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
Tuesday, 14 January 2014
Bedbugs and a tenant's victory: Divisional Court decision
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