Pain and Suffering Damages (RTA)

Mejia v. Cargini, 2007 CanLII 2801 (ON SCDC)

12) Section 157 of the Act gives the Tribunal “exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act”.

13) Section 162 of the Act gives to the Tribunal “authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act”.

14) Having found as a fact that the landlord “harassed, threatened the tenant and interfered with the tenant’s use and enjoyment of the rental unit”, the Tribunal could grant remedies pursuant to the provisions set out in section 35 of the Act. That section provides in part that if the Tribunal determines that a landlord has done what the landlord did in this case, the Tribunal may, amongst a number of specific remedies “make any other order that it considers appropriate”.

15) Similar language was used in section 94(3)(c) of the Landlord and Tenant Act, the predecessor statute to the Tenant Protection Act, which provided that a judge to whom application was made to enforce obligations imposed under the statute, may “make such further or other orders as the judge considers appropriate”.

16) In Shaw v. Pajelle, [1985] O.J. No. 833, Montgomery J. sitting as a single judge of this Court held that section 96(3)(c) (later section 94(3)(c)) of the Landlord and Tenant Act gave the Court in a landlord and tenant proceeding, the power to award damages. In so doing, he held that the decision in Beyer et al v. Absamco Developments Ltd. et al, 1976 CANLII 733 (ON SC), 12 O.R. (2d) 768, which held to the contrary, was wrong.

17) In MacKay v. Sanghera, (2001) CarswellOnt 2349 (Div. Ct.) (e)(C), this court held that the residual clause in the Act, then section 34(1)(5) which permits the Tribunal to “make any other order that it considers appropriate” afforded a basis for an award of damages to tenants for consequential damage arising from a landlord’s breach of its obligations under the Act. See also Nesha v. Bezrukova, [2003] O.J. 3787 at para 4 [Div. Ct.]

18) Those cases and the grammatical and ordinary sense of the language giving the power to “make any other order that it considers appropriate” persuades us that the Tribunal has the power to award damages for breach of the contract of lease. To hold otherwise would be contrary to the intent of the legislature which gave to the Tribunal the jurisdiction under section 162 to which I have previously referred, to determine all matters arising out of the landlord and tenant relationship.

19) Accordingly, we find that the Tribunal was incorrect and erred in law in determining that it had no jurisdiction to award damages for breach of contact.

TST-57219-14-AM (Re), 2016 CanLII 53103 (ON LTB)

72. The Tenant claims damages arising from the Landlord’s breach in the nature of pain and suffering, in the amount of $2,000.00.

73. The Tenant testified that everything she owned was thrown away, including photographs from Jamaica, photographs of her deceased mother and her and her mother’s personal documents. She stated that she feels “really bad, empty and naked” with no family to turn to, and that, as at the date of the hearing, she is still trying to get back on her feet. She has been unable to replace any of the lost items as she is on a limited income via social assistance. As well, JG testified that, on October 15, 2014, when he spoke with the Tenant prior to the arrival of the police, she was “very upset”.

74. The Board has the authority, pursuant to subsection 31(1)(f) of the Act, to award damages for pain and suffering. The Divisional Court confirmed this jurisdiction in Mejia v. Cargini, [2007] O.J. No. 437 (Ont. Div Ct.) in circumstances where the damages claimed are the result of a breach of the landlord’s contractual or statutory obligations.

75. What the Tenant is claiming is general damages for pain and suffering, or what is commonly referred to as “non-pecuniary damages” because they are not damages directly related to a financial loss, but for pain and suffering. In my view, in connection with the type of damages claimed, I can accept both objective and subjective proof and, evidently, I would attach more weight to any objective evidence provided. In this case the Tenant provided no objective evidence and little subjective evidence.

76. Objective evidence may come from a medical witness, such as the individual’s physician, who can provide a credible explanation of the alleged impact and resulting pain and suffering and how such condition(s) was directly caused by the Landlord’s disposal of the Tenant’s belongings. The medical witness could also explain about any drug, physical, or mental therapy that is required to treat the condition and was prescribed. A comprehensive letter from the Tenant’s physician would have been helpful, however, no such letter was provided.

77. Testimony from lay witnesses, such as the Tenant’s friends and family may corroborate the Tenant’s allegations that her experience of losing all her belongings caused her to suffer as claimed. No such evidence was adduced. What I am left with is the Tenant’s affirmed testimony as outlined in paragraph 72, above.

78. The evidence led allows me to find that, on a balance of probabilities, the events surrounding the illegal disposal of the Tenant’s belongings, and immediately thereafter, were extremely upsetting and stressful to the Tenant. The Tenant lost all of her possessions including her clothing and personal effects, documents and photographs, mementos and sentimental items that cannot be replaced, all her furnishings and her pets. Clearly, this was devastating to the Tenant who had to, while living on a very limited income, start again with nothing.

