Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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Young v. Saanich Police Department, et al Page 20 set aside the Notice. I reproduce the more significant portions of the arbitrator’s findings of fact and analysis: From October 19, 2001 to July 22, 2002, the landlord received approximately 38 oral or written complaints from other occupants complaining about the odour of marihuana in their suites or in the hallway and about the alleged adverse effects of the marihuana on their health or in their lives generally. ... Almost all of the witnesses who testified referred to the fact that they knew the tenant or the tenants were smoking marihuana in their suite and that the odour in the hallway or the stairwell or in their own suites resulted from that smoking of marihuana. Some witnesses testified that the tenant husband smoked marihuana either on his patio or at his patio. 2003 BCSC 926 (CanLII) The tenants argue that as the hallway is pressurized, it is impossible to smell the marihuana from the tenants' suite. I disagree. It is common knowledge in almost every apartment building odours often escape from the suites into the hallway. Cooking odours are good [sic] example. Cigarette smoke is another example. I am satisfied that the witnesses including the landlord who visited the premises on several occasions, smelled marihuana smoke. Regarding the witnesses for the tenants who did not smell marihuana in the halls, I do not accept their evidence. In particular, I do not accept the evidence of persons who visited the building on one or two occasions as evidence regarding the presence of a smell. ... In summary, there is no evidence that anyone suffered medical effects from the smell of marihuana. On the other hand, I accept the evidence of those persons who complain that the adverse effects of marihuana makes them feel ill or gives them headaches. I also accept the evidence of those persons who talk about how the smell of marihuana slows or frustrates their recovery from another more serious ailment. ... I accept the fact that many of
Young v. Saanich Police Department, et al Page 21 these complaints are based on the perception of the person smelling the marihuana and not necessarily a medical diagnosis. However, in my view, the feelings and sensibilities of the other occupants are important factors to consider as those feelings and sensibilities may be central to their enjoyment of their home. ... Several of the complaining occupants have requested transfers from this building because of the smell of marihuana. One of the witnesses has moved and has bought a townhouse. He says he moved because he is a non-custodial parent and when his child came to visit him at the residential property, the child was exposed to the smell of marihuana. He was concerned that if the custodial parent found out that marihuana was being consumed in the residential property, his access to his child might be denied. 2003 BCSC 926 (CanLII) The landlord testified that the landlord lost one month's rent when the occupant who bought a townhouse left and the landlord was unable to rent his suite for one month. The landlord alleges that the tenants have unreasonably disturbed other occupants contrary to section 36(1) of the Residential Tenancy Act. ... The real question is whether the smell of marihuana somehow entered the suites of the complaining occupants as they have testified because it is that type of disturbance that would almost certainly cross the line and be properly described as an unreasonable disturbance. ... Did the tenants disturb other tenants? The answer is yes. Other occupants complained about being disturbed and about feeling they had lost enjoyment of their home. They complained about an odour that made them feel ill or gave them headaches. Other tenants were adamant that they had to move. One did move. In my view, the tenants did disturb other occupants. ... It is inconceivable that the tenant's right, indeed his need to smoke marihuana in order to treat his disease, could be used to defeat the rights of other occupants to peaceful enjoyment of their homes. As the tenants disturbed other occupants, they breached article 13
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Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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