Order under Section 69

Residential Tenancies Act, 2006

File Number: SWL-03618-17

ACSOPMI (the 'Landlord') applied for an order to terminate the tenancy and evict AN (the 'Tenant') because:

a) the Tenant, another occupant of the rental unit or someone the Tenant permitted in the residential complex has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant; and

b) the Tenant has wilfully or negligently caused undue damage to the premises. The Landlord has also applied for an order requiring the Tenant to compensate the Landlord for the damage.

This application was heard in Waterloo on June 26, 2017. The Landlord’s Legal Representative, DD, attended the hearing. As of 1:18 p.m., the Tenant was not present or represented at the hearing although properly served with notice of this hearing by the Board.

The Landlord called two witnesses: RB and SS

Case Summary:

There is a heavy cockroach infestation in the Tenant’s rental unit, and the Tenant has failed to follow through with repeated requests from the Landlord and pest control to prepare and clean his unit for treatment.

I find that the Tenant has failed to adequately address the sanitation issues in his apartment, such that the Landlord is unable to fully treat the residential complex for cockroaches. I grant the Landlord’s application for termination of the tenancy, and award the Landlord $683.65 to replace the stove that was damaged as a result of the infestation.

Determinations:

1. The Tenant is in possession of the rental unit. The rental unit is located in the basement apartment of a duplex. The main floor apartment of the duplex is occupied by two adult renters and a small child.

2. A Notice to End the Tenancy for Interfering with Others (Form N5) was served on the Tenant on April 24, 2017. The notice alleges that the Tenant wilfully or negligently caused undue damage and has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant. The details section states that the Tenant must pay to replace the stove, and must bring the unit back to its original state of cleanliness. Attached to the Notice is a Schedule which further details the concerns about cleanliness, the removal of the stove, and issues with compliance with pest control treatment. There is also a damages estimate outlining the cost of the replacement stove, the cost to remove the stove, as well as the cost of five pest control treatments. Finally, there is a Pest Management Report attached, which specifically details the infestation, the issue of sanitation in the Tenant’s unit, and the plan to treat the infestation, which includes recommendations for preparing the Tenant’s unit for treatment.

3. Itemized in the list of damages attached N5 is the item “23/01/2017 - PAY FOR ORIGINAL FILING FEE AT TRIBUNAL - $175”. The Landlord indicated that this amount was included in error and relates to a prior application that was filed by the Landlord. While this amount should not have been included in the N5, in the context of over $2,000.00 in requested damages, the additional $175.00 cost would not have prevented the Tenant from voiding the notice by paying the claimed damages, which are set out separately. Therefore, the Form N5 substantially complies with the requirement to provide adequate details in the notice.

Landlord’s Evidence

Property Manager

4. RB is the maintenance coordinator for the residential complex. RB testified that she took over the maintenance for the complex in August 2016, and from her first day she has been dealing with the cockroach infestation in the rental unit.

5. RB testified she has given the Tenant approximately 9 detailed notices of entry for pest control inspections and treatment since August 2016. The Tenant is polite and never refuses entry, but the Tenant has not cooperated with instructions to clean up the grease and food waste on his counter, which prevents the cockroaches from eating the bait set out by the pest control company.

6. RB said she has been in the rental unit several times, most recently in the spring of this year, and stated that the condition of the unit “made her skin crawl”. She said the walls were lined with cockroaches, there were cockroaches on the ceiling and squashed dead cockroaches on the floors. The Tenant keeps a deep fryer on his countertop, and the fryer was covered with grease, as was the side of the refrigerator closest to the deep fryer. RB also noted food and garbage on the floor. RB said she talked to the Tenant a few times about how to clean and prepare his unit so that pest control treatments would be effective. In one of these conversations, the Tenant explained to RB that living with cockroaches does not bother him, as they are a normal part of everyday living in his home country.

