Mice & Rodent Abatements (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1839
Page Categories:	[Maintenance Abatements (LTB)]
Citation:	Mice & Rodent Abatements (LTB), CLNP 1839, <5S>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2022/01/03

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TST-61589-15 (Re), 2016 CanLII 39765 (ON LTB)

19. While there does not appear to be a dispute that there was a rodent infestation in the unit, the evidence was unclear about whether the infestation involved rats or mice. In any event, “rat” and “mouse” are not scientific classifications; but, generally speaking, rats are larger than mice. For the purpose of the issue(s) before me, and as the type of rodent will not affect my analysis, I will refer to the rodents as mice.

20. Both Tenants testified that they first observed mice in the unit on February 28, 2015. The issue was immediately reported to the superintendent who attended at the unit on the same day. The superintendent returned again the following day and filled in some holes in the unit. The pest control company attended at the unit on March 3 and 5, 2015 and placed some poison and glue traps in the unit. Tenant GS testified that, on March 5, 2015, the pest control technician who attended at the unit removed an unopened peanut butter jar from the Tenants’ cupboard without authorization, opened it, and used some of the peanut butter to bait the mice traps that he had placed in the unit.

21. Both Tenants testified that the mice infestation was not resolved and continued up to the date they vacated the unit on July 31, 2015. The Tenants produced photographs showing, what appears to be, a mouse in a common hallway of the complex and large mousetraps and a mouse on the exterior grounds of the complex. The Tenants also produced three photographs of mice droppings in the unit.

...

36. Given the evidence before me, including the photographs of vermin droppings in the unit and live mice in and outside the complex, I am satisfied that the Landlord is in breach of s. 20(1) of the Act because the unit has not been vermin free during the entirety of the tenancy. As stated, RP testified that, given the age of the complex, the mice problem cannot be avoided. RP further testified that the large mice traps on the exterior of the complex had been in place for about five years. As such, it cannot be said that the Landlord was unaware of the complex’s mice problem.

37. In Offredi v. 751768 Ontario Ltd 1994 CanLII 11006 (ON SCDC), [1994] O.J. No. 1204, the Divisional Court stated: “The question of fault on the landlord’s part is not the issue... What the tenants claim is a breach of contract. The tenants were paying full rent for premises which the landlord was under an obligation… to keep in a good state of repair and fit for habitation. The landlord failed to do that. That is the basis for the claim for an abatement …”

38. In this case, the Tenants did not get what they paid for. They paid rent for a unit that, as a result of a mice infestation, was rendered unfit for habitation from February 28, 2015 to July 31, 2015. The Landlord was in breach of subsection 20(1) of the Act and, by virtue of that breach, the Landlord also substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenants or members of their household. Accordingly, the Tenants are entitled to a rent abatement.

39. In light of the Tenants’ and Landlord’s evidence, I find, on a balance of probabilities, that the residential complex and the unit were moderately infested with mice. Based on my knowledge of similar cases, the duration of the problem, the impact on the Tenants on a daily basis, I am satisfied that the Tenants are entitled to an abatement of 10% of the rent for the period from February 28, 2015 to July 31, 2015 (154 days), which totals $875.90. I considered awarding a higher abatement amount, however, I did not do so in light of the absence of written complaints by the Tenants and their insistence, contrary to the Act, that they be present during treatments after March 5, 2015.

TST-57522-14 (Re), 2015 CanLII 9136 (ON LTB)

7. I also prefer the Tenants’ evidence that mice were present in the rental unit and residential complex from May 2014 to November 2014. I accept the Tenants’ evidence that the Landlord asked the Tenants to purchase mouse traps and poison to address the presence of mice at the property. I accept the Tenants’ evidence that the Landlord asked the Tenants to purchase additional traps for the Landlord’s own use in his main floor unit.

...

14. I find that it is appropriate to order the Landlord to pay a 25 percent abatement for the rental unit’s plumbing problems. The Landlord shall pay a 10 percent abatement for the presence of mice. The Landlord shall pay a five percent abatement for the absence of a smoke detector. The Landlord shall pay an additional five percent abatement for the absence of a functioning air conditioning unit. The Landlord shall also pay a five percent abatement for failing to provide a functioning smoke detector.

15. The total rent abatement the Landlord shall pay to the Tenants is $2,975.00.

TST-02871-19 (Re), 2019 CanLII 87037 (ON LTB)

Analysis

27. In Onyskiw v. CJM Property Management Ltd. (2016 ONCA 477) the Ontario Court of Appeal determined that a landlord is not automatically in breach of their maintenance obligations under section 20 of the Act as soon as a problem arises: rather, a contextual approach is necessary in determining whether or not a landlord has breached their maintenance obligations. That approach involves a consideration of the “entirety of the factual situation”, including whether the Landlord’s attempts to perform the needed repairs were reasonable in the circumstances.

