Property Uninhabitable: Sewer or Flood

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2015
Page Categories:	[Landlord and Tenant (Residential)], [Section 19 (RTA)], [Section 20 (RTA)], [Section 37 (RTA)], [Section 39 (RTA)]
Citation:	Property Uninhabitable: Sewer or Flood, CLNP 2015, <>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/02/15

Need Legal Help?
Call (888) 655-1076

Join our ranks and become a Ninja Initiate today

Residential Tenancies Act, 2006, S.O. 2006, c. 17

Frustrated contracts

19 The doctrine of frustration of contract and the Frustrated Contracts Act apply with respect to tenancy agreements. 2006, c. 17, s. 19.

PART III

RESPONSIBILITIES OF LANDLORDS

Landlord’s responsibility to repair

20 (1) 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. 2006, c. 17, s. 20 (1).

Same (2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement. 2006, c. 17, s. 20 (2).

...

Termination only in accordance with Act

37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

...

Restriction on recovery of possession

39 A landlord shall not recover possession of a rental unit subject to a tenancy unless,

(a) the tenant has vacated or abandoned the unit; or

(b) an order of the Board evicting the tenant has authorized the possession. 2006, c. 17, s. 39.

Frustrated Contracts Act, R.S.O. 1990, c. F.34

...

Adjustment of rights and liabilities

3 (1) The sums paid or payable to a party in pursuance of a contract before the parties were discharged,

(a) in the case of sums paid, are recoverable from the party as money received for the use of the party by whom the sums were paid; and

(b) in the case of sums payable, cease to be payable. R.S.O. 1990, c. F.34, s. 3 (1).

...

LORD STRATHCONA S.S. Co. Ltd. et al. v. DOMINION COAL Co. Ltd.

...

The questions will be dealt with in their order.

1. On the question of frustration their Lordships are clearly of opinion that this doctrine, which has been must developed and commented upon in recent years, cannot be applied to the facts of the present case. Put shortly, frustration can only be pleaded when the events and facts on which it is founded have destroyed the subject-matter of the contract, or have, by an interruption of performance thereunder so critical or protracted as a whole, to bring to an end in a full and fair sense the contract as a whole, so superseded it that it can be truly affirmed that no resumption is reasonably possible.

It is a mistake to say that the doctrine of frustration is a hard and fast doctrine which can be applied as a general principle in a definite measure to all cases alike. The facts and circumstances of each particular contract as well as the nature and duration of the interruption to performance must all be taken into account...

...

NOT-18722-15 (Re), 2015 CanLII 33112 (ON LTB)

...

12. The CAS worker contacted the health inspector due to a sewer back up and lack of water supply. The Tenants were ordered to vacate the rental unit by the CAS worker and this was confirmed by the health inspector. On March 6th the rental unit there was an inspection by the local health unit in the presence of MB, the Landlord, and the CAS worker.

13. Because the Tenants were ordered to vacate they were given emergency accommodations at Village Inn from March 4, 2015 for two weeks through the Red Cross and Ontario Works. After two weeks MB moved to a woman’s shelter and her co-tenant, SB, was incarcerated at this time.

14. MB was told by the health inspector she could only return to the rental unit to remove her property but not to stay overnight and her children were not permitted to return at all.

15. MB stated the Landlord was instructed the rental unit could not be rented until repairs were made.

16. A sewer pipe froze in the basement causing a back-up. There was no evidence presented that the Landlord has repaired the sewer pipe. The Landlord indicated at the hearing she does not wish the Tenants to return and will not be doing repairs.

17. The Landlord believes the pipe froze because the Tenants unplugged a portable heater in the basement. MB denies unplugging the heater and testified it was not near the sewer pipe but by the hot water tank and was unplugged by the CAS worker as a hazard. No evidence was submitted by the Landlord to prove this belief.

18. Even if the Landlord is not responsible for the issues at the rental unit the Landlord is obliged to ensure the rental unit is fit for habitation and does not contravene any maintenance, safety or health standards.

...

29. After the Tenants vacated the rental unit on the instruction of the health inspector SB continued to go to the unit to pick up personal items and feed her cats.

