For a tenant it is difficult to prove that his dwelling is unfit for habitation because of mould

Article locked Published on by Me Robert Soucy

Topic(s): Legal

In the context of this legal proceeding concerning a residential lease, it is the applicant who must establish, by a preponderance of evidence, the nature of the breach of contract, injury and causation. That said, and although the application of the ordinary rules requires the demonstration as part of a trial, certain facts supporting the claims of the parties, on the balance of evidence, legislators had hoped that the unsuitability of the housing might have been established and declared by another authority than the one assigned to the Régie du logement.

We must refer to section 1913 of the Civil Code of Québec which governs the abandonment of a dwelling by a tenant who claims that his dwelling is unfit for habitation:
“1913. The lessor may not offer for rent or deliver a dwelling that is unfit for habitation.
A dwelling is unfit for habitation if it is in such a condition as to be a serious danger to the health or safety of its occupants or the public, or if it has been declared so by the court or by a competent authority.”

The City of Montreal has adopted the Regulation respecting the health, maintenance and security of dwellings². Section 25 of this By-law stipulates:
“Chapter IV
Cleanliness
25. No building or dwelling shall be detrimental to the health or safety of the residents or the public by reason of the use made of it or the condition in which it is.
Are prohibited and must be removed:
(...)

10. the presence of moulds, as well as the conditions that favour the proliferation thereof.

Section ll of the Regulations indicates the possible interventions by the competent authority, including the elimination of the unsanitary conditions described in section 25, and this, at the expense of the owner. The Regulations also provide for the evacuation of a non-conforming dwelling.

Section 1 of the Regulations defines the term “competent authority” as the Director of Development and Operations. She delegates inspectors who make the necessary observations and carry out the required interventions. Therefore, on its territory, the City of Montreal, through the inspectors, is the competent authority to declare a dwelling unfit for habitation.

The improper housing

If a dwelling is not declared unsuitable by the City of Montreal, it will be the tenant’s responsibility to demonstrate with supporting evidence that his dwelling is unsuitable and that he may abandon it.

Section 1915 of the Civil Code of Québec stipulates as follows:

1915. A lessee may abandon his dwelling if it becomes unfit for habitation, but he is bound to inform the lessor of the condition of the dwelling before abandoning it or within the following 10 days...

As to the uncleanliness of the housing, the case of Gestion Immobilière Dion (2) states:
“(...) to assess whether the uncleanliness of a rental dwelling poses a serious threat to health, the Court must make such an assessment objectively and ask whether an ordinary person can live objectively in the conditions outlined at the hearing. It is not the subjective apprehensions, nor the tenant’s or the occupants’ psychological state, that must prevail, but the situation or the condition of the premises, included and analyzed objectively at the decision of eviction for quick departure (...).

To establish the serious threat to the health of the occupants, it is necessary to demonstrate the presence of a contaminant, mould, among others, to the housing, and a causal link between it and the tenant’s state of health.

The Hajjar v. Hébert³ decision, does the following analysis:

Nevertheless, to succeed with their requests, the tenants must establish with concrete and predominant evidence the following elements:
1. The problems related to the rented premise or the building in general;
2. The denunciation of their complaints to the landlord;
3. The inaction of the landlord to fulfill his legal obligations;
4. Their departure is justified because the dwelling was unfit for habitation within the meaning of section 1913 of the C.c.Q and if the health of the occupants is at stake, medical evidence is required;
5. The cause-and-effect relationship between the condition of the dwelling and the damages claimed.
(...)

Conclusions

To succeed in his appeal the tenant must demonstrate, on the preponderance of evidence, that the condition of his housing posed a serious threat to his health or safety justifying its abandonment. The causal link with the monetary amounts must also be proved.

The demonstration of the problems related to the housing or the building remains a crucial and necessary step to really appreciate the conditions existing at the time of the departure of the tenant and these conditions will have to be related to the health problems invoked. In the case of contamination it will be necessary to identify the nature of the contaminant and the extent of the contamination.

We will also need to recognize that exposure to contaminants, such as mould, is a daily occurrence because it is inside and outside of housings. Some mould species are very common moreover.

The uncleanliness caused by moulds is evaluated by comparison of the air samples, both qualitatively and quantitatively with the external environment. The proportion of species or the total number of viable units must be higher inside the dwelling than outside. So, we must compare the air samples taken outside and inside the housing. The evidence must demonstrate the concentration and type of mould present in the dwelling. The effect of mould on the health of the occupants of a dwelling depends on the mode and extent of exposure, the nature of the contaminant and it may vary according to the susceptibility of the exposed individuals.

To meet his burden of proof, it is insufficient for the tenant to demonstrate the appearance of physical symptoms following one or more cases of water damage. A strong and conclusive medical report must be produced because the symptoms experienced by the occupants are non-specific and may vary among individuals or even relate to other diseases or causes.

The court cannot base its assessment on subjective considerations.4 The risk to health must be proven in relation to the state of the dwelling to meet the requirements of section 1913 of the Civil Code of Québec. It must not be a subjective fear, even if that fear is based on the existence of an apprehended risk. The law requires proof that the dwelling is not only a threat, but it must be serious too.5

Before leaving his housing, the tenant should ensure that he has in his hands objective evidence that the presence of mould in his housing creates a serious threat to his health or the one of the occupants. He will have to provide the court with solid medical evidence that the symptoms are directly related to the moulds. He will also have to prove a dwelling fault causing mould and that he is not himself responsible for the contamination because of his bad lifestyle. Some renters may increase the relative humidity in their dwelling by neglecting to operate the fans in the bathroom or kitchen, having large aquariums, drying clothes inside their homes and not ventilating their housing enough.

1) Regulation respecting the health, maintenance and security of dwellings.
Administrative code 03-096.
2) Gestion immobilière Dion.JE.91-345 (C.Q.)
3) Hajjar v. Hébert (1999) J.L.316
4) Lamirande v. Gregory 2014 QCRDL14649, para.181
5) Opus citare, paragraph 184.

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