28. I have taken into account the entirety of the factual situation including the scope of the problem and the efforts involved in resolving it. In this context, I find that the Landlord is in breach of his maintenance obligations under section 20 of the Act.

29. At the heart of the problem is the undisputed continuing existence of rat mites in the rental unit since January 2018. Aside from the fact that there was significant delay on the part of the Landlord in providing chemicals for the Tenant to spray the unit due to the Landlord’s insistence on a release for liability for harm to the Tenant’s pets when they had long departed the unit, it is also undeniable that the Landlord has thrown up his hands and decided not to address this problem believing it is impossible to rid the unit of them without first attempting to exterminate rats and mice that may be in the residential complex.

30. The Landlord dallied over obtaining a release from the Tenant; he delayed retaining a pest control service provider with expertise in ridding the unit of rat mites and has not provided any independent evidence from Aetna that it has that expertise. There are also no documents from Aetna regarding the work it has performed. But, more importantly, early on the Landlord recognized the unit would not be fit for habitation for an indefinite period, if ever, because of the difficulty in locating and eliminating rodent nests and rodents and rat mites in the residential complex.

31. I am satisfied there likely are rodents nesting in between the Tenant’s floor and the ceiling of the unit underneath. However, I heard no evidence that the Landlord has attempted even obvious measures such as sealing the residential complex against entry by rodents, including all vents and electric service entry points with rodent-proof material; checking for entry points around chimney and between loose shingles; and sealing doors and windows tightly. Instead, what I saw were photographs of large gaps in the siding near the ground. The Landlord insisted that these could not be entry points for rodents because there is a foundation behind those gaps but did not support this claim with expert testimony.

32. It may be so that there is no lawful way to exterminate rat mites by chemicals in which case I find the rental unit is unfit for habitation. Since it is the Landlord’s responsibility under subsection 20(1) of the Act to provide and maintain 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, I find the Landlord is in breach of this responsibility. Clearly, the rental unit should not be offered for rent to a tenant if it cannot be made fit for habitation. Accordingly, the Tenant is entitled to a rent abatement for the inconvenience and disruption that he has suffered through as a result of the significant continuing existence of rat mites.

Remedy

33. The Tenant is seeking a rent abatement of $11,388.00 based upon a full refund of rent from February 2018 to January 2019, together with $249.48 for treatment of the Tenants’ three cats and one dog to rid them of rat mites and requiring the Landlord to clean out rat/mouse nests inside and outside the rental complex and fill entry holes.

34. I do not fault the Tenant for not accepting the Landlord’s offer to terminate the tenancy early despite the likely existence of rat mites in the rental unit and rodents in the residential complex. That is because it was conditional on the Tenant not obtaining a rebate for some of rent that had been paid and return of only a portion of the last month’s rent deposit.

35. Since the Landlord was unable or unwilling to fulfill his maintenance obligation he is obliged to return the rent paid by the Tenant for the period the Tenant has not been able to occupy the rental unit free and clear of rat mites which began on January 25, 2018 when the Landlord was first notified of the problem to the present. The Landlord is not required to reimburse the Tenant for the treatment of his pets as the Landlord was unaware of the problem prior to their having become infested. The Landlord is obliged to return the last month’s rent deposit to the Tenant.

36. Because of the lack of any predictable date for eradication of the problem of rat mites and rodents, the tenancy is terminated.

It is ordered that:

1. The tenancy is terminated effective January 31, 2019.

2. The Landlord shall pay to the Tenant a rent abatement of $11,388.00 and return the last month’s rent deposit of $949.00.

3. The Landlord shall pay to the Tenant the application filing fee in the amount of $45.00.

4. The total amount the Landlord owes the Tenant is $12,382.00.

5. The Landlord shall pay the Tenant the full amount owing by April 30, 2019.

SOT-05596-10 (Re), 2010 CanLII 48718 (ON LTB)

Determinations:

1. The Landlord breached his obligation under S. 20 of the Act. There are bedbugs, mice and cockroaches in the unit, a crack in the bathroom ceiling; broken laundry facilities and kitchen appliances; and a broken mailbox.

...

It is ordered that:

1. The Landlord shall pay the Tenants a rebate of $1300.00 for the maintenance issues which represents 25% abatement of rent for the months December 2009 to July 2010 inclusive.