30. On April 1st SB attended at the rental unit and found the locks had been changed.

31. The Landlord confirmed she changed the locks and has not provided the Tenants with a key.

32. Section 26 of the Act provides that the Landlord shall not alter the locking system without providing the Tenants with a replacement key.

33. The Landlord stated that she was entitled to take possession of the rental unit and consider the tenancy terminated under the Frustrated Contracts Act. The Landlord provided no information or legal argument that the tenancy agreement has been frustrated.

34. The rental unit is currently uninhabitable due to the Landlord’s failure to take steps to make repairs to the wood stove, the sewer pipe and the water system. There is no evidence that these repairs cannot be made and upon completion the unit would be capable of occupancy. The legislation referred to by the Landlord would be more applicable when the rental unit has been destroyed and cannot be restored for occupancy. The maintenance issues in the rental unit are temporary.

35. The tenancy has not been terminated in accordance with the Act. The Tenants have not given notice that they wish the tenancy terminated, the parties have not agreed to a termination of the tenancy, and the Landlord has not served any termination notice or received an order of the Board regarding termination. Accordingly upon completion of the repairs the Tenants are entitled to return to the rental unit at the same monthly rent.

36. The Landlord is obligated to provide the Tenants with a key to the rental unit.

37. SB stated that she wishes to return to the rental unit upon completion of the repairs. In the event that SB wishes to terminate the tenancy for any reason she is required to provide the Landlord with appropriate notice or have an agreement with the Landlord for termination of the tenancy.

38. Until the Landlord provides the Tenants with a key the Landlord is responsible for the Tenants property remaining in the rental unit.

It is ordered that:

1. The Tenants application for illegal entry and harassment is dismissed.

2. Landlord shall pay to the Tenants the total sum of $1,131.27 for the following:

• $160.00 as compensation for purchased wood;

• $621.27 for rent paid in March after the rental unit ceased to be habitable; and

• $350.00 for rent abatement for failure to maintain

3. The Landlord shall pay the Tenants the full amount owing by May 2, 2015.

4. If the Landlord does not pay the Tenants the full amount owing by May 2, 2015 the Landlord will owe interest. This will be simple interest calculated from May 3, 2015 at 2.00% annually on the outstanding balance.

5. If the Landlord does not pay the Tenants the full amount owing by May 2, 2015, the Tenants may recover this amount by deducting $700.00 from the rent each month commencing on the date that the Tenants are given occupancy of the rental unit under this order until the full amount has been paid.

6. The Tenants have the right, at any time, to collect the full amount owing or any balance outstanding under this order.

7. On or before June 30, 2015 the Landlord shall do the following:

• Repair the wood stove

• Arrange for inspection of the stove and chimney by a WETT certified inspector

• Repair the sewer pipe in the basement

• Investigate and repair the water system and provide a certificate from the public health unit that the water supply is potable

8. Upon completion of the aforementioned repairs the Landlord shall immediately advise the Tenants, in writing, that the rental unit is available for occupancy. The Tenants shall pay rent commencing one week following the date of the Landlord’s written notice the rental unit is ready for occupancy.

9. The Tenants shall immediately provide the Landlord, in writing, their mailing address for the purposes of paragraph 4 of this order.

10. Immediately upon receipt of this order the Landlord shall provide the Tenants with a replacement key for the rental unit.

NOT-17275-14 (Re), 2014 CanLII 61812 (ON LTB)

Determinations:

1. HW’s bachelor rental unit and ES’s single room apartment were both located in the lower level of the residential complex.

2. The older residential complex has a weeping tile structure that connects into the municipal sewage system. On August 30, 2014, the City of Greater Sudbury experienced 7 hours of abnormally high rainfall (Landlord exhibit #1). The high volume of rain water resulted in a back up of the residential complex sewer drain. Rain water and sewage caused contamination damage to ES’s apartment.

3. HW offered no evidence that the contaminated water entered her rental unit.

4. ES and MD acknowledged previous sewage system overload and water infiltration into the basement (for the same reason) prior to HW moving into her rental unit in March 2011. This was the first flood event during HW’s tenancy.

5. Sub-section 20(1) of the Residential Tenancies Act 2006 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”. The infiltration of sewer water in to the lower level caused by an unusual catastrophic event. It was not due to the Landlord’s failure to maintain the residential complex.

