HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sara Silverberg
Applicant
-and-
Nixon Lau and Valeri Moltchanov
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Silverberg v. Lau
APPEARANCES
Sara Silverberg, Applicant
Self-represented and Reena Basser, Paralegal
Nixon Lau, Respondent
Self-represented
Valeri Moltchanov, Respondent
No one appearing
INTRODUCTION
1The applicant, Sara Silverberg, rented an apartment in a recently built condominium high-rise building in the hopes that it would be free from toxins, including mould. Shortly after she moved in, she experienced symptoms which she believed to be associated with mould exposure. She approached the condominium’s property management as well as Nixon Lau, one of the named respondents and the person from whom she had rented the apartment, about having the air tested.
2This initial test revealed nothing, but the applicant continued to believe there was mould in her unit (and, indeed, in the building) and persisted over the course of the next year and a half to have further, more extensive testing done. She stopped paying rent approximately 14 months into the tenancy, and eventually moved out pursuant to an agreement in proceedings before the Landlord and Tenant Board (“LTB”).
3Prior to moving out, the applicant filed this Application alleging discrimination in housing on the basis of disability and receipt of public assistance, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant led no evidence that she was in receipt of public assistance and that ground was not pursued at the hearing.
4Part way through the hearing, the applicant brought a Request for an Order During Proceedings, which was largely addressed in an Interim Decision, 2016 HRTO 123. I notified the parties that, rather than addressing the request that I recuse myself in writing, I would hear submissions at the outset of the continuation of the hearing. At that time, the applicant’s then representative advised that her client would not be pursuing that request. The parties then concluded the evidence. Final submissions were made in writing and filed after the hearing at the request of the parties.
the evidence
5The hearing into this matter took place over three days. During the course of those three days I heard from four witnesses: the applicant, Nixon Lau, Estella Imas, and Angela Pike. Ms. Imas was the property manager at the building and Ms. Pike is a Project Manager with the Mould and Indoor Air Quality Investigations group of Pinchin Environmental Ltd. (“Pinchin”).
6The applicant consulted with Ms. Pike for several months about retaining Pinchin to do mould testing at the unit, although she ultimately chose to go with another testing company, Martech Group Inc. (“Martech”). The individual she dealt with from that company, Marwan Essa, was not called as a witness.
7Ms. Pike was not called as an expert. The applicant did not provide a written report or full summary of Ms. Pike’s testimony, nor did she provide a copy of Ms. Pike’s curriculum vitae, as the Tribunal’s Rules of Procedure would require if she was to be called as an expert. Indeed, the applicant gave very little notice to the Tribunal or respondent that Ms. Pike was being called. To accommodate Ms. Pike’s schedule, her evidence was given over the telephone.
8In addition to the testimony, the parties filed 36 exhibits. Many of the documents were incomplete email chains. It became clear from reading these documents that were submitted that many other documents were not submitted resulting in gaps in the evidence. For example, in an email to Mr. Lau, Mr. Essa (of Martech) refers to having received over 60 emails from the applicant. Only a tiny fraction of these 60 emails were submitted. While some of these may have been redundant or irrelevant, it is likely I am missing important exchanges between the applicant and Mr. Essa.
9The applicant attempted to include many new documents in her final written submissions, which she chose not to submit when giving her evidence. This is improper given that the respondent was not provided with these documents in advance of the hearing and had no opportunity to challenge or otherwise respond to them at the hearing. I have disregarded these additional documents.
Background
10The applicant rented a unit on the 35th floor of a condominium building located at 15 Iceboat Terrace, Toronto. This unit was owned by Valeri Moltchanov, one of the named respondents, and his spouse, whom the applicant unsuccessfully attempted to have added as a respondent partway through the hearing (see Interim Decision, 2016 HRTO 213). By and large, the applicant dealt with Mr. Lau or the property manager. I heard evidence of only one encounter between her and Mr. Moltchanov. Mr. Motchanov chose not to participate in the hearing.
