The current study examines the following legal issues:

1. When does the Tribunal administratif du logement (TAL) grant a rent reduction or moral damages to tenants due to disturbances from neighbours’ cannabis use?

2. What are the average and median amounts of rent reduction and moral damages that the TAL awards to tenants?

Authors: Claudia Marcantoni & Siobhan O’Connell

Short answer:

The TAL granted a rent reduction in 46.4 percent of the cases analyzed and moral damages in 30.4 percent. Successful claims were those where the tenant showed that the disturbance was excessive and unreasonable, where there existed a non-smoking clause in the lease, and where the cannabis use went beyond mere “neighbourly annoyances.” Successful tenants were granted an average rent reduction of 19.9 percent (median of 13.7 percent) and an average of $714.3 in moral damages (median of $1000). These calculations are discretionary and fact specific.

Legal Analysis:

CAIJ was used to identify relevant cases. We read 100 cases that met our search criteria.^[1] Of these, 31 were relevant (Table 1).^[2]

Complete Answer:

1. When will the TAL grant a rent reduction or moral damages to tenants due to disturbances from neighbours’ cannabis use?

Tenants’ claims for rent reductions and moral damages due to disturbance from neighbours’ cannabis use are rooted in articles 1854, 1861 and 1863 of the Civil Code of Quebec (CCQ). Landlords have an obligation to provide tenants with “peaceful enjoyment of the property.”^[3] When a landlord fails to fulfil this obligation, the tenant has the right to apply for moral damages and a rent reduction under article 1863.^[4] Tenants also have obligations to one another, importantly to not “disturb the normal enjoyment” of other tenants in the dwelling.^[5] If a tenant reports disturbance caused by another tenant to the landlord and it persists, the tenant may obtain a rent reduction.^[6] The tenant may also have a right to moral damages, unless the landlord proves that they “acted with prudence and diligence” in addressing the disturbance.^[7]

The TAL recognizes that the unwanted presence of cannabis odour or smoke may impact a tenant’s peaceful enjoyment of their dwelling or may constitute a disturbance, giving rise to a rent reduction or moral damages.^[8] However, the TAL does not readily grant these remedies. The jurisprudence suggests that the TAL grants rent reductions in approximately 46.4 percent of cases and moral damages in only 30.4 percent (Table 2).

a. Excessive and unreasonable disturbance

Tenants must prove on a balance of probabilities^[9] that the disturbance caused by cannabis is excessive and unreasonable.^[10] This assessment follows an objective standard, considering the severity and recurrence of the smoke and odour. “Recurrence” implies a continuous or repetitive disturbance over an extended period, while “severity” relates to a significant and genuine harm considering factors such as location, customs, and timing.^[11] Successful claims were those where the tenant expressed concerns for their health^[12] or that of their children,^[13] was prevented from using areas of their dwelling,^[14] suffered stress,^[15] was disturbed at night due to odours,^[16] or had to leave their home.^[17] For example, in Louidor, the TAL awarded the tenants a rent reduction and moral damages due to the neighbour’s frequent cannabis use, particularly at night, which exacerbated their son’s asthma and required him to take medication.^[18]

Successful tenants also showed that their landlord did not take sufficient steps to address these disturbances after being notified of them.^[19] Landlords’ obligations under 1854 and 1863 are “results-based,” meaning their defences are limited.^[20] Merely speaking to the neighbour to ask them to stop smoking cannabis is insufficient.^[21] However, claims for moral damages under article 1861 are subject to a higher standard than 1863. Under 1861, the tenant does not have a right to moral damages if the landlord acted prudently and diligently, such as sending a formal notice to the irresponsible neighbour.^[22] For example, in Michon, the tenants were successful in claiming a rent reduction under paragraph 1 of article 1861 but were not granted moral damages under paragraph 2 of 1861, because the TAL found that the landlord acted prudently and diligently by sending a letter to the neighbours and visiting them multiple times.^[23]

b. Non-smoking clauses

Most successful cases were ones where the lease specifically prohibited the use of marijuana.^[24] In such cases, the TAL is more likely to find that the landlord failed in their obligations to provide a peaceful dwelling by not enforcing the non-smoking clause. In cases where there was no non-smoking clause, courts were presented with two “conflicting rights,” namely the right to peaceful enjoyment of one’s dwelling on the part of the claimant and the right to smoke without personal interference on the part of the neighbour.^[25] In Bangia, the TAL rejected the landlord’s defence that prohibiting a neighbour from smoking infringes on their individual right to privacy, finding that “the right to smoke is limited by the rights of others to peacefully enjoy their dwelling.”^[26]

Cases were unsuccessful where the TAL found that the tenant had voluntarily agreed to sign a lease that allowed smoking in the dwelling.^[27] However, there are notable exceptions. In Kennedy, despite the tenant being aware that she was moving into a dwelling that allowed smoking, the TAL awarded a rent reduction under article 1861 due to the “daily discomfort” of living with “invasive and nauseating smoke.”^[28] This case was decided before cannabis became legal in Canada. As such, the TAL justified the rent reduction by stating that the illegal nature of cannabis made its presence an objectively “legitimate concern.”^[29] With the legalization of cannabis in 2018, the court has expressed that just because one does not tolerate the smell of cannabis does not mean that a violation has occurred, and the court will only intervene in extraordinary and unusual situations.^[30] Thus, if Kennedy was heard today, it is possible that the tenant would be unsuccessful, as was seen in McKenna.^[31]

c. Beyond “normal neighbourhood annoyances”