6. The presence of sewage in the lower level of the residential complex along with a strong foul smelling sewage odour temporarily rendered both rental units uninhabitable as of August 30, 2014. The Landlord was then obligated to undertake remediation and repair the damaged lower level of the residential complex in a timely manner.

7. MD’s identified that the basement area HW’s apartment was fit for habitation / occupancy as of September 8, 2014. This statement was not challenged or disputed by HW.

8. ES and HW both no longer reside in their respective rental units.

9. MD denied HW’s claim that the shower stall and cement laundry tub both contain mold. MD offered no evidence (photographic or other) to support her claim of the presence or the nature of mold (mildew?).

10. In all application before the Board, the onus is on the applicant to prove his or her case on a balance of probabilities. HW has not met the burden of proof required to support a determination that the Landlord was in serious breach of his maintenance responsibilities under s.20(1) of the Residential Tenancies Act. The Landlord is not obligated to pay the $45.00 application cost.

11. HW claimed that she was left with no alternative but to permanently move out of her rental unit on August 30, 2014 due to a lack of maintenance. This claim is without merit.

12. HW’s rental unit was once fit for habitation again on September 8, 3014. HW was not obligated to pay compensation to the Landlord during the restoration period. HW was, however, obligated to resume her tenancy effective September 8, 2014.

13. Subsection 37(1) of the Residential Tenancies Act 2006 states: “A tenancy may be terminated only in accordance with this Act”. HW did not terminate her tenancy in accordance with the provisions of the Residential Tenancies Act 2006.

14. Section 16 of the Residential Tenancies Act 2006 which states: “When a landlord or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses.” Upon becoming aware that HW had permanently moved out of her apartment without proper notice, MD was then obligated to advertise for a replacement tenant in an effort to minimized HW’s requirement to pay rent for September 2014 and October 2014 (s.16 loss). MD chose not to seek a replacement tenant. MD decided to convert ES’s single room rental unit and HW’s bachelor apartment into one single rental unit.

15. HW’s former rental unit ceased to exist once the apartment amalgamation work commenced in September 2014.

16. Subsection 106(10) of the Residential Tenancies Act 2006 states: “A landlord shall apply a rent deposit that a tenant has paid to the landlord or to a former landlord in payment of the rent for the last rent period before the tenancy terminates”. The last month of tenancy for HW’s former rental unit was August 2014. HW paid rent for August 2014 and MD is now obligated to return HW’s $400.00 last month rent deposit. This is the only remedy granted under the Tenant Application about Maintenance (T6).

NOT-08732-12-RV (Re), 2012 CanLII 86892 (ON LTB)

...

Determinations:

1. The order issued on July 24, 2012 resolved both Landlord application NOL-08747-12 and Tenant application NOT-08732-12. The Landlord acknowledged that her Request to Review an Order applies only to the portion of the order relating to NOT-08732-12.

2. The Landlord, through her Request to Review an Order, claims a serious error with respect to the determination that the Landlord must refund June 2012 rent paid by the Tenant.

3. The Tenant was unable to reside in his basement unit after May 28, 2012 when a flood related sewer back up rendered the apartment uninhabitable. The Tenant’s obligation to pay rent was suspended and the Landlord was not entitled to retain funds forwarded by the Tenant for occupancy of the rental unit in June 2012. I find no serious error in the order or in the proceeding with respect to the member’s determination that June 2012 rent must be returned to the Tenant.

4. The Landlord, through her Request to Review an Order, claimed that the Presiding Member erred in determining the items included on the list of salvageable but missing possessions as set out under paragraph 34 on page 5 of the order.

5. The Tenant’s salvageable possessions were removed from the flood damaged apartment by a third party contractor retained by the Landlord. The Landlord was not present during the removal. The Landlord did not call the contractor to testify about salvageable items removed from the Tenant’s rental unit nor did the Landlord (or her contactor) inventory the items removed from the Tenant’s rental unit. The Presiding Member based her determination of missing salvageable possessions on the un-contradicted testimony of the Tenant. I find no serious error in the order or in the proceeding with respect to this determination.

6. The Landlord, through her Request to Review an Order, claimed that the Presiding Member erred in determining the values assigned to missing salvageable items set out under paragraph 35 on page 5 of the order.

