HomeCanada LawWho's Answerable for Harm to Rental Premises Brought on by Mouse Infestations...

Who’s Answerable for Harm to Rental Premises Brought on by Mouse Infestations – and Why?


By: Jonnette Watson Hamilton

Case Thought of: Hometime Property Companies Ltd v Girumnesh, 2022 ABPC 172 (CanLII)

PDF Model: Who’s Answerable for Harm to Rental Premises Brought on by Mouse Infestations – and Why?

The plaintiff, a company landlord, sued the defendant, their former residential tenant, for nearly $8,000 in damages plus prices, claiming the rental premises have been infested with mice when the tenant vacated. The damages have been for exterminating the mice and restoring the premises to their pre-infestation situation. The tenant, who was served personally with the owner’s civil declare, didn’t file a dispute observe and was famous in default. As a result of they have been famous in default and the declare was heard in Provincial Court docket, the tenant was deemed to have admitted the information that have been alleged within the landlord’s civil declare. However, the owner misplaced; their declare was dismissed in its entirety. Why that occurred is price paying attention to.

Information

The tenant rented the premises beneath a residential tenancy settlement dated November 21, 2019, and occupied the premises for one-and-a-half years (at paras 1, 14). They vacated the premises on a date that’s not specified within the judgment however was someday earlier than the pest management contractor’s written report dated April 12, 2021.

The owner’s civil declare alleged that when the tenant vacated the rental premises the owner discovered proof of a long-standing mouse infestation (at para 5). The allegation was that an infestation was found through the tenant’s tenancy (at para 18).

Along with the information alleged within the civil declare that have been deemed to have been admitted, the owner’s property supervisor and a carpet cleansing contractor testified orally, and a pest management contractor’s written report was entered into proof as properly. That written report said that “the contractor discovered proof of long-term mice infestation together with holes in among the baseboards with droppings and urine contamination in areas of the home … [and] heavy contamination within the ceiling between the basement and front room and kitchen space” (at para 7). Simply how lengthy the “long-term” infestation had been round was not defined within the report (at para 8).

The owner’s property supervisor testified that the owner inspected the rented premises each six months, the property had been inspected thrice, and nothing was found throughout these inspections to recommend a mouse infestation (at para 14). After the tenant vacated the property, the preliminary inspection of the premises by the property supervisor and a brand new tenant didn’t reveal a mouse infestation both. The brand new tenant found the mouse drawback solely whereas transferring in (at para 16). When the property supervisor raised the problem of mice with the tenant after the brand new tenant found the issue, the tenant thought the property supervisor was joking; the tenant was not conscious of any mouse drawback, though her daughter as soon as mentioned she thought she noticed a mouse (at para 15).

These information in regards to the landlord’s inspections elevate some doubts about whether or not the infestation occurred whereas the tenant was in possession of the rental premises. Usually, questions on when and why a mouse infestation occurred are the important thing points in assigning duty for the injury to rental premises, however this was not a standard case.

The owner sued for a complete of $7,979.21 in damages for exterminating the mice and restoring the premises to their pre-infestation situation, plus $200 in prices for the Provincial Court docket submitting charge. The $7,979.21 complete was composed of payments from a pest management contractor, a property restoration specialist, a common contractor, a furnace and duct cleansing contractor, and a carpet cleaner – to which the owner added a ten p.c administration charge – plus a small quantity for baseboard and wall portray and sealing that the owner did itself (at paras 8-13).

Legislation

Who’s answerable for maintaining rental premises free from mouse infestations?

Pursuant to part 16(c) of the Residential Tenancies Act, RSA 2004 c R-17.1 (RTA), a landlord covenants that rental premises “will meet at the least the minimal requirements prescribed for housing premises beneath the Public Well being Act and rules.” Underneath part 4 of the Housing Regulation, Alta Reg 173/1999, an proprietor of premises “shall keep the housing premises in compliance with the Minimal Housing and Well being Requirements, as accepted and printed by the Minister and as amended by the Minister on occasion.”  And beneath The Minimal Housing and Well being Requirements, Ministerial Order 57/2012, part 16(a), the proprietor of the premises should “be certain that the housing premises are freed from insect and rodent infestations…”.

Tenants have associated obligations. Pursuant to sections 21(e) and (f) of the RTA, tenants covenant that they “is not going to do or allow important injury to the premises” and that they’ll “keep the premises and any property rented with it in a fairly clear situation…”.

The query of how these statute-based duties are to be interpreted collectively in order to divide the duty for injury from mouse infestations between the owner and tenant was a significant situation in Provincial Court docket Decide Jerry N. LeGrandeur’s judgment.