TST-62285-15 (Re), 2016 CanLII 39764 (ON LTB)

40. The Tenants’ evidence is that there was a mice infestation in the unit, and in the complex, from the outset of the tenancy to the time they vacated the unit. The Tenants first advised JH about the problem in early December 2014 when they discovered mouse droppings in the oven located in one of the shared kitchens. The Tenants acknowledge that a pest control company attended at the complex in January 2015, placed traps in the complex, including in the Tenants’ unit, and returned two weeks later to check on the traps. PD testified that when she returned from Winnipeg on January 4, 2015, she discovered mouse droppings in the unit. PD also testified that that the pest control company sprayed the unit in April 2015 and when she returned to the unit in late June 2015 to retrieve some belongings the problem appeared to be resolved.

41. The email exchanges between the Tenants and the Landlord are rather telling in connection with the mice infestation. In an email to the Tenants on April 14, 2015, the Landlord acknowledges that the Tenants informed him of the problem in “early December [2014]” and that he called the pest control company immediately. The Landlord then goes on to blame the Tenants for the problem because they “do not keep the house clean”. The Landlord repeated this position in his written and oral testimony during the hearing.

42. On April 14, 2015, the Tenants sent a reply email to the Landlord stating that, while the pest control company did initially attend at the complex in December 2014, the Tenants caught five mice since the pest control company’s initial visit. In another email, the Tenants advise the Landlord that, since the outset of the tenancy, the complex’s tenants caught a total of 15 mice using various methods.

43. The Tenants’ assertion that the unit and complex were not effectively treated for the mice infestation from December 2014 to April 15, 2015 is corroborated by another email from the Landlord to the Tenants on April 14, 2015, wherein the Landlord states that he was under the impression that his “premium package” with the pest control company only included four treatments per year. It appears that the Landlord only confirmed that his pest control package includes “unlimited services” on April 14, 2014 when he was so advised in an email by the pest control company on that same date, and which email confirmation the Landlord forwarded to the Tenants.

44. While the parties agree that the complex and the unit were treated for the mice infestation in January 2015 and sometime around mid-April 2015, the Landlord did not provide any corroborative evidence in this regard, such as an invoice from the pest control company. Nevertheless, given the evidence before me, I am prepared to find, on a balance of probabilities that the unit and the complex were treated for the mice infestation sometime in January 2015 and sometime in April 2015.

45. However, given the evidence before me, I find, on a balance of probabilities, that no additional pest control treatments were performed in the unit or the complex. This is especially so given the email correspondence between the parties submitted during the hearing, some of which has been referred to above, and the Landlord’s failure to produce any corroborative evidence to support his position—especially pest control invoices, which are routinely produced by landlords who appear before the Board. The Landlord did produce a rather intriguing document, allegedly provided to him by his pest control company, and which references the presence of rodent activity in the complex, dirty kitchens and a recommendation that the garbage be taken out more often. This document is undated, does not refer to any particular unit in the complex or when the complex was visited or treated and does not bear a price charged for the alleged services provided. The document is entirely unhelpful and was given no weight.

46. Subsection 20(1) of the Act states: “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”.

47. Subsection 20(1) of the Act does not contain an element of fault. Therefore, the reasons for a landlord’s breach of subsection 20(1) are not relevant. Regardless of the reasons why a landlord is unable to provide a rental unit in a good state of repair and fit for habitation, if they are unable to do so, they are in breach of their obligation under the Act.

48. A landlord’s maintenance obligations and the irrelevance of fault was considered by the Divisional Court in Offredi v. 751768 Ontario Ltd 1994 CanLII 11006 (ON SCDC), [1994] O.J. No. 1204. In that case the Divisional Court stated: “The question of fault on the landlord’s part is not the issue... What the tenants claim is a breach of contract. The tenants were paying full rent for premises which the landlord was under an obligation… to keep in a good state of repair and fit for habitation. The landlord failed to do that. That is the basis for the claim for an abatement …”

49. In this case, the Tenants did not get what they paid for. They paid rent for a unit that, as a result of a mice infestation, was rendered unfit for habitation from December 2014 to mid-June 2015, when the Tenants vacated the unit. The Landlord was in breach of subsection 20(1) of the Act and, by virtue of that breach, the Landlord substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenants or members of their household. Accordingly, the Tenants are entitled to a rent abatement.

50. In light of the Tenants’ uncontradicted evidence, I find that the residential complex and the unit was more than only moderately infested with mice. Based on my knowledge of similar cases, the duration of the problem, the Landlord’s wholly inadequate and ineffective response to the infestation, which response appears to be in part based on the Landlord’s attitude that the Tenants were to blame for the mice problem and the impact on the Tenants on a daily basis, I am satisfied that the Tenants are entitled to an abatement of 20% of the rent for the period from December 15, 2014 to June 13, 2015 (180 days), which totals $946.80.