7. The Presiding Member correctly released the Landlord from the requirement to compensate the Tenant for the loss of non-salvageable items damaged by the sewer back up. The Landlord was provided with opportunity to challenge the values assigned to the salvageable items at the initial hearing on July 13, 2012. The Member’s dollar value determinations were based upon the un-contradicted testimony of the Tenant. I find no serious error in the order or in the proceeding with respect to the Member’s determinations about the value of the Tenant’s property loss.

8. On the basis of the submissions made at the review hearing, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

NOL-09228-12 (Re), 2012 CanLII 59926 (ON LTB)

BGNPHC (the 'Landlord') applied for an order to terminate the tenancy and evict MP (the 'Tenant') because he, another occupant of the rental unit or someone he permitted in the residential complex has wilfully caused undue damage to the premises and because he, another occupant of the rental unit or a person the Tenant permitted in the residential complex has seriously impaired the safety of any person. ... Determinations:

1. The Landlord’s application is based upon a notice of termination which makes two claims:

• You, your guest or another occupant of the rental unit has seriously impaired the safety of another person, and this event occurred in the residential complex.

• You, your guest or another occupant of the rental unit has wilfully damaged the rental unit or the residential complex.

2. On July 20, 2012, the Tenant’s toilet overflowed causing approximately $30,000.00 in water damage to the Tenants’ rental unit, to two other nearby rental units and to a portion of the residential complex common area.

3. The damage caused is significantly greater than what is required to give a notice of termination pursuant to clause 63(1)(a) of the Residential Tenancies Act, 2006 (the 'Act').

4. The photographic evidence supports the Landlord’s claim that when the Tenant’s blocked toilet was pulled away from the floor, a chicken bone carcass was found lodged where the base of the toilet connects to the sewer drain pipe. The chicken bones were placed into the toilet by a person in the Tenant’s rental unit. The Tenant’s assertion that the sizable chicken bone carcass eventually worked its way backwards (and against the flow of water) from another rental unit into the base of his toilet is illogical and without merit.

5. While the Tenant’s flushing of a chicken carcase down his toilet may have been demonstrated poor judgement or it may have been negligent misconduct, I find no evidence that the Tenant wilfully intended for his toilet to overflow on July 20, 2012.

6. The Tenant remained in his rental unit during the entire period of time of the July 20, 2012 toilet overflow. The toilet continued to overflow until such time that firemen attended the residential complex in response to an alarm that was triggered by water seeping into the smoke detector located in the rental unit below the Tenant’s apartment. Fire officials then entered the Tenant’s rental unit on an emergency basis to shut off the water valve at the Tenant’s toilet.

7. The Tenant made no effort to shut off the toilet’s water supply valve during the overflow. I note that the Tenant’s rental unit had been similarly water damaged 5 years earlier when his plugged toilet overflowed. It is illogical that the Tenant would be unaware of the water shut valve next to his toilet after the first serious toilet related flood. On the remote chance that the Tenant was totally unaware of the water shut off value, I further find that the Tenant made effort to contact any other person to seek assistance with the addressing water flow dilemma.

8. The Tenant, by intentionally allowing the water to flow unabated, wilfully caused undue damage to the rental unit

9. The Tenant knowingly permitted his 5 pet birds to freely fly inside his rental unit. The Landlord’s photographic evidence depicts the presence of bird feces throughout the rental unit. The Tenant wilfully caused damage to his rental unit by allowing his un-caged birds to deposit an extraordinary amount of bird feces throughout the rental unit.

10. The Landlord is now required to retain the services of a remediation specialist to eliminate the hazardous environment caused by the presence of bird feces. The respiratory health risk, posed by the excessive accumulation of bird feces, has impaired the safety of all persons who enter the rental unit.

11. The attending firemen found and removed a tangled web of live extension cords that traversed the wet floor of the rental unit. The myriad of cords powered numerous electrical devices plugged in by the Tenant. The presence of numerous cords lying on the flooded wet floor posed an electrical hazard. This electrical hazard impaired the safety of all who entered the rental unit on July 20, 2012. The improper use of multiple extension cords also posed a fire hazard which impaired the safety of the other occupants of the residential complex.

