Pain and Suffering Damages (RTA)

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.