LTB Order LTB-T-004250-22

O. under Section 31 Residential Tenancies Act, 2006 Citation: F. v 650 P., 2023 ONLTB 39138 2023 ONLTB 39138 (CanLII) Date: 2023-05-26 File Number: LTB-T-004250-22 In the matter of: 1201, 650 P. ST TORONTO ON M4X1R3 Between: R. F. T. A. 650 P. L. L. F. (the 'T.') A. F. an O. D. T. 650 P. (the 'L.')’ substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of the T.’s household. (‘T2 Application’) The T. also A. F. an O. D. T. the L. failed to meet the L.'s maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards. (‘T6 Application’) This application was heard by videoconference on March 21, 2023. The T. A. the L.’s Representative, Charlie Bobrowsky, attended the hearing. Determinations: 1. The T. has A. F. an O. D. T. the L. substantially interfered with the T.’s reasonable enjoyment of the rental unit A. breached section 20(1) of the Act by failing to properly treat the rental unit A. rental complex F. bedbugs, A. F. failing to prevent second-hand cigarette smoke from entering the T.’s rental unit. 2. The tenancy began on March 28, 2021. The applications were filed with the Board on January 24, 2022. Rent F. the unit was $1,700.00/month at the time the applications were filed with the Board. O. Page 1 of 7  File Number: LTB-T-004250-22 3. The parties agree T. the tenancy terminated on April 30, 2022. 4. As explained below, the T. has proven on a balance of probabilities the allegations contained in the application. Therefore, the L. must pay the T. $2,908.00 on or before June 6, 2023. 2023 ONLTB 39138 (CanLII) Second-Hand Smoke 5. The T. reported an issue of second-hand smoke entering his rental unit to the L. on April 5, 2021. The T. testified T. the L. had told him T. there was nothing T. they could do about it. 6. The L. testified T. they had received a service request on April 5, 2021 to address the second-hand smoke coming from the rental unit. The L. stated T. the nearby resident who was causing the smoke issue was given a warning letter. 7. The T., under cross-examination, admitted T. he had not contacted the L. after April 5, 2021. The L. testified T. they thought the issue had been resolved after the other resident in the complex had received the warning letter. 8. I am satisfied T. the L.’s response was reasonable A. appropriate in the circumstances. They investigated the issue A. took action by serving the T. with a warning letter. In my view the L.’s belief T. the issue had been resolved after they had taken action A. not heard any subsequent complaints from the T. was reasonable. Furthermore, the T. has presented very little evidence on this issue A. has made no submissions F. a remedy F. having dealt with the second-hand smoke issue. Therefore, this issue is dismissed. Bedbugs- T.’s Evidence 9. The T. informed the L. on November 14, 2021, via the L.’s online portal, T. their unit was having an issue with bedbugs. 10. The T. testified T. he had properly prepared his rental unit F. each treatment. 11. The L. had the first treatment of the rental unit on November 18, 2021. After the initial treatment, it had appeared T. the treatment was ineffective. The T. informed the L. of the situation A. F. the next few months, the T.’s rental unit was treated on an almost bi-weekly basis. 12. The T. testified T. on January 12, 2022, the L. recommended T. the T. dispose of the box spring in the T.’s bedroom because it may be infested with bedbugs. O. Page 2 of 8  File Number: LTB-T-004250-22 13. The T. testified T. the L. promised to conduct weekly steam cleanings of the hallway A. common area, however the L. contested this evidence stating T. there was no evidence supplied by the T. to support this claim. 14. The T. testified T. on February 7, 2022, he A. several other residents of the 2023 ONLTB 39138 (CanLII) complex confronted the L. about their failure to effectively treat their units A. the complex F. bedbugs. 15. The T. testified T. he A. his family would suffer from bedbug bites. His one child developed a severe reaction to the bedbugs which required medical attention. Under cross-examination, the T. was unable to provide any evidence to support the claim T. the T.’s son had received medical attention. 16. Due to the COVID lockdowns, the T. was working from home, however due to the bedbugs, he was unable to work effectively. 17. The T. testified T. due to the bedbug infestation, he had to dispose of some of his property, including a sofa, both his A. his children’s beds, bedding A. clothing. The T. also purchased a steam cleaner ($733.37) F. the purpose of treating his own unit after the L.’s pest control company failed to treat the unit. The T. stated T. he had not used the steam cleaner in a way T. would have interfered with any pest treatments. 18. The T. stated T. the bedbugs continued to be an issue up to A. including the day the tenancy terminated. Bedbugs- L.’s Evidence 19. The L. agreed T. the rental unit had been treated nearly on a bi-weekly basis. The L. used the same company F. each treatment. The L. submitted several invoices F. pest treatments to support this evidence. 20. The L. did not contest T. T. T. was always prepared F. bedbug treatments. 21. The L. submitted cleaning logs from the superintendents of the rental complex showing T. steam cleaning of the hallways in the complex had occurred, as well as a regular cleaning schedule. The log only showed detailed entries from January 28, 2022, until April 8, 2022. However, the L. denies having agreed to having the hallways steam cleaned on a weekly basis. 