12. The tenancy is terminated because the Tenant’s wilful damage and because of the Tenant’s impairment of safety

13. The rental unit will remain uninhabitable until such time that bird feces remediation work and the water damage repair work is completed. As the Tenant is not able to reside in his apartment, I find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act and in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act').

It is ordered that:

1. The tenancy between the Landlord and the Tenant is terminated, as of September 10, 2012. The Tenant must move out of the rental unit on or before September 10, 2012.

...

SWT-27204-11 (Re), 2011 CanLII 82078 (ON LTB)

...

Determinations:

1. The Tenants moved into the rental unit, which is the basement of a house, on September 1, 2009. The Tenants vacated the rental unit on May 15, 2011.

2. The monthly rent was $750.00. The Landlords collected a rent deposit of $1,125.00, which exceeded the maximum of one month’s rent permitted by subsection 106(2) of the Act.

3. On May 14, 2011, during a rain storm, the rental unit flooded to a depth of two feet. The flood rendered the unit uninhabitable and damaged or destroyed many of the Tenants’ belongings.

4. The flood made performance of the tenancy agreement impossible. Under section 19 of the Act, the Frustrated Contracts Act applies and permits the Tenants to recover money paid to the Landlords in pursuance of the tenancy agreement. The Tenants were entitled to the return of their rent deposit of $1,125.00, and the Landlords have refunded this amount in full. The Tenants are also entitled to a refund of 100% of the rent they paid for the period from May 15 to 31, 2011, which the Tenants have reasonably calculated to be $411.29.

5. Subsection 20(1) of the Act provides that a landlord is responsible for providing and maintaining a residential complex, and 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.

6. The eaves trough for the residential complex was not in a good state of repair as required by subsection 20(1) of the Act. A portion of the eaves trough had come down during the winter. The Landlord, J.E., was aware of the problem, which would have been obvious to him by the Spring of 2011 and also when he visited the residential complex two weeks before the flood. The Landlords did not repair the eaves trough before the flood.

7. The question is what impact the disrepair had on the Tenants. While the broken eaves trough did not help matters, I find, on a balance of probabilities, that it was not the cause of the flood or the Tenants’ loss. The flood was caused by municipal sewer drains (catch-basins) overflowing, resulting in excess water running down the lane behind the residential complex and into the rental unit, which was a low point. Many other neighbourhood buildings in the path of the water also flooded the same day. Although the municipality never admitted liability, it did install new catch-basins following complaints from the neighbourhood property owners. An independent insurance adjuster assigned by the Landlords’ insurers also attended the site and concluded the cause of loss was “water damage due to drain overflow”.

8. Since the cause of the Tenants’ loss was something other than the Landlords’ failure to maintain the rental unit, the Tenants’ claim for compensation for property damage is denied.

9. Since a portion of the Tenants’ claim was successful, they are entitled to costs in the amount of the application filing fee.

10. The Tenants also sought an amount for the costs they incurred to perform a title search and a corporate search to determine the location of the landlord and the ownership of the property. Although the Tenants requested this amount as “compensation”, the expenditure was really a cost of preparing for the hearing. Guideline 3 – Costs suggests that preparation costs should not be awarded unless the conduct of the other party in the proceeding was unreasonable. The Landlord, J.E., wound up the corporate Landlord, J.E. Ltd, two weeks after the flood, and also wrote a waiver on the back of the rent deposit refund cheque which, if signed, purported to become a final settlement. These attempts to avoid responsibility made it prudent for the Tenants to perform the searches and were grounds for granting a request for preparation costs. However, since the Tenants did not file a receipt or other proof that they incurred the amount claimed, the request for preparation costs is denied.

It is ordered that:

1. The Landlords shall pay to the Tenants $411.29, which represents a rebate of the rent paid for the period from May 15, 2011 to May 31, 2011.

TST-17616-11 (Re), 2012 CanLII 30218 (ON LTB)

...

The flood

3. The evidence before me is that on June 18, 2011, the Tenant arrived home to find a leak through the kitchen ceiling. The Tenant immediately contacted the Landlord and spoke to the Landlord’s spouse. The Landlord’s evidence is that he was out of town. While the Landlord was locating someone to look into the issue, the Landlord’s wife called the Tenant back to let him know and asked about the current state of the leak. The Tenant reported that the leak was not flowing at that time and she understood that it would acceptable for the Landlord to attend the next morning. The Tenant suggested the Landlord to turn off the water and tell the tenants in the unit above not to flush their toilet. The Tenant spent that night at a friend’s. When he returned the next morning, June 19, 2011, the kitchen ceiling had caved in and the leak had ‘flowed’. The Tenant called the Landlord immediately but nobody attended the unit until noon.