79. The Tenant requested $2,000.00 for pain and suffering. However, she did not quantify this amount in any way or, as stated, provide any objective evidence in support of her claim. However, even if the Tenant had provided objective evidence, it is difficult to quantify an amount for something intangible, like mental distress. Nevertheless, here the loss of the Tenant’s possessions was a direct result of the Landlord’s breach of her statutory obligation to provide security of tenure, and given the impact of the loss of all the Tenant’s belongings, some amount for mental distress is appropriate—this is especially so given that the Tenant lives on a very limited income and, from one moment to the next, she found herself homeless and devoid of all her possessions, with the exception of what she had on her person.

80. The amount awarded above for compensation is, in my opinion, not sufficiently adequate to compensate the Tenant for the stress she experienced, because that amount simply places the Tenant in the position she was before her belongings were illegally disposed of by the Landlord. In my view, the Tenant is entitled to some damages for pain and suffering. Having considered all the above factors, I find that an award of damages for mental distress in the amount of $500.00 is appropriate and an Order will issue.

TST-99550-18-AM (Re), 2019 CanLII 87146 (ON LTB)

38. The Tenant asks that the Board order the Landlord pay her $4,000.00 for the pain and suffering he caused considering her exceptional circumstances of having her tenancy terminated unlawfully at a time when she was in her third trimester of her pregnancy. By virtue of paragraph 31(1)(f) of the Act, the Board has jurisdiction to make an order it considers appropriate where it finds that the landlord, among other things, substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household, which is the present case.

39. The leading authority on this remedy is the Ontario Divisional Court’s decision in Mejia v. Cagini, [2007] O.J. No. 437 (Ont. Div. Ct.). In that case, a toxic relationship between the parties culminated in an assault upon the tenant by three friends of the landlord in the presence of the landlord. The Ontario Rental Housing Tribunal found that the assault took place also in the presence of the tenant’s family and that its purpose was to put pressure on the tenant to vacate the premises. The tenant was required to attend hospital for treatment. The Tribunal did not find that the landlord had himself committed the assault but found that he did nothing to stop it and that he was responsible for the actions of his friends. The Tribunal found that the landlord had thereby interfered with the reasonable use and enjoyment of the apartment by the tenant and his family.

40. While I recognize that the facts in Mejia were substantially more extreme, the basis of the Divisional Court’s determination not to interfere with the Tribunal’s award of $500.00 in general damages for unacceptable conduct that impaired the tenant’s right to quiet enjoyment are analogous to the present case. In addition, because the Landlord is sophisticated in the sense that he controls a residential complex with numerous units, I find that an award of $1,000.00 as general damages is appropriate.

TST-50926-14-AM (Re), 2015 CanLII 9134 (ON LTB)

91. The Tenant’s amended application also seeks damages arising from the breach in the nature of pain and suffering. Given everything that happened here I am satisfied the Tenant’s request in this regard is reasonable. Abatement of the rent in part can compensate for some impact on a tenant of a landlord’s breach but it is intended to address the difference in value to what is being paid for and what is being received. Where a landlord’s behaviour is such that it causes great distress and upset an award for damages in the nature of pain and suffering is appropriate because abatement is inadequate to compensate for those intangible losses. This is such a case.

92. The Tenant’s application asks for $4,000.00 for damages. In my view this is not an unreasonable amount for the Tenant to ask and this request shall be granted.

93. Essentially what happened here is the Landlord decided to hound the Tenant to get her to move out and eventually he succeeded. She initially responded by telling him to leave her alone. As early as February 2, 2014, she suggested to him that if he wanted her to move out the proper way to go about it was to serve notice of termination. He ignored what she was saying. He ignored the police. He lied to them and said he lived there. Over and over again he went to the rental unit against police advice and glued notices to the door of the rental unit. The Tenant entered into evidence at least 12 identical notices all dated March 15, 2014, sticky with glue. They were left on multiple dates even though they are identical and all dated the same. Photographs of the door show the Landlord’s use of glue damaged the surface of the door. The Landlord’s behaviour was so aggressive and egregious that his own condominium corporation refused him access to the rental unit; in my experience such behaviour on the part of a condominium corporation is unheard of.

94. The Landlord’s behaviour unnerved and upset the Tenant. She cancelled social events to show her photographs. She sought homeopathic remedies to relieve stress. At the hearings before me she was visibly upset. In fact her upset was such that her behaviour was not entirely rational. At the last hearing date before me, prior to entering the hearing room, she went to the Board’s security staff and asked them to sit in on the hearing to protect her from the Landlord. This was unnecessary as the Landlord has never assaulted her, or even physically threatened her, and there were two previous days of hearing before that last day without incident. But her behaviour is consistent with the conclusion that the Tenant experienced a great deal of stress and upset because of the Landlord’s behaviour.

95. The Tenant’s application also seeks a cease and desist order. As stated above, as the Tenant no longer lives in the rental unit that request is no longer necessary.

96. The application as originally filed also asked the Board to issue an administrative fine. This request was withdrawn in the amended application and not sought at the hearing before me.