Nonetheless, in extra to these substantive covenants, a number of procedural guidelines have been simply as determinative of the result on this case. After noting the tenant in default, the owner utilized to the court docket for judgment towards the tenant on the idea of an affidavit (a written assertion of information that’s sworn beneath oath or affirmed). Such functions are referred to as “desk functions”: the choose decides the matter at their workplace desk primarily based on the written proof that has been filed with the court docket, quite than at a listening to with witnesses and arguments in open court docket. Underneath the Provincial Court docket Civil Process Regulation, Alta Reg 176/2018, when an utility for judgment is made after a defendant has been famous in default, part 6(2) gives {that a} choose can do a lot of issues, together with “(c) direct an evaluation of damages” as a substitute for a desk utility. Decide LeGrandeur directed an evaluation listening to with oral testimony after he concluded that he couldn’t settle for the owner’s affidavit as proof of its declare (at para 23).

The legislation that actually sophisticated issues on this case was the rule {that a} defendant who’s famous in default is taken to confess the allegations within the plaintiff’s declare (at para 25; see additionally Sulef v Parkin (1966), 57 WWR (ns 236), 1966 CanLII 638 (ABCA) at 239). Resulting from this rule, the tenant was deemed to have admitted the next information:

  1. That she rented the … premises from Hometime;
  2. That proof of a long-time mouse infestation together with holes within the baseboard and drywall all through the property with droppings and urine contamination in sure areas was discovered;
  3. There was heavy contamination above the drop ceiling within the basement space in spite of everything exterior entry factors had been sealed and after catching 31 mice, the property was declared freed from mice after 11 days. (at para 27)

Regardless of these deemed admissions, Decide LeGrandeur held that he may dismiss the plaintiff’s motion if he was not glad that the plaintiff had a reason behind motion. A reason behind motion is “a set of information that are mentioned to entitle the claimant to reduction from a court docket” (at para 29, quoting Sherwood Metal Ltd v Odyssey Building Inc, 2014 ABCA 320 at para 24). Part 3(2) of the Provincial Court docket Civil Process Regulation requires that each civil declare in Provincial Court docket should clearly state the particulars of the plaintiff’s declare.

The instances which have dismissed claims as a result of a court docket is just not glad that the plaintiff had a reason behind motion regardless of deemed admissions of the information alleged of their claims have been determined beneath Rule 3.37 of the Alberta Guidelines of Court docket, Alta Reg 124/2010. These are a distinct set of rules that govern civil procedures within the Court docket of Queen’s Bench and the Court docket of Enchantment. Nonetheless, the checklist of a Provincial Court docket choose’s powers beneath the Provincial Court docket Civil Process Regulation when a defendant in a civil declare has been famous in default for failing to defend towards an motion by submitting a dispute observe is sort of similar to the checklist of powers in Rule 3.37 of the Alberta Guidelines of Court docket, which apply when a defendant’s fails to defend towards an motion within the Court docket of Queen’s Bench. Decide LeGrandeur subsequently held that the instances setting out the “no reason behind motion” exception to the rule about deemed admissions beneath the virtually similar Rule 3.37 utilized in Provincial Court docket beneath the Provincial Court docket Civil Process Regulation.

Decide LeGrandeur relied upon Dykes v Goczan, 38 Alta LR (3d) 425, 1996 CanLII 10367 (AB QB), and Spiller v Brown, 1973 ALTASCAD 76 (CanLII). Each of those instances have been cited many instances for the concept that “[a]dmissions can not create a reason behind motion the place none exists” (Sager v Condominium Plan No 9523979, 2015 ABQB 549 (CanLII) at para 9, Spiller v Brown at para 8).

Decide LeGrandeur (at para 26) additionally quoted from TLA Meals Companies Ltd v 1144707 Alberta Ltd, 2011 ABQB 550 (at para 24), the place Justice D. L. Shelley set out 5 ideas to be adopted after a defendant has been famous in default. For the needs of this case, the primary two ideas are related and may be summarized as follows:

  1. When a defendant is famous in default, they’re deemed to have admitted the allegations within the declare; and
  2. Nonetheless, earlier than granting judgment to the plaintiff, a court docket should nonetheless decide whether or not a reason behind motion is confirmed primarily based on the deemed admitted information within the declare and will order {that a} listening to be held.

Software of Legislation to the Information

Underneath part 16(c) of the RTA, a landlord should be sure that their rented premises are freed from bugs and rodents, however the landlord’s legal responsibility is just not limitless. Underneath part 21(e) of the RTA, tenants can not do or allow to be achieved any important damages to the rented premises. How ought to these two statutory provisions be reconciled? Trying on the RTA as a complete, Decide LeGrandeur determined that the owner is answerable for making certain that the premises are maintained in a clear and sanitary situation at the start of and all through a tenancy, in order that if a mouse infestation happens through the tenancy the owner should take motion to return the premises to a clear and sanitary situation, except the infestation was attributable to the tenant’s wilful act or the wilful act of one other individual that the tenant is answerable for (at para 31). For instance, if the tenant initiated the infestation, or didn’t notify the owner that an infestation that was not their fault had occurred, the tenant could possibly be answerable for the ensuing injury to the premises (at para 32). As one other instance, if a landlord does nothing in response to a tenant’s notification of an infestation, then the owner can be liable (at para 32).

