General Damages (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	679
Page Categories:	[Human Rights (LTB)], [Interference of Reasonable Enjoyment (LTB)], [Section 31 (RTA)], [Section 34 (RTA)]
Citation:	General Damages (LTB), CLNP 679, <https://rvt.link/22>, retrieved on 2024-11-24
Editor:	MKent
Last Updated:	2024/07/26

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EAT-58948-16 (Re), 2016 CanLII 72081 (ON LTB)

34. The Tenant next requested $10,000.00 for “general non-pecuniary damages” and a further $10,000.00 for compensation for the injury the Tenant felt to his “dignity, feelings and self-respect” due to a breach of subsection 2(1) of the Human Rights Code.

35. First, the Tenant’s lawyer submitted no arguments as to how the Tenant’s rights under the Human Rights Code were breached. As a result, the request for compensation as a result of any alleged breach of the Human Rights Code is denied.

36. Second, on the question of an award for general damages, following the hearing, I researched whether the Board has the jurisdiction to award general damages, and found that it does. Subsection 31(1)(f) of the Act states that the Board may “make any other order that it considers appropriate”.

37. In considering whether and how much to award for general damages, I considered the impact that the Landlord’s many breaches of his obligations under the Act had on the Tenant. I accept the Tenant’s testimony that his pre-existing medical conditions of anxiety, a panic disorder, and major depression were exacerbated. I also accept that the Tenant felt exhausted, angry, frustrated, anxious, and bullied. I find that a reasonable award for general damages, given the extent of the Tenant’s distress, is $2,500.00. That amount shall be ordered to be paid by the Landlord.

SOT-97745-18 (Re), 2019 CanLII 86899 (ON LTB)

39. The Tenant requested an award in general damages based upon the Landlord’s egregious conduct pursuant to paragraph (f) of subsection 31(1) of the Act. The Ontario Divisional Court considered the application of this remedy in Mejia v. Cagini.[4] In that case, an unquestionably 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 the assault took place in the presence of the tenant’s family and that its purpose was to put pressure upon 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. As in the present case, the tenant in Mejia did not seek damages in tort, but rather damages arising out of the breach of his right to quiet enjoyment of his apartment, pursuant to the rental contract.

41. While I recognize that the facts in Mejia were substantially more extreme, the basis of the Divisional Court’s findings regarding unacceptable conduct that impaired the Tenants’ right to quiet enjoyment remain applicable to the present case. Following the analysis in Mejia, I find that the Landlord’s protracted and unlawful attempts to coerce and intimidate the Tenants into vacating the rental unit represented an outrageous breach of the rental agreement. As well, her reckless actions in exacerbating the conflict between the Tenants and A.H. could have foreseeably resulted in violence. In light of all of the circumstances, I find that an award of $2,000.00 in general damages for the Landlord’s breach of the Tenants’ contractual right to quiet enjoyment is warranted.

42. Although the Landlord’s Legal Representative noted the absence of any quantifiable losses to the Tenants in support of their request for damages such as medical evidence, in light of the analysis in Mejia, this is necessarily fatal to the request. As the Court noted with respect to the scope of now paragraph (f) of subsection 31(1) of the Act:

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.[5]

43. The Tenants withdrew their other requested remedies with respect to the T2 Application at the hearing.

TNT-12521-19-IN (Re), 2020 CanLII 31130 (ON LTB)

48. The Tenant did not request a rent abatement for the harassment and illegal entries. However, she did request an unspecified $25,000.00 for other remedies. Pursuant to subsection 31(1)(f) of the Act, I have discretion to make any other order that is appropriate.

49. Attempted entry in the middle of the night is frightening to a young woman living on her own, and in particular, when the intruders were three young men. She did not give admittance to the intruders, but they came to the door and intimidated her sufficiently to motivate her to call the police. Consequently, I find that it is appropriate to award the Tenant a $500.00 rent abatement for the attempted harassment.

HOT-02167-17 (Re), 2019 CanLII 86881 (ON LTB)

36. To be clear, I do not find an award of $2,500.00 to be automatic.  It is open to a landlord to show that a lockout had an unusually low impact on a tenant.  Likewise, it is open to a tenant to show that a lockout had an unusually high impact.  Absent unusual circumstances, however, I find $2,500.00 to be the normal award.