SOT-66343-15 (Re), 2016 CanLII 88179 (ON LTB)

18. On January 19, 2016, at approximately 12:30 a.m., the Tenant was about to go to bed, when the police banged on his door. He and the Landlord let the police in. The Landlord stood in the hallway with the Tenant as the police told the Tenant that he had to leave the unit. The Tenant tried to explain, showing them his lease. The police told the Tenant that the lease did not mean anything. The police woke up the Tenant’s children who became very upset. The Tenant’s daughters started crying and clinging to their father. The Tenant told the police that he had an application with the Landlord and Tenant Board. The police told him none would come out of it. The Tenant requested that the police call their supervisor, which they did and which did not change their mind. The Tenant and his children were given minutes to vacate the house in the middle of the night. The Tenant left with the clothes on his back, his medications and his ID.

19. The Tenant begged the police to let his children go in a cab to their mother’s home. The Landlord offered to pay for his children’s cab ride.

20. It was 1:30 a.m. There were no public buses operating at that time. It was minus 20 degrees outside. The Tenant told the police: “You might as well just shoot me”. He was handcuffed, put at the back of a police car and taken to the hospital.

21. The Hamilton police report summarized the events as follows:

On hearing that he had to leave, [Tenant] made a number of alarming remarks. [Tenant] advised “You might as well just shoot me”, “I’d rather die,” “I’ll just go and walk in front of a train”, “I’m mentally ill”, and “I’m suicidal”....[Tenant] went on to advise that he suffers from PTSD, Anxiety, Clinical Depression and SAD. He advised that he served two tours of duty during the Vietnam War as a “tunnel rat”. [Tenant] further advised he is seen by a Psychiatrist…., once every three months or so for medication review and that he sees a therapist weekly through the CMHA. …

[Tenant] was apprehended under S17 of the Mental Health Act. Officers felt [Tenant] posed a danger to himself as a result of a mental disorder and was not equipped to deal with this sudden stressor.

22. With reference to the Freedom of Information documents, the Tenant’s counsel phoned the police on January 20, 2016, requesting that they facilitate the Tenant’s return into the home. The police contacted the Landlord and noted “owner + “roommate” does not want him to return”.

23. Upon his release from the hospital on January 20, 2016, the Tenant stayed at a shelter for homeless people, then at Comfort Inn, paid through a loan from his brother (who resides in Alberta) until he was able to find placement elsewhere.

24. The Tenant testified, and I accept, that he has had recurring nightmares about the eviction. He would wake up 2 to 3 times a night, terrified, unable to sleep. The Tenant’s Psychiatrist, Dr. P, confirmed the Tenant’s extreme distress as a result of the eviction. In a letter dated February 8, 2016, Dr. P confirmed that the incident was very traumatic for, and had a devastating effect on the Tenant. Dr. P initiated him on new medication, instructed his staff to remain in touch with the Tenant, and scheduled to see the Tenant within two (2) weeks. In a letter dated August 24, 2016, Dr. P stated that he increased the dose of the Tenant’s two (2) medications because the Tenant was having nightmares about the eviction. The Tenant’s CMHA case worker also confirmed that the January 19, 2016 eviction caused his anxiety levels to rise and night terrors to occur. As summarized by Dr. P in his letter dated February 8, 2016:

…the said incident appears to have left a considerable impact on his mental state, his well-being…In some ways this has set him back and has caused an adjustment reaction and he has asked me to see him a little more frequently to help him get back on his feet.

25. Further, as a result of the January 19, 2016 eviction, the Tenant did not see his children for over two (2) months. The Children’s Aid Society (CAS) conducted an investigation in regard to the allegation that his children were at risk of harm due to his mental health interfering with his ability to provide appropriate care to them. On April 7, 2016, the CAS closed the investigation, determining that the concern was not confirmed.

26. The Tenant’s 16 year old son TW gave credible evidence that the illegal eviction left him shaken and impacted his attention span at school. He also testified that he had never seen his sisters cry as much as they did on the night of the eviction.

34. The Tenant shall also be entitled to general damages in the sum of $3,000.00 for emotional distress, pain and suffering, with reference to paragraph 18, 19, 20, 21, 22, 23, 24, 25 and 26 above.

35. The Board has not hesitated to award general damages, to compensate a tenant for intangible injury, such as distress and mental anguish, under Section 31 (1) (f) of the Residential Tenancies Act, 2006

36. In Re File No. TST-01092, 2008 LNONLTB 2 (L.T.B.), a tenant who was illegally locked out and whose belongings were removed, was awarded $10,000.00 in damages. In Re File No. EAT-00076, 2007 LNONLTB 56 (L.T.B.), a tenant who suffered from paranoid schizophrenia, and who was illegally locked out, was compensated in the sum of $1,000 for mental anguish. In Re File No. TST-00142, 2007 LNONLTB 47 (L.T.B.), a tenant with mental illness, misled into signing an agreement to terminate and evicted by the Sheriff, was awarded $1,000.00 damages.

37. There will be no separate award for mental suffering of the Tenant’s children. The award of $3,000.00 contemplates the pain and suffering of the Tenant and his household. I must state however that the award is primarily to compensate the Tenant whose mental and emotional suffering was evident during his testimony, as observed by the Board. In quantifying the Tenant’s mental anguish, I am mindful of his mental health condition and have considered that the Landlord was aware that the Tenant was vulnerable.