22. The L. testified T. they had not instructed the T. to dispose of the box spring, A. only to remove it from the unit to allow the pest control company to better treat the unit. Under cross-examination, the L. was unable to show T. they offered any means of storing the box spring while the unit was being treated. O. Page 3 of 8  File Number: LTB-T-004250-22 23. The L. stated T. the source of the bedbugs was from a neighbouring resident in the complex. T. T. had failed to prepare his rental unit on a regular basis of the pest treatments. The issue was further exasperated by the fact T. the neighbour appeared, according to the L., to be not affected by the bed bug bites. 2023 ONLTB 39138 (CanLII) 24. The L. testified T. on January 26, 2022, the T. of the neighbouring unit was served with an N5 F. failing to properly prepare F. pest treatment. A hearing was held on this matter on January 23, 2023, in which a mediated settlement was reached. 25. The L. did not present any evidence of any other means of trying to improve the effectiveness of the pest control, such as entering the neighbouring resident’s unit A. overseeing, or aiding in preparation of the resident’s rental unit F. pest treatment. Bedbugs- Analysis 26. Pursuant to section 20(1) of the Act, the L. is required to maintain the rental unit A. rental complex in a good state of repair. 27. Pursuant to section 22 of the Act, a L. may not substantially interfere with the reasonable enjoyment of the T.’s rental unit or the residential complex. 28. In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, the Court of Appeal held T. the LTB should take a contextual approach A. consider the entirety of the factual situation in D. whether there was a breach of the L.’s maintenance obligations, including whether the L. responded to the maintenance issue reasonably in the circumstances. The court rejected the submission T. a L. is automatically in breach of its maintenance obligation as soon as an interruption in service occurs. In this case, the issue is whether the L. acted reasonably A. appropriately in response to the T.’s complaints about the bedbugs. 29. Bedbug treatments are a common issue brought before the Board. Generally, there is an initial treatment A. at least one follow-up treatment F. a unit before a bedbug issue is brought under control. Sometimes, extra follow-up treatments are required F. more severe infestations. 30. The parties have submitted T. from November 18, 2021 until April 1, 2022, there were fifteen bedbug treatments to the T.’s unit. Many of the reports stated T. bedbug activity was minimal, however, I am satisfied T. the treatment did not eradicate the pest issue at any point. 31. After the units had been treated, it was discovered T. another unit was the source of the bedbugs throughout the complex. The L. stated T. shortly after the source of the bedbugs was discovered, they gave T. T. a chance to prepare their rental unit, but when T. failed, they served T. T. with an N5- Notice to Terminate Tenancy F. substantial interference with the L.’s A. neighbouring Tenants’ reasonable enjoyment of the rental unit A. complex. O. Page 4 of 8  File Number: LTB-T-004250-22 32. The T. testified T. the bedbug infestations got worse as treatments were A.. The L.’s service records show a decrease in bedbug activity. The T. did not present any evidence to substantiate the claim T. the bedbug infestation was intensifying, however, the T. did present evidence T. the bedbugs were present right until the tenancy terminated. 2023 ONLTB 39138 (CanLII) 33. I am satisfied T. the pest treatments themselves were effective. I am satisfied T. the pest control company properly treated the units to the best of their abilities. The issue I find is whether the L. did enough to reasonably address the bedbug issue once it discovered the source of the bedbug infestation. 34. Based on the evidence before me, I am satisfied T. the L. did not act in a reasonable manner when it failed to address the source of the bedbugs in the complex once the source of the bedbugs was discovered. 35. I find T. although the L.’s approach was originally reasonable (they responded with a treatment within 4 days of the complaint), at some point after multiple treatments it ought to have been clear T. the treatments were not working A. T. a different approach was needed. 36. The L. did not submit any communications between itself A. the T. whose unit was the source of the bedbugs. There was no evidence regarding when the L. learned of the neighbouring T.’s bed bug issues, A. no evidence of the timeline of events from when the neighbour issue was discovered. There was no evidence T. help was offered A. either accepted or refused by the source unit’s T., to at least attempt to bring T. T.’s bedbug issues under control, A. by extension solve the rest of the complex’s bedbug issue. In short, the L. provided little, if any, evidence of the steps they took to resolve the issue beyond repeatedly applying treatments despite T. they did not appear to be working. 