7. RB also testified that she has left three notices that specifically state the Tenant is to ensure his dog is not present in the unit when the pest control company is scheduled to spray pesticides, but the Tenant has not complied with these notices, which means only dusting and baiting for cockroaches could be done on those days, and the spray treatment had to be rescheduled. The Landlord provided copies of two entry notices and several pest control invoices as Exhibits 1 – 3.

8. After her attempts to call and text the Tenant were unanswered, R.B. stated that in April 2017, she waited for the Tenant to get home from work and personally handed him a notice of entry for pest control. She explained verbally to the Tenant why the dog could not be there at the time of the treatment due to the spraying of pesticides. The Tenant said he understood but the following day, when the pest control company arrived, the Tenant was not home but his dog was in the rental unit.

9. RB testified that the Tenant is a “nice guy”, but he isn’t taking this situation seriously and needs to vacate the rental unit so that a proper pest control treatment can be completed. RB said she has received more than one tearful telephone call from one of the renters in the upper unit who are very upset that this situation has been going on for almost a year, and are concerned about the small child’s continued exposure to pesticides.

Exterminator

10. SS is a licensed exterminator who has been treating the cockroach infestation in the residential complex. He testified that the original complaint came from the upper unit approximately one year ago. Upon inspection, he determined that the source of the infestation was the Tenant’s unit. SS described the infestation in the Tenant’s unit as “heavy”, and described that on inspection he noted hundreds of live cockroaches in the Tenant’s stove, in the kitchen, in the couch and on the bookshelf. SS described it as “a bad situation”.

11. In the pest control report attached to the N5, the first treatment date is noted as October 4, 2016, and SS testified that the inspection would have occurred shortly before that date. SS testified that after the inspection, he advised the Landlord to dispose of the Tenant’s stove. The degree of infestation in the stove as well as the food source that the grease in the stove provided meant treatment of the stove would be “useless”. SS testified that once he saw the cockroaches crawling behind the glass of the clock in the stove, he knew the stove was too far gone to be treated. The pest control report indicates that the infestation in the Tenant’s unit had been ongoing for over six months prior to the inspection based on the level of activity and the lifecycle stages of the cockroaches in the unit.

12. SS testified that a typical “cockroach cleanout” treatment cycle is three spray applications of pesticide, conducted two weeks apart. In the fall of 2016, SS treated both the upper and lower units in this manner, and testified that one three-treatment cycle is usually enough to eradicate an infestation. The upper unit has not become re-infested, although the occasional live roach is found in the bait traps and roaches are still seen in the unit by the residents because of the ongoing issues in the Tenant’s unit. In contrast, the Tenant’s remained heavily infested, such that a second round of three treatments was required in February 2017. SS stated the Tenant’s failure to properly prepare for treatments by not cleaning his unit and leaving his dog in the unit has slowed down the treatment process.

13. SS testified that on two occasions he spoke to the Tenant and advised him that he needed to clean up the unit, and while the Tenant responded positively, he has failed to follow through. SS testified he was last in the Tenant’s unit two weeks ago, and because the stove was no longer there the sanitation had been slightly improved, but that one kitchen wall, the deep fryer and the surrounding countertop are still covered in grease.

14. SS said at this point, by dusting and baiting, he has been able to keep the cockroaches from re-infesting the upper unit and infesting the shared laundry room (which is in the basement beside the Tenant’s unit), but this is not a permanent solution and eventually those rooms will become infested, as cockroaches become immune to specific chemicals over time.

Analysis:

N5 was not voided

15. The N5 notice was served pursuant to sections 62 and 64 of the Residential Tenancies Act, 2006 (‘the Act’). Section 62 sets out that a landlord can give a notice of termination if the tenant, another occupant of the rental unit or a guest of the tenant wilfully or negligently causes undue damage to the rental unit. Section 64 sets out that a landlord can give a notice of termination if the conduct of the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. Those sections also provide that the notice of termination is voided if the tenant stops the offending conduct during the seven days following the service of the notice.