11The applicant’s primary contact was Nixon Lau. Mr. Lau owns a business, Toronto Suite Rentals, which rents units (largely, if not exclusively) from condo owners, furnishes them and then rents them at a higher price to people looking for short-term rentals. Mr. Lau testified that his company typically rents to people for periods of three to four months, but that the leases are on a month-to-month basis.
12The applicant was looking to rent an apartment in late December 2011. She testified that she had owned a condominium, but had discovered mould in it and had moved out sometime in 2007 while she remediated the problem. She testified she sold it rather than moving back into it sometime shortly before the events giving rise to this Application. She described an incomplete list of the places she lived in after moving out of her condominium in an apparent attempt to find a place that did not have mould or other toxins. She testified that at one point she lived in her SUV because it was the only place she did not experience difficulties.
13The parties agree that the applicant asked to rent the one-bedroom unit at Iceboat Terrace for one night to see if she could tolerate it. The applicant was permitted to do this, and decided to stay, thus triggering the month-to-month provision of the short-term lease agreement between the parties. The applicant testified that she had chosen this building because it was new enough that she thought there would be no mould problem, but old enough that there would be no problems from “off-gassing.” The building was completed in mid-2011.
Chronology of Events
14The applicant’s first day in the unit was December 22, 2011. It is not clear from the evidence when she first believed she was having an adverse reaction from living in the unit, but by January 6, 2012, the property manager (Ms. Imas) had arranged to have a mould inspection by Spectrum Building Services Co. (“Spectrum”), a company which professed to have staff “certified in mold remediation and assessment.”
15The report from Spectrum indicated that there was no visible mould, and that the moisture readings from the walls and floors were normal, as was the humidity reading inside the unit. It also indicated that there were no signs of past flooding in the unit. Ms. Imas confirmed in her testimony that she was not aware of any prior history of water damage.
16Mr. Lau was also present when this inspection took place and took pictures of the unit that day. His pictures show that the applicant had already put tape around the door to the hallway, and had used duct-tape to cover the vent between the bedroom and the living room and the “fan-coil” unit with cheesecloth. The report from Spectrum incorrectly noted that the applicant had put tin foil over the vents. It recommended that this be removed to ensure proper air flow.
17The applicant thanked Ms. Imas in an email the day of the inspection and advised her that she did not want to continue testing. Spectrum advised, but did not recommend, that it could do more “intrusive testing” in its report to Ms. Imas.
18At some point thereafter (the applicant’s testimony on this is vague and unreliable), the applicant became dissatisfied and arranged to have further testing done on her unit. She retained the Environmental Services Group with EMC Scientific Inc., which took both indoor and outdoor air samples on July 10, 2012.
19Apparently the applicant also retained another company, which prepared a report, but this report was not entered into evidence. In September 2012, the applicant sent the reports from EMC Scientific Inc. and the second company, identified as EM P & K, to Angela Pike at Pinchin. Ms. Pike wrote about these reports in an email to the applicant: “Neither one has anything alarming in it to me at all.”
20Ms. Pike testified that she would look for indoor air levels that were higher than the outdoor environment as an indication that there was a mould problem. During her testimony, she said that it was significant that the EMC Scientific Inc. report showed that the level of indoor moulds was approximately half that of what was found in the outside environment. That is, the air quality testing did not reveal a problem.
21The applicant wrote back to Ms. Pike in response to her email saying that, “My reactions are horrible,” to which Ms. Pike responded, “Are you sure that it is the mould that you are reacting to?” There were no further emails in this particular chain submitted into evidence.
22In October 2012, Ms. Pike’s emails refer to the need for more intrusive testing, involving cutting into the drywall to determine if there is mould growing on the back of the drywall. Ms. Pike explained in her testimony that if there had been water leakage from plumbing in the cavities behind the walls, this could promote mould growth on the back of the drywall.
23It would appear that the applicant was expressing some concern about her vents in the emails written at this time, because Ms. Pike responded that the applicant could take a “tape lift sample” herself. She indicated that the Pinchin website had instructions on how to do this. The applicant acknowledged in her testimony that she did not follow-through with this suggestion.
24I can also infer from the later emails that the applicant submitted from Marwan Essa that at the same time as she was communicating with Pinchin, she was also reaching out to Martech, another firm that does mould testing.
