoy us. Boo-hoo. If it were possible to pass laws against loud sex, Jethro Tull, boiled cabbage, and getting bumped into on the subway, there are people who would want to do that too. They just cant think up marginal-to-imaginary health concerns to make their case for those things. This is a city: a loud, busy, smelly, wonderful city. From time-to-time our fellow citizens are going to get under our skin for one reason or another. If you dont like it, your Unabomber-style shack awaits you somewhere in the deep woods.
 
Its funny that this issue has arisen the same week as a mentally ill man was found to have an apartment full of pigeons and cannibal mice. Yes, cannibal mice. Neighbours complained about the smell coming from this apartment for years before anything was done. Now, these are people who had a real issue, and still the state was reluctant to interfere in what they saw as a prosaic dispute between neighbours. If this doesnt point out just how silly complaints about the occasional whiff of menthol and tobacco are, Im not sure what would.
 
Non-smokers rights groups have made huge strides in the last few years. The protection that they have brought to all of us who like to eat in restaurants or fly on airplanes has to be admired, but on this issue theyve finally gone power-mad. As long as smoking tobacco remains a legal activity, we should at least be allowed to do it in our own homes.

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Tenant wants smoking snuffed -ON

March 22, 2007
By Ian Elliot The Whig-Standard

Whig-Standard Staff Writer

A potentially precedent-setting case that could make smoking in rental housing grounds for eviction began in Kingston yesterday.

Montreal Street resident Sharna Sugarman appeared before the Landlord and Tenant Board – formerly the Ontario Rental Housing Tribunal – to complain that smoke from the apartment directly underneath hers seeps into her unit and is making her and her six-year-old daughter sick.

She is seeking to have her rent refunded since the downstairs tenant moved in last November and is asking the board to order her landlord to alleviate the problem.

The most likely way the landlord would do that, if the board were to make that order, would be to tell the tenant to stop smoking and serve them a notice of eviction if they didn’t.

Sugarman herself was served a notice of eviction by her landlords shortly after filing the case with the board.

The notice, in which landlords Jeff and Mike Cole say they need her apartment for a family member, is being appealed at the same hearing.

The issues raised by the case loom large, as hearing arbiter Brian McKee told the two lawyers involved in it yesterday at the Montreal Street Legion, where the hearings are held.

“If someone is in their own home, and they are not doing anything illegal, what right do I have to tell them not to do it?” McKee asked rhetorically, noting that likely is only the first such case the board will be asked to adjudicate.

“I think this is just the tip of the iceberg and I believe this will be the issue of the decade.”

He noted that while an argument can be made about the degree of health damage second-hand smoke causes, there is no question that it is not a desirable thing to be exposed to.

“On the balance of probability, second-hand smoke is not good for anyone, I think we can all agree on that.”

The quasi-judicial rental body has the authority to rule on the issue, as Sugarman is arguing the presence of the smoke amounts to loss of reasonable enjoyment of her home.

The argument is the same as if her neighbours were playing loud music or holding raucous late-night parties.

“She is allowed to smoke in her own unit,” Sugarman said under examination by lawyer John Done of the Kingston Community Legal Clinic.

“[The landlord] didn’t think he could make her stop.

“What I asked him to do is stop it from entering my unit. That is my airspace, it is my home.”

In his opening remarks, Done made it clear that he will argue it is a landlord’s duty to ensure tenants are not exposed to such substances as cigarette smoke when they are not smokers themselves.

“Drifting second-hand smoke is hazardous to people’s health generally and to children’s health specifically,” he said.

“The only way to stop the danger from the smoke is to stop the smoke.”

Since a new tenant moved below the two-bedroom unit Sugarman shares with her young daughter, she noticed smoke coming through the floor vents of the old brick building that had been converted into a fourplex.

The previous tenant had not smoked and Sugarman’s young daughter immediately started complaining about the smoke after the new tenant moved in six months ago.

It began waking her up at night, as it did Sugarman.

Sugarman said the smoke makes her feel ill and her daughter has developed a chronic cough that was only relieved when the girl spent several days with Sugarman’s non-smoking mother.

“It affects my daughter and her sleep, and she wakes up when she smells it and I have to put her back to sleep again.”

Her daughter’s school attendance is suffering, she said, as she is up for hours in the night and has to sleep late some mornings to make up for the hours she is awake in the night.

Both she and her daughter have seen doctors about their exposure to the smoke.

Sugarman said she has known from an early age that she personally is allergic to smoke although neither she nor her daughter has other allergies, such as one to animals. They own two small dogs and until recently had a cat.

She even switched rooms with her daughter, giving the young girl the top-floor loft bedroom furthest from the vents where the smoke enters the unit, but it has done little good.

She said she complained repeatedly to the landlords, but testified all they did was try a scented furnace filter and give her felt-like baffles to put over the floor registers. She said they were ineffective.

Acting for the Coles, who are small landlords with no other properties, was lawyer Tina Tom, who mounted an aggressive cross-examination.