16. I am satisfied that the Tenant did not void the notice, as to date the Landlord has not received any payment for the damages from the Tenant. I did not hear testimony specifically about the cleanliness of the Tenant’s unit immediately following the seven-day void period, which would have been from April 25 – May 1, 2017; so I cannot determine if the unit was cleaned and became dirty again, or whether it was never cleaned . However, since no payments were received by the Landlord for the damages during the seven day voiding period following the service of the N5 notice, the Landlord was entitled to file the L2 application to evict the Tenant.

Tenant has substantially interfered by not cooperating with pest control

17. I am satisfied, on a balance of probabilities, that the Tenant’s failure to co-operate with pest control treatments has substantially interfered with the Landlord’s lawful right to properly deal with the cockroach infestation in the residential complex. The Landlord has an obligation under section 20 of the Act to ensure that the residential complex is free from infestation, and failure to do so leaves the Landlord at risk of being brought before the Board by other tenants.

18. The Tenant has failed to properly prepare for pest control treatments by not cleaning the grease and garbage in his unit, which provides an ongoing food source for the cockroaches; and by leaving his dog in the unit such that spray applications of pesticide were delayed. This conduct is unreasonable given that the Tenant has been advised in writing and in person by the Landlord and by the exterminator that he must address this issue.

19. The Tenant may be comfortable living with cockroaches, but the hearsay evidence of the maintenance coordinator is that the upper unit residents do not have the same level of comfort. Further, the Tenant has an obligation under section 33 of the Act to maintain the rental unit in a state of “ordinary cleanliness”. The testimony of both the Landlord’s witnesses suggests that the state of the Tenant’s apartment falls well short of this benchmark.

Tenant is responsible for damage to the stove

20. I also find that the Tenant has wilfully or negligently caused undue damage to the stove in the rental unit by failing to report an ongoing cockroach infestation in his unit, such that the unit and the stove were heavily infested by the time the upper unit residents reported the cockroaches to the Landlord. The exterminator testified the rental unit’s stove was not repairable and had to be replaced. The Landlord provided an invoice for $480.00 + HST = $542.40 for a 24-inch stove that was purchased for the upper unit, and the maintenance coordinator advised the same model would be purchased for the Tenant’s unit once the cockroach infestation was eradicated. I will award the Landlord $542.40 for the replacement cost of the stove. .

21. The Landlord did not provide an invoice for $141.25 for the removal of the infested stove. However, I am satisfied the Landlord paid for this service which was necessary to remove the infested stove. The amount requested is reasonable and shall be awarded.

22. The Landlord’s claims for the cost of the pest control treatments are denied. I find that the Board does not have jurisdiction to order the Tenant reimburse the Landlord for the cost of the pest control treatments. Section 89 of the Act only allows a Landlord to seek compensation for undue damage to property, and the Landlord did not prove that the Tenant’s failure to prepare for pest control treatments caused damage to the property, other than to the stove which has already been addressed.

23. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.

24. This order contains all of the reasons for this matter, and no other reasons will issue.

It is ordered that:

1. The tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before July 11, 2017.

2. The Tenant shall pay to the Landlord $683.65, which represents the reasonable costs of replacing the damaged property.

3. The Tenant shall also pay to the Landlord $190.00 for the cost of filing the application.

4. If the Tenant does not pay the Landlord the full amount owing on or before July 11, 2017, the Tenant will start to owe interest. This will be simple interest calculated from July 12, 2017 at 2.00% annually on the balance outstanding.

5. If the unit is not vacated on or before July 11, 2017, then starting July 12, 2017, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.

6. Upon receipt of this order, the Court Enforcement Office (Sheriff), is directed to give vacant possession of the unit to the Landlord on or after July 12, 2017.

June 30, 2017 _______________________

Date Issued Melanie Love

Member, Landlord and Tenant Board

South West-RO

150 Dufferin Avenue, Suite 400, 4th Floor

London ON N6A5N6

If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234.

In accordance with section 81 of the Act, the part of this order relating to the eviction expires on January 12, 2018 if the order has not been filed on or before this date with the Court Enforcement Office (Sheriff) that has territorial jurisdiction where the rental unit is located.