25Despite the communication with the two testing firms, it would appear that the applicant spoke to neither Mr. Lau nor Ms. Imas about her growing concerns until December 2012. In an email to Mr. Lau dated December 19, 2012, the applicant wrote that she had asked Ms. Imas to get a “professional company” to perform air testing in her unit, and specifically had recommended Pinchin, Ms. Pike’s firm. Mr. Lau wrote back that she would have to pay for the testing herself if she wanted a second opinion.
26On December 25, 2012, the applicant wrote to both Mr. Lau and Ms. Imas about what she believed was the deteriorating air quality in her apartment. She complained to Ms. Imas that there is “black substance” blowing in from the corridor. In January, in an email to Ms. Pike, she wrote: “I have requested an air test, and recommend your company [Pinchin]. I’m really sick in here. …. I want full testing. The garbage chute is across the hall and blows in here. Do you test for bacteria also?” Ms. Pike’s answer was not included in the documents submitted.
27On behalf of the property management company, Ms. Imas advised the applicant that it was sending a work order to a testing company. This company, 2020 Management Limited (“2020”), which is described as a “construction design warranty company,” did a visual inspection on January 24, 2013. In its report, it concluded that it observed no “construction deficiencies” and concluded that there was no reason to do further investigation.
28Ms. Imas testified that the applicant was not present at the unit when 2020 did the inspection. Mr. Lau testified that he and the owner of the unit were present and the owner was upset with the state of the unit. He asked Mr. Lau why the applicant was taping the door and covering the vents, and told Mr. Lau to get the applicant to move.
29Mr. Lau spoke with the applicant later that day. She wrote back to him that day confirming that he had agreed to pay $1,000 towards testing, and that once that was done, she would not require him to do any further testing. She also confirmed that she was waiting to hear back from two firms (Martech and Pinchin) about “air testing and sample taking.” Pinchin quoted $1,000 to do the testing and Martech quoted $950 plus HST for three spore traps, two tape slides (or bulk) and one “bacterial.”
30By late January, Mr. Lau understood that the applicant wished to have the “invasive” (also known as “bulk”) testing done, which would require cutting squares of drywall from the wall to be sent to a lab for analysis. Ms. Pike testified that these squares were typically 6” x 6” (although in an email to Mr. Lau, she wrote 8” x 8”) and that, depending on the situation, more than one square may need to be cut in the testing area. She had previously advised the applicant in October that she would need the permission of the landlord to do that type of testing.
31Mr. Lau prepared and sent a “Mould Test Agreement and Liability Waiver” (the “Agreement”) to the applicant on February 5, 2013. The salient points of this agreement were that he would waive $1,000 in rent in lieu of payment for the testing, and in return, the applicant agreed she would pay for anything above this and would make any repairs as a result of the testing. The Agreement also states that the applicant would vacate the premises on or before March 22, 2014 regardless of the outcome of the testing.
32The applicant wrote back to Mr. Lau on February 8, 2013 that she had “taken out the mar 22 part” and stated that he would also have to “indemnify [her] against any claims the landlord might have against [Lau]. Mr. Lau wrote back that he was prepared to indemnify the applicant, but that the landlord needed the place back and she had to be out by the end of March.
33The parties submitted no further documents on this issue, but it would appear from the testimony that the applicant did not sign the Agreement, and did not agree to the March 22, 2013 departure. For his part, Mr. Lau appears not to have pursued that condition. Ultimately he served the applicant with a Notice of Eviction, but that was for non-payment of rent (as discussed in greater detail below). Despite the applicant’s unwillingness to sign the Agreement, Mr. Lau agreed to pay $1,000.00 toward the cost of testing by way of a rent rebate.
34By early February, the emails verify that the applicant had decided to proceed with Martech rather than Pinchin. She wrote to Marwan Essa on February 3, 2013 for him to make arrangements with Nixon Lau. She states in this email that she “was very sick last night” and “chocking” [sic]. There is a series of emails between the applicant and Mr. Essa which were not submitted, but it appears that the applicant had asked if he would reduce his price because in an email dated February 7, 2013 he responded as follows:
I have now spent a considerable amount of time speaking with you and your landlord via more than 40 emails and phone calls and I am not sure if we are able to provide you [t]he services you are looking for at this point due to our busy schedule.
