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.