4. The evidence of the Landlord and the contractor (RT) is that they arrived at the unit around 10:00 am on June 19, 2011 and were surprised at the extent of the damage. The ceiling was removed and the problem was identified as several cracked pipes. The pipes were replaced and the area was cleaned and disinfected. The work continued until 9:00pm when the Tenant asked them to leave. The Landlord asked to return the next day to remove the entire ceiling to see what was going on but the Tenant said no. The Landlord returned home, determined he would give the Tenant notice to attend at the unit and contacted his insurance company. The insurance company took over from that point, inspecting on June 24, 2011.

5. In the meantime, the Tenant had contacted Toronto Public Health and an inspector attended the same day. The report was submitted into evidence. The Tenant was advised to throw away food that may have been contaminated by the ‘water/sewage’ and to clean and sanitize other areas that may have been contaminated including tables. A small patch of mould was identified and the inspector concluded it was not a health hazard. The inspector spoke to the Landlord June 17, 2011 who informed her that the unit has been cleaned and disinfected and the insurance company was overseeing the building of a new ceiling. No further action was taken by public health and the file was closed.

6. The Tenant also paid for mould inspection by “Above All Environmental Specialists, Inc.”. A letter submitted into evidence indicates a ‘septic flood’ occurred in the unit above that ran through the Tenant’s ceilings, walls and floor of his kitchen area. The letter recommends ‘all protocol’ be following for a category 3 (sewer back-up) flood in the remediation of the area and suggested all ‘porous’ items that had contact with the water be discarded, including furniture.

T6:

7. The first issue is whether there is a breach. Pursuant to subsection 20(1) of the Residential Tenancies Act, 2006 (the ‘Act’) 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 the health, safety, housing and maintenance standards. The Tenant submits that the flood occurred as a result of the Landlord’s failure to maintain. The Landlord’s position is that it was not aware of the problem until notified by the Tenant on June 18, 2011 and it was not aware of the extent of the issue until it attended the unit the following day. On this point, there was some divergence on the evidence regarding the Tenant’s conversation with the Landlord’s spouse the night before the flood. The parties agree that there were two conversations and that in the second conversation the Tenant told the Landlord that the water was not currently flowing. The Tenant may also have told the Landlord to tell the tenants above not to flush the toilet; however the evidence before me was not sufficient to establish that this would have changed the situation appreciably or that the tenants above had a party as set out in the application. The Tenant did not stay in the unit that evening. In all these circumstances, I find it was not unreasonable for the Landlord to conclude the situation was not urgent based on what the Tenant told them and that it would be appropriate to attend the next day.

8. I am also not satisfied that the Tenant has established that the flood occurred as a result of the Landlord’s failure to maintain. There was a previous leak in 2010 but, according to the evidence of RT, this was due to an entirely different issue (condensation) and is not sufficient to find the Landlord was aware or should have been aware of the issue that resulted in the flood at issue in this application. A landlord who has no knowledge or could not reasonably be expected to have knowledge of a maintenance problem cannot be held financially liable for a latent defect. In this case, this means that the Tenant is not entitled to compensation form the Landlord for damage that occurred as a direct result of the flood itself.

9. I also find that it cannot be said that by virtue of the leak itself, the Landlord seriously interfered with the Tenant’s reasonable enjoyment of the unit.

10. That does not however, conclude this matter. Subsection 20(1) of the Act requires a landlord to maintain a rental unit in a good state of repair. The evidence before me is that the unit was in a state of disrepair for months after the leak was repaired. I find therefore, until the damage was repaired, the unit was not in a good state of repair and the Landlord was in breach of his obligation to maintain.