Please contact a home inspector or a testing firm as we cannot provide you this service.
35It is clear that Mr. Essa relented, because there is a further email from him dated February 20, 2013, reminding the applicant that he was coming out the following day to do the testing and that the payment of $1,073.50, inclusive of HST, was due at the time of testing.
36Everyone is in agreement that Mr. Essa did come to the applicant’s unit on February 21, 2013. The applicant testified that Mr. Lau objected to Mr. Essa doing the “invasive” testing and so she did not pay Mr. Essa, who then did not complete his investigation. Mr. Lau testified that he was only there for 5 minutes and that he did not interfere with the testing. He said that Mr. Essa did not complete his investigation because of the actions of the applicant.
37I accept Mr. Lau’s testimony in this regard. It is supported by an email exchange between him and Mr. Essa. On February 28, 2013, Mr. Essa wrote to him that he cancelled the investigation because the applicant did not pay him, and that there were “other issues as well.” Mr. Lau wrote back to him asking what happened, and Mr. Essa, wrote in an email dated March 2, 2013 that he took samples, but that the applicant did not pay him despite their agreement. He added:
… we have over 60 emails from her up to this point and she wasted much of our time and money without getting anything out of it.
She kept interfering with the investigation, simply, we cannot understand what she wants.
38By this point, the applicant had stopped paying rent to Mr. Lau. At the hearing, she testified that she was of the view that she was entitled to withhold the $1,000 because it was a “gift.” However, she ceased paying rent altogether and by the time of her departure on September 15, 2013, she was $14,000 (equivalent to 7 months in rent) in arrears. The parties reached an agreement in the LTB process that the applicant would vacate the premises on the September 15, 2013 date in exchange for which the applicant would owe the respondents nothing. At the hearing, the applicant testified that she saw the $14,000 in free rent as an “accommodation” of her disability.
39At some point in 2013, the applicant called Toronto Public Health and connected with Raymond Ramdaya. Mr. Lau testified that the applicant had threatened to do this during the LTB eviction proceedings. He further testified that he spoke to Mr. Ramdaya and provided him with the previous reports conducted at the behest of the property management company. He testified that Mr. Ramdaya said that he saw nothing of concern in these reports, and that he would be ordering an air test only, to be paid for by the applicant. Mr. Lau followed up with an email, dated June 11, 2013, in which he clarified this. The applicant responded that day, saying “This is not the proper test.” The parties submitted no further documents and Mr. Ramdaya was not asked to testify.
40On her final day in the apartment (September 15, 2013), the applicant appears to have arranged to have air testing done by Inch by Inch inspections. She submitted Certificates of Mold Analysis done by Pro-Lab for Inch by Inch, but called no one from either company to explain the results. They appear to show that the sample taken in there was mould present in the “HVAC unit,” but that the “spore trap analysis” taken in various parts of the apartment showed “no fungi detected.”
Medical Evidence
41The applicant did not call any medical evidence, but submitted a medical report, dated January 8, 2008, from the Environmental Health Clinic at Women’s College Hospital. This describes that the applicant was finding moulds in her then apartment in Toronto’s Beach area, and that she had been finding ways of coping. It appears to be entirely based on the applicant’s self-report and provides no additional insight into any problem the applicant might have.
42The applicant submitted a further medical report, dated April 11, 2013, from Dr. Peter Vadas, Director of Allergy Clinical Immunology at St. Michael’s Hospital, who conducted an allergy consult. Dr. Vadas describes the applicant’s report of her problem with the condominium she owned (and sold) prior to the events giving rise to the Application. She complained of nosebleeds, bleeding from her external ear canals, rashes, itchy welts, “swollen red hands, headache, mental fog and disabling fatigue.” She advised Dr. Vadas that she had “organized an air quality assessment, which revealed the presence of “Cladosporium, Penicillum and Aspergillus. Examination of the wall cavities showed the presence of Stachybotrys, particularly behind the shower areas” in the condominium unit she had previously owned.