She went in detail through the calendar Sugarman kept to note the days she smelled smoke, her relations with other tenants and how much she had done to address the problem herself.

She asked if Sugarman had bought a Smoke Eater, an appliance advertised as able to clean cigarette smoke particles out of the air.

“I don’t think they work, I think they’re a rip-off,” Sugarman responded.

“You’re concerned about your health and your daughter’s health, but you don’t want to try anything that might work?” shot back Toms.

She also questioned how Sugarman could know if the smoke was coming from the unit below hers, although Sugarman said she knew the tenant was a smoker and the problem only began when she moved in. She said the problem was present when she could hear the downstairs tenant moving around.

“It would be rude for me to peek through the curtains to see if they’re smoking,” said Sugarman during one of several restrained but edgy exchanges.

“If she’s cooking, I can smell it.”

Toms also noted that the $685 monthly rent for the apartment included heat, and wondered why Sugarman did not leave a window open all the time to air out the unit.

“Doesn’t it make sense to you that if you can’t deal with the smoke you allege is there, you wouldn’t deal with it at no cost to yourself by opening a window?” she asked.

“It’s winter,” replied Sugarman.

The landlords themselves did not have a chance to testify at the hearing, and Toms said they would not do interviews about the case before they have a chance to present their side when the hearing resumes.

The hearing also raised issues of personal credibility, as Toms put forward a tenant on the other side of the duplex who said she had smoked in Sugarman’s apartment and Sugarman raised no objection when she visited her own apartment and was exposed to smoke.

Sugarman denied the allegations under oath with the same vehemence with which they were made.

There is a short but bitter history between the two that includes calls to police and the Children’s Aid Society, plus a court-ordered peace bond between the two and a court date looming.

Both lawyers suggested, under cross-examination of the other side’s witness, that each woman was looking to discredit anything the other one said under oath with an eye to introducing that evidence at an upcoming court date.

No ruling on the smoking case was handed down yesterday.

Because of the complexity of the issues and length of evidence that is expected to be presented which may include at least one expert witness – McKee adjourned the hearing in the late afternoon.

It will resume in Kingston next month and a full day has been set aside to finish the case, a rarity for the board, which settles many cases in an hour or less.

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Support grows for smoke-free apartments -ON

Poll shoes 57 per cent of residents would support ban

MARTIN MITTELSTAEDT Globe and Mail Update

First came smoke-free restaurants and bars. Then came workplace bans. Now, support for kicking smokers out of apartment buildings is hitting home, quite literally.

An Ontario anti-smoking group says polling it commissioned has found majority support for banning smoking within individual residences in apartment buildings or any other multiunit household in the province.

The Ontario Tobacco-Free Network, which had the poll conducted and will release it today, says 57 per cent of those living in multiunit dwellings would support such a ban.

Smoking is currently prohibited in elevators, hallways and other common areas in Ontario, but not in apartment residences. The poll detected widespread annoyance over second-hand smoke seeping into the residences of non-smokers, with half of those surveyed saying they’ve had tobacco smoke odour enter their units from elsewhere in their buildings, and 70 per cent of those saying they’re bothered by it.

The finding is believed to be the first public opinion survey in Canada showing attitudes are hardening against smokers in home settings. Until now, smokers have thought of their homes as sanctuaries where they could light up in peace, but the poll suggests smoking is starting to be viewed in the same light as other off-putting behaviour in communal settings, such as noise, poor hygiene and late-night parties.

The pollster who conducted the survey predicted the next big move against smoking will be in multiunit dwellings, with increasing pressure for buildings to be designated as smoke free.

“What the research clearly shows is that you’ve got six out of 10 people out there that, if you hang out a shingle that says smoke-free apartment or condominium complex, you’re going to have people decide to move into that,” said John Wright, a senior vice-president of Ipsos Reid, which conducted the survey.

The poll surveyed 1,800 people across the province who live in multiunit residences, and is considered to be accurate within 2.9 percentage points, 19 times out of 20. It was conducted in November and March of 2006, with the second round of questioning done to confirm the findings.

If the finding that nearly half of those living in multiunit dwellings have had tobacco smoke enter their units was applied across Ontario, it suggests about two million of the four million total residents are being exposed to unwanted second-hand smoke, a known carcinogen, from neighbours.

The poll also found that 64 per cent of those living in multiunit dwellings would choose, when looking for a place to live, a smoke-free building over one where smoking was permitted.

The Ontario Tobacco-Free Network is a coalition of three prominent public health organizations: the Canadian Cancer Society, Heart and Stroke Foundation of Ontario, and the Lung Association.

Network spokeswoman Irene Gallagher said the health organizations found they were starting to deal with a large number of unsolicited complaints from members of the public about second-hand smoke drifting among residences in multiunit dwellings. The health groups wanted to check how widespread these concerns were.

According to Ms. Gallagher, the large number of respondents preferring not to come into contact with smokers in home settings suggests an unfilled need in the housing market. “There is a big demand in the market for smoke-free buildings,” she said.