The first lockout

37. In the present case, there are no unusual factors that would affect the degree of distress the Tenant suffered as a result of the first lockout.  $2,500.00 in general damages will be awarded.

The second lockout

38. After the first lockout, the Board ordered the Landlord to restore the Tenant to possession.  The Landlord ignored the Board’s order.  The Tenant had to enforce the order through the Sheriff.  Five days later, despite the Board’s order, the Landlord locked the Tenant out again.

44. In Saadati v. Moorhead, [2017] 1 SCR 543, 2017 SCC 28 (CanLII), the Supreme Court of Canada held that medical evidence is not necessary to establish mental injury.  The Court upheld a trial court’s finding of mental injury based on the testimony of the plaintiff, and of his friends and family who testified that his personality had changed.

46. In short, I find that the impact of the second lockout was dramatically greater than the impact of the first lockout.  For the second lockout, general damages of $6,000.00 will be awarded.

Saadati v. Moorhead, 2017 SCC 28 (CanLII), [2017] 1 SCR 543

[31] Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects (Mulheron, at p. 88). Put simply, there is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme. As Thomas J. observed in van Soest (at para. 100), a negligent defendant need only be shown to have foreseen injury, and not a particular psychiatric illness that comes with its own label. In other words, the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them. Downloading the task of assessing legally recoverable mental injury to the DSM and ICD therefore imports an arbitrary control mechanism upon recovery for mental injury, conditioning recovery not upon any legally principled basis directed to the alleged injury, but upon conformity with a legally irrelevant classification scheme designed to facilitate identification of particular conditions (L. Bélanger-Hardy, “Thresholds of Actionable Mental Harm in Negligence: A Policy-Based Analysis” (2013), 36 Dal. L.J. 103, at pp. 113-15; Mulheron, at pp. 87-88).

(...)

[35] In short, no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury. Indeed, there is good reason to recognize the law of negligence as already according each of these different forms of personal injury — mental and physical — identical treatment. As the Court observed in Mustapha (at para. 8), the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort”. Continuing (and citing Page v. Smith, at p. 188), the Court explained that, “[i]n an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may . . . soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law” (emphasis in original; see also S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 124). This is entirely consistent with the Court’s longstanding view, expressed over a century ago, by Fitzpatrick C.J. in Toronto Railway, at pp. 269-70:

It would appear somewhat difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock . . . . The nature of the mysterious relation which exists between the nervous system and the passive tissues of the human body has been the subject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. . . . I cannot find the line of demarcation between the damage resulting to the human [body] . . . and that which may flow from the disturbance of the nervous system . . . . The latter may well be the result of a derangement of the relation existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The victim is incapacitated . . . .

Or, as Davies J. (as he then was) added in Toronto Railways (at p. 275), “[t]he nervous system is just as much a part of man’s physical being as the muscular or other parts”. In a similar vein, Lord Macmillan, in Bourhill v. Young (at p. 103), said “[t]he distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system.”

[36] It follows that requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. And it does so for no principled reason (Beever, at p. 410). I would not endorse it.

TST-54566-14 (Re), 2015 CanLII 36972 (ON LTB)

35. The Landlord’s application seeks damages pursuant to section 89 of the Act for the replacement cost of the oven, the cost of refilling the extinguisher, and the cost to repaint the unit. The total amount claimed is $1,801.73.

36. Subsection 89(1) of the Act says:

A landlord may apply to the Board for an order requiring a tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex and the tenant is in possession of the rental unit.

37. The first thing I would note about this wording is that a landlord can only claim an amount under this section related to physical damage to property. In other words this is not a general damages section. For anything other than physical damage to property a landlord must seek damages in a court of competent jurisdiction.

38. What this means is that the Landlord is not entitled here to the claim related to refilling the extinguisher. Although that cost is clearly related to the fire, the extinguisher was not damaged. Absent physical damage to the extinguisher the cost of refilling it is not recoverable under s. 89(1).

39. With respect to the stove, the wording of this provision also requires the Board to ascertain whether or not repairing the damage caused by the fire in the oven is reasonable. If it is then the Landlord is entitled to an order for the reasonable cost of repair. But if repairing the oven is not reasonable then the Tenant is liable for the replacement cost.