This abstract of who’s answerable for injury attributable to one thing like a mouse infestation could possibly be clearer. Decide LeGrandeur wrote {that a} landlord has an “absolute duty to keep up the premises in a clear and sanitary situation” (at para 31, emphasis added). Nonetheless, his feedback that observe make it clear that the owner’s duty is just not absolute and the owner is just not accountable if the infestation was attributable to the tenant or somebody the tenant is answerable for. A second drawback is that he described the tenant’s legal responsibility as being dependant on a “wilful act of the tenant” or the tenant “wilfully permitting one other particular person to trigger the infestation” (at para 31), or the tenant “wilfully not notif[ying]” the owner of an infestation (at para 32). Wilful acts are usually acts achieved intentionally and deliberately, and never accidently. However what about reckless or negligent actions by a tenant? The road between when the owner and the tenant are accountable is unclear.

However, on this case the owner didn’t show that the tenant was liable. Based mostly on the information deemed to be admitted within the landlord’s declare and the proof given on behalf of the owner on the evaluation listening to, Decide LeGrandeur discovered no reason behind motion had been made out towards the tenant (at paras 35-36). The owner’s proof confirmed that when the holes within the baseboard and drywall have been sealed and the mice already within the premises have been caught, the infestation was over (at para 34). The owner was answerable for sealing the holes. The tenant would solely be accountable if the tenant knew of the infestation and didn’t notify the owner (at para 35). Nonetheless, the owner’s proof about discovering no mouse infestation throughout its inspections at the start of the tenant’s tenancy, throughout that tenancy, and simply after that tenancy ended indicated there was no purpose to assume the tenant knew of any infestation. No failure to inform the owner had subsequently been confirmed or admitted.

Conclusion

Ignoring a landlord’s lawsuit is a really dangerous factor for a tenant to do, even when they know themselves to be innocent for the hurt alleged. If the tenant ignored the lawsuit as a result of they’d religion in our authorized system, that religion was justified this time as a result of Decide LeGrandeur insisted on a listening to quite than making do with a desk utility, delved into the case legislation that permits a court docket to dismiss a plaintiff’s declare even when the information alleged of their declare are deemed to be admitted, and paid shut consideration to the information that the owner did show in regards to the infestation. It might be good to assume that each one of our Provincial Court docket judges are as educated in regards to the varied substantive and procedural legal guidelines that have an effect on such a basic side of human expertise as the necessity for shelter and a spot to name dwelling, and as protecting of events’ authorized rights whether or not these rights are claimed or not.

Is it probably that Decide LeGrandeur’s adoption of the superior courts’ rule {that a} court docket should nonetheless decide whether or not a reason behind motion is confirmed even when the information in a civil declare are deemed to be admitted after a defendant fails to defend towards an motion can be adopted by different Provincial Court docket judges? Or by Tenancy Dispute Officers on the Residential Tenancy Dispute Decision Service (RTDRS)?

Within the Provincial Court docket, different judges may additionally depend upon part 3(2) of the Provincial Court docket Civil Process Regulation, which requires that each civil declare should clearly state the particulars of the plaintiff’s declare. If the information set out within the declare that are deemed to be admitted don’t give rise to a reason behind motion, that provision could also be sufficient. The concept that admissions can not create a reason behind motion the place none exists is compelling; individuals fail to defend for a lot of causes and never all of these causes are linked to failing to reside as much as tasks owed to the individuals suing them.

Nonetheless, the overwhelming majority of residential tenancy disputes are heard by the RTDRS. The rule about failures to defend a declare being deemed an admission of the information alleged within the declare seems to don’t have any place in proceedings earlier than this administrative tribunal. All functions to the RTDRS that aren’t refused for one of many causes set out in part 7 of the Residential Tenancy Dispute Decision Service Regulation, Alta Reg 98/2006, are given a listening to date pursuant to part 6(3). Hearings are held whether or not or not the respondent makes a counter-application, recordsdata proof, or attends. In line with part 6(2), events’ functions don’t have to set out a reason behind motion; as a substitute, the main focus is on the treatment events need. If there isn’t a place for a rule about deemed admissions, there isn’t a want for the exception adopted by Decide LeGrandeur on this case.


This submit could also be cited as: Jonnette Watson Hamilton, “Who’s Answerable for Harm to Rental Premises Brought on by Mouse Infestations – and Why?” (September 6, 2022), on-line: ABlawg, http://ablawg.ca/wp-content/uploads/2022/09/ Blog_JWH_Hometime_Services.pdf

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