Tuesday, 14 January 2014

Bedbugs and a tenant's victory: Divisional Court decision

Most tenants in Ontario are now aware of the bedbug resurgence in North America.  Its seems that everyone has had a bedbug problem or knows someone who has or knows of a building where bedbugs have been found.  The fact is that the pesticides that were once commonly used to eradicate bedbugs have been banned and now there is a resurgence of the bugs.  The current pesticides are not as effective in ridding apartments and homes of these pests.

The nuisance that is a bedbug infestation aggravates landlords and tenants alike.  Landlords are forced to incur significant expenses in paying for pest control that seems ineffective.  The presence of bedbugs makes tenants unhappy and unfortunately may unfairly attach a stigma to the rental property that it is unclean or not properly maintained.  The effect is that rents in the building go down as the empty apartments become more difficult to rent.

Tenants are very unhappy with bedbug infestations because they suffer in many ways.  They suffer bites and may become ill as a result of those bites.  Further the infestation requires the tenant to spend significant money in laundering everything in the unit presuming the standard treatment method.  With severe infestations the tenant may lose belongings because the bugs get into everything and it becomes impossible to kill the bugs.  The bedbugs may infest books, mattresses, picture frames, appliances--literally everything in an apartment that has a crack, texture, or an "inside".  Given the difficulty in getting rid of the bugs many tenants choose to throw out many of their belongings.  The impact of these bugs is broad.  Fearing spreading bugs or getting bugs, friends and family stop visiting and tenants often stop visiting the homes of their friends and family in fear of carrying these pests with them in clothing, bags, purses, etc..  Whether the extent of the reaction is rational or not the psychological impact of having bedbugs is profound.

Given the major impact of having bedbugs most people are surprised to learn that compensation for a tenant is not automatic when it comes to bedbug infestations.  There is no automatic abatement of rent, compensation for not having "quiet enjoyment", or damages for the suffering and loss of property that goes along with an infestation.  For the most part, if a Landlord responds diligently and in a timely manner upon notice of a bedbug infestation and retains licenced pest control experts and follows the advice of that expert then the usual outcome of a tenant's claim arising from a bedbug infestation is that there is no compensation and the case is dismissed.

The point of this article today though is that a recent decision in Khokhlov v. Metcap Living Management Inc., 2013 ONSC 7566 (CanlII), released by the Divisional Court in December 2013, confirms that tenants may indeed win damages for suffering through bedbug infestations.  The interesting award is in relation to a claim made for the rent differential between the rent that the tenant was paying in the old apartment (infested one) and the rent that she was paying in the new apartment that she moved to because her old landlord was not dealing with the infestation in a prompt manner.  The rent differential, over the course of a year was approximately $4000 and the tenant was awarded this amount by the Landlord and Tenant Board.   The Landlord appealed this award to the Divisional Court and this amount was upheld by the Divisional Court meaning that the Landlord does indeed have to pay the rent differential to the tenant (i.e. pay the difference between her old lower rent and her new higher rent).    The case itself highlights the sections and technical parts of the legislation that form the basis of the Board's jurisdiction for making the award.  

Any tenant who is suffering from a bed bug infestation would be wise to consult this case and apply the rationale of the decision to any claim that they would wish to assert.  All landlords should be aware of the consequences of not dealing with infestations in a timely manner.  The case may be found by searching the name on the Canlii site at www.canlii.org  .

Michael K. E. Thiele
Ottawa Lawyer

3 comments:

  1. Hi Michael,
    Thanks so much for dedicating yourself to answering so many questions on here. Your blog is incredibly resourceful. Unfortunately, I've been one to experience a bed bug problem in my current apartment unit. We've undergone two treatments already, and I've been under much distress trying to live out of garbage bags and boxes within my unit for the past month. I originally approached my landlord about giving notice, and the possibility of leaving in less than 60 days due to the circumstances - I no longer feel safe in my own unit. The manager had said I couldn't do so, but I could sublet my unit for a month or two. She also said I couldn't assign my lease to someone else since I am on a month to month term now. Is that true? I'm looking at a N9 form that says the tenant can give at least 30 day notice if the landlord has refused to allow the tenant to assign the rental unit. Would that apply in my current situation too? Or is that only applicable to someone who is under a year lease? Unfortunately, we've discovered more bug problems even after the second treatment and I've asked for a third fumigation at this point and staying here for an additional 60 days is not an option for my well being, I also do not feel comfortable subletting my unit given the circumstances. I'd never want to be responsible nor want this to happen someone else. What do you think? Your advice would be greatly appreciated! Many thanks!

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    Replies
    1. Hi Distressed: An interesting question and one that I've only considered peripherally over the years. Most often, tenants in your position simply give notice to terminate and the idea of assignment does not take hold. This is largely because the work involved in an assignment, the cost of credit checks and coordinating the prospective tenant with the new landlord is such that it is simply easier to give a Notice to Termination with 60 days notice to end of term (Form N9).

      That being said, I've taken a look through section 95 RTA and I don't see any reason why a month to month tenant can not b assigned to another tenant. The "term" that is taken is the month. After the expiry of the term the lease renews on a month to month basis. There isn't anything in the structure of section 95 that makes me think that an assignment is prohibited.

      So, on the strength of that, can you seek to terminate the lease on a refusal to allow assignment. Certainly the section 95 & section 96 provisions allow for that and I see from your comment that you are alive to the steps that need to be taken to terminate. If the facts fit the statute you can certainly give it a try. Worst case scenario the landlord chases you for an additional month of rent and you argue the point. On top of that, you have a claim for abatement of rent for the bedbugs and an argument that the premises are not fit for habitation. Take lots of good pictures of the infestation, keep track of your losses and pictures of the things you have to throw out an certainly you will have a very sympathetic case.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers

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    2. Hello, Michael!
      Thank you very much for the article!
      We faced the problem of cockroaches and bed bugs. The bed bugs I saw first time in my life and I feel really scared.... I can't live and sleep because I'm all itchy just looking at the submission that they are near.
      I'm renting a room in MetCap Living in London, ON. And when I moved in I was faced with the indifference of the management at the time when I started out, the room was not ready and I had 2 days to prove to the management, showing the photo, the room is not ready. Now here's the bugs.. because in the beginning I was inexperienced (the first time I rented an apartment) and didn't know how to answer absolute disregard for the tenant. Please, help me, what I need to o first, how I need to tell them about bed bugs. As I'm a student here, and I have money to pay for the fumigation. Thanks in advance! Anna

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.