Rat Infestation (LTB-Maintenance)

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

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.