Finally, while the right to peaceful enjoyment of property is paramount, it is tempered by the duty to tolerate “normal neighbourhood annoyances.”^[32] To determine whether cannabis smoke constitutes a normal annoyance, the courts engage in a careful balancing act, weighing the individual right to peaceful enjoyment of a dwelling with the collective duty to accommodate others when living in shared spaces.^[33] Unsuccessful claims were those where the TAL felt as though the tenant was exaggerating the effects of the cannabis smoke and should “learn to be more tolerant.”^[34] The legalization of cannabis has impacted the interpretation of what constitutes normal neighbourly disturbances, with the TAL recognizing that “as society evolves, cannabis consumption is now permitted within the limits and under the conditions established by law.”^[35] For example, in Benoît, the TAL rejected the tenant’s complaint, stating that “the rules of good neighbourliness in a multi-unit building require concessions, including accepting, from time to time, that others smoke cannabis.”^[36]

 

2. What are the average and median amounts of rent reduction and moral damages that the TAL awards?

Rent reductions and moral damages are distinct remedies that may be claimed together, separately, or consecutively.^[37] To determine the amount of rent reduction that should be awarded, the TAL must “assess the objective value of the loss of rental income suffered by a tenant due to the landlord’s breaches. The loss must be serious, significant, and substantial.”^[38] The TAL will consider objective factors such as the amount of rent paid and the frequency of the disturbances.^[39]

Determining the amount of moral damages is more complicated.^[40] Moral damages are awarded as compensation for stress, inconveniences, and pain and suffering arising specifically from the landlords’ failure to address the disturbances.^[41] The TAL must take into consideration the “nature of the damage, its duration and the loss suffered by the victim for the wrongful conduct,” which is highly discretionary and fact specific.^[42]

Overall, the mean monthly rent decrease awarded by the TAL was 19.9 percent, and the median decrease was 13.7 percent. The mean amount of moral damages awarded was $714.3, and the median was $1000 (Table 3). There was a wide range in compensation awarded. Rent reductions ranged from 1.6 percent in Drolet^[43] to 47.6 percent in Paré,^[44] and moral damages from $100 in Guérard^[45] to $1200 in Proietti.^[46]

There were notable differences between Paré and Drolet that justified such divergent outcomes. In Paré, the tenants presented compelling evidence regarding the consistent nature of the disturbance, to such an extent that they suffered health problems that required medication.^[47] The tenants also faced financial constraints that limited their ability to move, and were still living in the apartment at the time of the hearing.^[48] The TAL’s decision to impose a significant rent reduction may reflect the severity of the disturbance and the need for quick corrective action on the part of the landlord. In Drolet, despite the cannabis odour causing sleep difficulties for the tenants’ son, the evidence presented was described as “sommaire” and did not establish that the disturbance was continuous.^[49] Furthermore, the tenants had already left the apartment at the time of the decision and were seeking a retroactive reduction, which may have contributed to a different assessment of the claim.^[50]

 

Conclusion:

            Our research examines when the TAL grants tenants rent reductions and moral damages due to disturbances from cannabis smoke and odour. Successful claims hinge on proving the severity and recurrence of the disturbance, as well as the landlord’s failure to address it. Non-smoking clauses significantly strengthen tenants’ claims, demonstrating landlords’ obligations to enforce such provisions. However, the TAL must weigh tenants’ rights to peaceful enjoyment against the duty of tolerance for normal annoyances. Although our research did not analyze cases where the tenant had legal medical authorization to possess cannabis, the TAL must take this into account if the tenant has such an authorization.[51] Regarding remedies, the TAL’s decisions are discretionary and fact-specific, not following a strict calculation guideline. On average, rent reductions amount to 19.9% (median of 13.7 percent), with moral damages averaging $714.3 (median of $1000). These figures vary widely depending on the severity and duration of the disturbance and the landlord’s response.

            Our findings highlight the importance of thorough documentation, adherence to lease agreements, and proactive communication with landlords in pursuing claims before the TAL. By understanding the legal framework and evidentiary requirements, tenants can navigate the process more effectively and assert their rights to peaceful enjoyment of their dwellings in cases of cannabis-related disturbances.

 

Click here to access Tables 1, 2 and 3.

 

* Cover photo : Matias Garabedian from Montreal, Canada, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons

[1] First, we searched for all TAL decisions that included the following terms: (1) “cannabis” or “marijuana” within ten words of “locataire”, “lessee” or “tenant”; (2) “voisin” or “neighbour” within five words of “fume”, “consomme” or “smoking”; and (3) “logement”, “location”, “appartement”, “apartment”, “housing”, or “lodging”. This yielded 80 cases. Second, to ensure we were not missing relevant cases, we conducted a broader search on CAIJ using the following search terms: (1) “cannabis” or “marijuana”, (2) “logement”, “location”, “appartement”, “apartment”, “housing”, or “lodging, and (3) “voisin” or “neighbour”. This yielded 1067 cases, of which we included in our analysis the top 20 cases, after sorting for pertinence.

