Tuesday, February 15, 2011

Well Reasoned LTB Bed Bug Decision


Here’s a decision on a case of mine at the LTB, just released, that took a year to conclude.  The legal clinic, Neighbourhood Community Legal took an unreasonable and defiant position considering the overwhelming evidence against the tenant.  The matter was before the Board 5 times in special hearing blocks.  By the time the order was written by Member Pilon, 13 months after filing, 7 of 30 tenants had moved out of the building.  It was an application by a landlord for eviction based on interference with enjoyment, with the landlord’s lawful right, interest and privilege, and for damage.  I want to make it clear that it was not Member Pilon who caused any delay, but the Board's scheduling backlog.

My closing arguments to the Member included a respectful submission that the Board needs to develop an approach to these cases, and currently there is none...it’s all over the map.  I suggested to the Member that assessing blame in bedbug cases is almost impossible, but that in the midst of this public health crises, the Board needs to send a message that they will evict if tenants don’t respond reasonably to efforts by the landlord to resolve the problem.  I suggested that the Board needs to look at the interplay between sections 33, 34, 36 and 20 harmoniously and determine who has breached their obligations.
 
Under the Residential Tenancies Act the tenant has section 33, 34 and 36 obligations.

Tenant’s responsibility for cleanliness
33.  The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it. 2006, c. 17, s. 33.

Tenant’s responsibility for repair of damage
34.  The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant. 2006, c. 17, s. 34.

36.  A tenant shall not harass, obstruct, coerce, threaten or interfere with a landlord. 2006, c. 17, s. 36.


The landlord has section 20 obligations, which means that once they discover the problem, they need to resolve the problem quickly and for the time being, at their expense, howsoever caused. 

Landlord’s responsibility to repair
20.  (1)  A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. 2006, c. 17, s. 20 (1).

But once the landlord starts to undertake the work of remediation, the landlord has a right to file a section 69 eviction application pursuant to a section 62 and 64 notice if the tenant does not act as a partner in the cleanup. 

62.  (1)  A landlord may give a tenant notice of termination of the tenancy if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex. 2006, c. 17, s. 62 (1).

64.  (1)  A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. 2006, c. 17, s. 64 (1).

The Board Member did just that, looking at the landlord’s efforts and reasonableness, contrasted to the tenant’s obstructive behaviour in determining who had met their obligations under the Residential Tenancies Act.  There were also issues of damages based on expenses incurred by the landlord in rectifying the problem.  This should be a model for this type of case. Here it is:

Bedbug Case LTB

Unfortunately this Board tends not to have consistency of decision making and consistent approaches, a hallmark of a properly functioning administrative agency. 

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