37. Based on this evidence, I find T. the L.’s response to the T.’s bedbug complaint was not reasonable, A. thus the L. failed to properly maintain the rental unit A. complex in breach of s. 20 of the Act. I find T. the L.’s failure substantially interfered with the T.’s reasonable enjoyment. Remedies 38. The T. is seeking the following remedies on the two applications: a) $1,700.00 rent abatement on the T2 application b) $1,700.00 rent abatement on the T6 application c) $ 6,790.58 to replace damaged or destroyed property including: i) $3,161.74 F. a sofa, ii) $739.63 F. a bed frame O. Page 5 of 8  File Number: LTB-T-004250-22 iii) $189.21 F. bedding iv) $1,200.00 F. carpet v) $1,500.00 F. clothing d) $25,000.00 F. out-of-pocket expenses, including the purchase of a $733.37 steam 2023 ONLTB 39138 (CanLII) cleaner, A. general damages. 39. A rent abatement is a contractual remedy, which is based on the idea T. if you pay 100% of the rent you, should get 100% of the goods A. services you are paying F., A. if not then you should be granted an abatement which represents the difference between what you are receiving A. what you are paying F.. In this instance, the T. was unable to fully use or enjoy the rental unit due to the discomfort caused by the L.’s failure to effectively treat the rental unit A. complex F. bedbugs. I am satisfied T. a rent abatement is reasonable under these circumstances. 40. In calculating a rent abatement, we need to ascertain at what point had the L. breached sections 20(1) A. 22 of the Act. 41. I find T. the breaches of the Act did not occur when the issue was first brought forward to the L. on November 14, 2021. At T. point, the L. was acting reasonably in getting pest control out to the T.’s unit within four days of making the complaint to the L.. However, I find T. when the L. had to engage the pest control company’s services F. the fourth time, on January 7, 2022, they ought to have reasonably been aware T. the pest control services being utilized were insufficient A. T. further action was required to rectify the situation. 42. I find T. a 20% total rent abatement from January 2022 until April 2022 is appropriate under these circumstances. I decline to duplicate an abatement simply because the T. brought two applications in respect of the same issue. However, in coming to this conclusion I have considered T. the L.’s breaches substantially interfered with the T.’s reasonable enjoyment of the rental unit. Therefore, the L. shall abate the T.’s rent by $1,360.00. 43. Pursuant to section 16 of the Act, a person entitled to claim an amount has a duty to take reasonable steps to minimize their losses. I find T., outside of the one box spring (which will be addressed shortly), the T. has not proven T. he attempted any other solutions to preserve his property, such as heat treatment (steam or hot water washing) or treating the individual furniture or clothing with additional pesticide. 44. However, I find T. the T. should be awarded $400.00 F. the loss of the box spring. The L. had acknowledged T. the box spring might be harbouring bedbugs A. asked the T. to remove the box spring from the unit F. one of the treatments. In their testimony, the L. stated T. they only asked the T. to remove the box spring, not to dispose of it. However, the L. did not offer any method of storing the box spring F. potentially isolating it F. separate treatment. I find it reasonable T. the T. would assume T. the L. meant F. the T. to dispose of the box spring. O. Page 6 of 8  File Number: LTB-T-004250-22 45. I find T. the T. should be awarded $100.00 towards the purchase of the steam cleaner. Although I am satisfied T. the T. purchased the steam cleaner solely F. the purpose of bedbug treatment, the T. is still in possession of this steam cleaner. If the goal of owning the steam cleaner was solely F. bedbug treatment, the T. could have sold the steam cleaner to recover some of his loss, however, he is still in possession 2023 ONLTB 39138 (CanLII) of the property, to use as he sees fit. Based on this evidence, I find it fair T. the L. only partially compensate the T. F. the steam cleaner. 46. I find T. the T. has not substantiated any other out-of-pocket claims or lost wages. The T. was unable to show evidence of any tangible loss of wages or any other expenses T. resulted from the bedbug issues in his rental unit. 47. I find T. the T. has substantiated the claim T. their household suffered stress A. inconvenience, however I find $25,000.00 to be an excessive claim. Therefore, I find T. $1,000.00 in general damages is reasonable in these circumstances to address the psychological impact of the L.’s breach. It is ordered T.: 1. The tenancy F. this rental unit is terminated effective April 30, 2022. 2. The total amount the L. shall pay the T. is $2,908.00. This amount represents: • $1,360.00 F. a rent abatement, • $400.00 F. the reasonable costs T. the T. has incurred to replace property T. was disposed of as a result of the L.’s actions, • $100.00 F. the reasonable out of pocket expenses the T. has incurred, • $1,000.00 F. general damages, A. • $48.00 F. the cost of filing the application. 3. The L. shall pay the T. the full amount owing by June 6, 2023. 4. If the L. does not pay the T. the full amount owing by June 6, 2023, the L. will owe interest. This will be simple interest calculated from June 7, 2023, at 6.00% annually on the balance outstanding. 5. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. O. Page 7 of 8  File Number: LTB-T-004250-22 May 26, 2023 Date Issued Robert Brown Member, L. A. T. Board 2023 ONLTB 39138 (CanLII) 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about this O., call 416-645-8080 or toll free at 1-888-332-3234. O. Page 8 of 8