[2] Decisions were excluded predominantly for being claims brought to the TAL by a landlord to evict a tenant for smoking in their apartment, and thus not relevant to our legal issues.

[3] Art 1854 CCQ.

[4] Art 1863 CCQ.

[5] Art 1860 CCQ.

[6] Art 1861 (1) CCQ.

[7] Art 1861 (2) CCQ.

[8] See Table 1 for the list of all cases analyzed in the current study, by outcome.

[9] Arts 2803-2804 CCQ.

[10] Barbeau c. Office municipal d’habitation de Gatineau, 2020 QCRDL 16458 at para 29 [Barbeau].

[11] Moula c. Habitations communautaires Loggia, 2018 QCRDL 41992 at paras 33- 36 [Moula].

[12] Proietti c. Gariepy, 2020 QCTAL 1464 [Proietti]; Michon c. 4840 Côte St-Luc Holdings Inc., 2022 QCTAL 15164 [Michon]; Naud-arcand c. Appartements le Concorde, 2022 QCTAL 31760 [Naud-arcand]; Paré c. Cantin, 2021 QCTAL 10887 [Paré]; Dickson c. Comité Logements communautaire Lachine, 2017 QCRDL 36799 [Dickson]; Yassine c. Corporation de l’Édifice St-Regis, 2019 QCRDL 30502 [Yassine]; Cherry c. Fairway House, 2023 QCTAL 38480 [Cherry]; Bastien c. Cantin, 2022 QCTAL 24732 [Bastien]; Bangia c. Cap Reit GP inc., s.e.c./Cap Reit, 2020 QCRDL 10918 [Bangia]; Chartrand c. Tessier, 2020 QCTAL 4798 [Chartrand].

[13] Yassine, supra note 12; Louidor c. Santosuosso, 2019 QCRDL 17364 [Louidor].

[14] Proietti, supra note 12; Michon, supra note 12; Paré, supra note 12; Kennedy c. Gestion Laberge Inc., 2016 CanLII 120366 [Kennedy]; Drolet c. Laflamme, 2019 QCRDL 33004 [Drolet]; Chartrand, supra note 12.

[15] Bangia, supra note 12; Bastien, supra note 12; Louidor, supra note 13.

[16] Bangia, supra note 12; Louidor, supra note 13; Chartrand, supra note 12.

[17] Bangia, supra note 12; Bastien, supra note 12.

[18] Louidor, supra note 13 at paras 15, 37.

[19] Bangia, supra note 12; Bastien, supra note 12; Chartrand, supra note 12; Louidor, supra note 13.

[20] Naud-arcand, supra note at para 22; Drolet, supra note 13 at para 33.

[21] Louidoir, supra note 13 at para 26.

[22] Drolet, supra note 13 at para 25.

[23] Michon, supra note 12 at paras 14-15, 28.

[24] Michon, supra note 12; Naud-arcand, supra note 12; Paré, supra note 12; Cherry, supra note 12; Bastien, supra note 12.

[25] Bangia, supra note 12 at para 89.

[26] Bangia, supra note 12 at para 100. Note: all excerpts from decisions in French have been translated to English for the purposes of the current report.

[27] McKenna c. Cap Reit, 2022 QCTAL 32001 at para 60 [McKenna].

[28] Kennedy, supra note 14 at para 35.

[29] Kennedy, supra note 14 at para 35.

[30] Barbeau, supra note 10 at para 34.

[31] McKenna, supra note 27 at para 63.

[32] Art 976 CCQ.

[33] Benoît c. Vannini, 2020 QCRDL 9887 at paras 42-46 [Benoît].

[34] Garcia c. 9322-1984 Québec inc., 2021 QCTAL 19601 at para 39 [Garcia].

[35] Benoît, supra note 33 at para 43.

[36] Benoît, supra note 33 at para 48.

[37] Jacques Deslauriers, Vente, louage, contrat d’entreprise ou de service, 2nd ed (Montréal: Wilson & Lafleur, 2013) no. 1225.

[38] Richard c. Coopérative Émile Nelligan, 2021 QCTAL 16993 para at 18 [Richard].

[39] Naud-Arcand, supra note 12 at para 31.

[40] Proietti, supra note 12 at para 67.

[41] Chartrand, supra note 12 at para 37; Cherry, supra note 12 at para 42.

[42] Proietti, supra note 12 at para 67.

[43] Drolet, supra note 14 at para 62.

[44] Paré, supra note 12 at paras 42-44.

[45] Guérard c. Michaud, 2016 CanLII 131121 at para 19.  

[46] Proietti, supra note 12, at para 68.

[47] Paré, supra note 12 at para 13.

[48] Paré, supra note 12 at para 23.

[49] Drolet, supra note 14 at para 49.

[50] Drolet, supra note 14 at paras 1-4.

[51] Art 77.1 Loi sur le Tribunal administratif du logement.