11. In accordance with the Act and Interpretation Guidelines, if I find that the Landlord responded within a reasonable time and the response was appropriate to affect the repair, no abatement or other remedy should be ordered. The evidence before me is that the restoration work was completed in January 2012 some six months after the flood occurred and after the tenancy was terminated. In the result, I find that the Landlord’s response to the state of disrepair, while appropriate and effective, it was not timely. The Tenant is therefore entitled to a remedy

Remedy:

12. The evidence before is that the Landlord stopped charging the Tenant rent from September 2011, when the extent of the work required the Tenant to vacate the unit. The Landlord has also returned the last month rent deposit for the unit.

13. The Tenant asked that he be reimbursed for hydro and internet bills for September to December that he paid even though he was not living in the unit. The amount claimed is $105.62 for hydro, and $97.28 for internet. The Landlord does not dispute these amounts and I find they are reasonable.

14. The Tenant also for requested reimbursement for meals he ate out from the day of the flood when his stove was unusable and submitted receipts in this regard totalling more than $3,200.00. The Landlord submitted an amount closer to $530.00 was appropriate as many of the receipts submitted for meals were for more than one guest, were undated, were in others cities, were for children late at night, etc. The Landlord also submitted the kitchen was not entirely unusable for the time claimed by the Tenant, although this is not supported by the evidence. However, this does not mean that it is reasonable to expect the Landlord to pay for every meal the Tenant had during the relevant time. The Tenant would still have to feed himself after all. Parties are also required to minimize their damages and given the time it was taking for the unit to be repaired, it would not be unreasonable to expect the Tenant to make some effort to minimize the expense of feeding himself. In the result, I find a lump sum amount of $1,000.00 for the time period is more reasonable.

15. In light of my findings regarding the flood, I find the Tenant is not entitled to the damages claimed for his personal belongings, which he submitted were damaged by the flood itself.

16. The Tenant also claimed $215.00 for a mould assessment he arranged and paid for without informing the Landlord. The assessment was completed several days after the flood and was submitted in support of Tenant’s claim for damages to his personal belongings. In light of my findings about the flood, I find the Tenant is not entitled to the amount claimed.

17. The Tenant also asked for a 100% rent abatement for June, July and August when he claims the unit was uninhabitable. The disrepair dates from June 19, 2011, when the ceiling was removed. The Landlord submits that the unit was ‘liveable’. The unit had been inspected and no immediate health hazard was identified. The Tenant could not use the stove but the fridge was operational. The evidence before me is that the remediation work did not begin in earnest until September 2011, when the Landlord asked to the Tenant to vacate because of the extent of the work. The photographs submitted show a large open hole in the ceiling above the stove in the kitchen. The stove did not work. The Tenant’s evidence is that effectively he did not have a kitchen. The Tenant did inhabit the entire unit, sealing off the kitchen and living in the living room and den until mid September when he was told the bedroom needed to be torn down as well (as the kitchen). A rent abatement is a remedy to compensate in the form of a percentage, what proportion of a rental unit a Tenant is not receiving due to the disrepair. In this case, the evidence before me is that the Tenant paid 100% of the monthly rent but was receiving only 50% of the unit he was paying for. In the result, I find the Tenant is entitled to a 50% rent abatement for 3 months. The monthly rent was $1,200.00. The Tenant is therefore entitled to a rent abatement of $1,800.00.

18. The Tenant also requested compensation for travel to family out of town for access visits with his children. I find this amount is too remote.

19. The Tenant is also entitled to his $45.00 application fee.

T2:

20. The T2 application, citing serious interference with reasonable enjoyment, was essentially a request for an order requiring the Landlord to repair and/or compensate the Tenant for the damage caused by the flood, issues more appropriately addressed in the T6 application. The Tenant’s T2 application is dismissed.

It is ordered that:

1. The Landlord shall pay to the Tenant $1,000.00 which is the reasonable out of pocket expenses the Tenant has incurred.

2. The Landlord shall also pay to the Tenant $202.90, for hydro and internet.

3. The Landlord shall pay to the Tenant a rent abatement of $1,800.00.

4. The Landlord shall also pay to the Tenant $45.00 for the Tenant’s cost of filing the application.

5. The total amount the Landlord owes the Tenant is $3,047.90.

6. The Landlord shall pay the Tenant the full amount owing by April 22, 2012.

7. If the Landlord does not pay the Tenant the full amount owing by April 22, 2012 the Landlord will owe interest. This will be simple interest calculated from April 23, 2012 at 3.00% annually on the outstanding balance.