Currently, there is nothing to stop landlords from offering smoke-free buildings or having non-smoking clauses in leases, and some building owners in both Canada and the U.S. have begun seeking this status for their residences, as have some new condominium developments.

The poll found that about one-third of respondents were bothered by smoke from their neighbours and 6 per cent found the problem so annoying they either moved or considered moving to get away from smokers.

A number of complaints have also been made to Ontario’s Landlord and Tenant Board, where some residents have sought to have landlords evict smokers using legal provisions normally applied against those who create nuisances.

The finding of widespread health concern over smoking in multiunit homes doesn’t come as a surprise to Adrianne Schutt, a Peterborough resident who lives in a small apartment building and has recently been bothered by smoke from neighbours.

If there were a ban in Ontario on smoking in apartments, “I would be overjoyed, absolutely overjoyed. It’s incredibly unpleasant” to be exposed to second-hand smoke, she said.

She lives in an apartment where the landlord failed to enforce an existing lease provision banning smoking, something that irked her after two heavy smokers moved next door and began smoking on a shared balcony, causing cigarette smoke to drift into her unit.

“You shouldn’t be subjected to something hazardous in your own home,” she said. “It’s not 1930 any more. We know this [tobacco] is going to kill us.”

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Former smoker challenges ban on lighting up in some Winnipeg apartments  -MB

MICHELLE MACAFEE

WINNIPEG (CP) – One of Winnipeg’s largest rental agencies is facing the first challenge of a new smoking ban in its apartments, but says it still plans to impose similar rules on its properties in Edmonton and Saskatoon.

Globe General Agencies, which manages about 5,000 units across the Manitoba capital, banned smoking Oct. 1 for all new tenants moving into its 75 buildings. Tenants who lived in their apartments before that date are still allowed to light up in their homes.

Bev Reeves, a former smoker and longtime resident of one of the apartments, complained to the Manitoba residential tenancies branch, arguing the policy was unreasonable.

A hearing was held Jan. 25. The adjudicator’s decision is expected early next month.

In an interview Tuesday, Reeves said the policy is “extremist, unnecessary and leaves people with no dignity.”

She said it’s inevitable that multi-unit dwellings will eventually become smoke-free, but Globe should have tried to consult and work with tenants to phase the ban in gradually.

“It allows people to say that smokers are bad guys and non-smokers are good guys and pits one against the other,” said Reeves, 63, who quit smoking eight years ago.

She says balconies should also have been exempt from the ban.

Reeves or Globe can appeal the adjudicator’s decision to the residential tenancies commission, a panel made up of landlord and tenant representatives as well as a neutral official, said Roger Barsy, branch director. In rare cases, the complaints eventually end up in Court of Queen’s Bench.

Barsy said the case centres on whether the rule is reasonable under the Residential Tenancies Act.

“It must be fair in all the circumstances; it must be applied equally in a fair manner; it must be something that promotes the health, safety and comfort of the residents and protects the landlord’s property from abuse.”

A similar smoking ban is set to take effect in Globe’s 450 apartment units in Edmonton on Thursday, said company president Richard Morantz.

While the Manitoba tenancies branch ruling would not apply in Alberta or Saskatchewan, it will bolster either the company’s stand or those who oppose it and may be considering a similar challenge.

The company also manages apartments in Montreal, but it has no immediate plans to ban smoking in those units.

Morantz said he has been surprised by the large volume of phone calls and e-mails the company has received from those on both sides of the issue since the policy took effect.

He said the company, which faced frequent complaints about the smell of smoke in the hallways, is trying to protect all its tenants.

“We’re following a trend in society where it has become more and more evident of the risks that smoking creates for people around them.”

Morantz said some U.S. rental agencies have even tested drywall and carpet in apartments to show the health risks that lurk in a smoker’s home, even after they move out.

In British Columbia, the battle between the rights of smokers and non-smokers living in close proximity has landed in the province’s Supreme Court.

Earlier this month two social-housing tenants in Vancouver asked the court to force their neighbours to butt out or move out.

Tamara Szymanska-Golik and Sheila Abraham argue the smoke that drifts from a neighbour’s balcony into their homes is making their severe respiratory problems even worse.

The Greater Vancouver Housing Corp. tried caulking the edges of windows, doors and electrical sockets, but ultimately concluded there is no way to isolate the good from the smoky air.

Globe General Agencies has rejected only a handful of applicants who said they were smokers.

For those who do move in, landlords rely on an honour system and complaints, rather than act as “smoking police.” Morantz said it appears everyone is following the rules.

“I think people who smoke are going elsewhere. I haven’t had one complaint that this person said they weren’t a smoker and moved in and now they’re smoking.”

Regardless of the outcome of Reeves’s complaint, Globe may already be paying a price for adopting the policy.

The company’s vacancy rate in Winnipeg has traditionally hovered at about half the Canada Mortgage and Housing Corp.’s rate, but the gap has narrowed in recent months, Morantz acknowledged.

“It could be for other reasons, it’s hard to pinpoint, but we could be suffering a little bit as a result of this policy.”