Landlord Loses Eviction Case Against Smoking Tenant in North Bay: Rosales and Hernandez v Varley 2021
Landlord's application to evict tenant for smoking dismissed due to lack of details in termination notice
Summarized by RentZenLast updated: July 26, 2024
Case Summary
1 First Avenue E, North Bay, ON P1B1J9
Decision in favor of
landlord
Balance Owed
-
Dispute Categories
Notices Sent
Agree with the ruling?
Timeline
Application Date
Jan 2021
Hearing Date
Oct 2021
Order Date
Dec 20, 2021
Dispute Summary
Landlords applied to terminate the tenancy and evict the Tenant due to the Tenant substantially interfering with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another Tenant by smoking in the residential complex.
Determinations
- The first N5 Notice served on the Tenant complied with the statutory requirements and was valid.
- The Tenant did not void the first N5 Notice.
- The second N5 Notice lacked specific details regarding dates and times of the Tenant's alleged behaviour.
- The second N5 Notice failed to comply with the Act and the requirements set out in the Ball v. Metro Capital Property case.
Case Study
The Landlord's application was dismissed because the second N5 Notice served on the Tenant lacked sufficient details regarding the Tenant's specific behaviour to meet the requirements of the Residential Tenancies Act and the Ball v. Metro Capital Property case.
Arguments and Actions
Landlord
Actions
Two tenants moved out of the building due to the Tenant's rude and negligent behaviour. Other tenants complained almost daily about the smoke entering their apartments because the Tenant smoked inside with a fan to blow the smoke into the hallway. A young mother with a 4-year-old child complained that her son was having breathing problems at night due to the smell of cigarette smoke from the Tenant's smoking.
Procedural Errors
The second N5 Notice served on the Tenant lacked sufficient details regarding the Tenant's specific behaviour to meet the requirements of the Residential Tenancies Act and the Ball v. Metro Capital Property case.
Tenant
Actions
The Tenant smoked in the building, resulting in complaints from other tenants about the smell of cigarette smoke and potential health risks.
Decision Summary
The Landlord's application was dismissed because the second N5 Notice served on the Tenant lacked sufficient details regarding the Tenant's specific behaviour to meet the requirements of the Residential Tenancies Act and the Ball v. Metro Capital Property case.
Adjudicator Details
LTB Member
Total Orders
32
Landlord Favorable
81.3%
Tenant Favorable
9.4%
Mutual Agreement
9.4%
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