43Dr. Vadas conducted testing and found evidence of “sensitization to Aspergillus,” which his report suggests is an airborne mould. He noted that Stachybotrys was not an airborne mold and exposure to it would not show up on skin or serologic testing. He noted:
I have told Fern [the applicant’s legal first name] that Stachybotrys is not an allergenic molds [sic], but instead is a toxigenic mold. It releases an airborne mycotoxin which can cause damage to the respiratory mucosal epithellium. It has been associated with other constitutional symptoms too.
44The applicant did not call Dr. Vadas to explain his report (or answer questions in cross-examination), nor did she call anyone from the Environmental Health Clinic at Women’s College Hospital.
45The applicant wrote to her legal representative from the LTB proceeding on July 30, 2013 to say that she had been “vomiting from the mold” and that it is “unbearable.” She further reported to her representative on August 14, 2013 that she had just returned from the hospital and was “on antibiotics for the 12th time since” she had moved to the unit.
46During her testimony, the applicant wished to show me a redacted copy of her OHIP record of billings from this period. However, she was not prepared to share a copy of this document with the respondent, Mr. Lau, and had not disclosed it to him or the other respondent in advance of the hearing. I advised her I would not accept it for reasons of fairness.
47The applicant did submit records from medical visits during this period, showing that she had two urinary tract infections and cough and congestion. These are apparently not indicative of the number of times she sought medical help during this period given her estimate to her legal representative that she had been on antibiotics 12 times during this period. As noted above, the applicant included other medical documents with her final submissions, but I have not considered them given the improper manner in which they were put before the Tribunal.
Decision and analysis
48Although not articulated in this manner, the applicant’s argument might be summarized as follows: She has a sensitivity to moulds, which triggers a number of physical reactions that are debilitating. Accordingly, this mould sensitivity is a disability under the Code. The apartment she rented at 15 Iceboat Terrace had mould. Because of her disability, the presence of this mould had an adverse impact on her. The respondents had a duty to accommodate the group of persons of which she was a member (i.e., people with mould sensitivities) to the point of undue hardship by both testing for mould and remediating any mould found.
49Assuming, without finding, that the applicant does have a mould sensitivity resulting in debilitating illnesses (the evidence on this point was scant), she has failed to establish that the condominium at 15 Iceboat Terrace had a mould problem. The tests that were done, for which there are reports, showed that there was no observable mould, no unusual conditions (such as inappropriate humidity readings) or signs of water damage and that the levels of airborne mould in the apartment itself were lower than the levels found outside the building.
50With respect to the latter findings, the applicant attempted to argue that mould was detected inside her apartment at unacceptably high readings. However, the person she described as the expert (a characterization I am unable to accept for reasons set out above) said in an email that these levels were not problematic. She reiterated this in her testimony, saying that the fact that they were approximately half the levels of the outdoor levels was an indication of good air quality. The applicant responded to this by suggesting that the samples taken outside of 15 Iceboat Terrace were from an area one would expect high concentrations of mould. She, however, is not an expert in this area, and provided no expert testimony to back up her observations.
51In any event, the applicant suggested that the airborne tests would give only a partial picture – that to properly rule out a mould problem, one would have to do an “invasive test.” That is, the tester would have to cut out small squares of in situ drywall and sample the back of it to look for moulds from unseen water damage.
52It is not clear to me that such testing was warranted on the evidence. The applicant testified that she had numerous medical problems – problems which she had had in other apartments in which she had detected mould – and, therefore, I could infer the presence of mould. Ignoring for the moment the decided lack of supporting medical evidence of problems (discussed above), the applicant called no expert testimony linking these medical problems to mould exposure.
53I attempted to point out this missing link to the applicant during the course of the hearing, and she responded by saying that I simply needed to go on the “internet” and research this issue. I advised her that that would not be fair to the respondent Mr. Lau. This suggestion also disregards the fact that the applicant bears the burden of proving her case on a balance of probabilities. It is not an acceptable answer to a question about the lack of reliable evidence, that a proposition can be proved by referring to sources outside the hearing room.
54What little “evidence” I had on the topic does not support the applicant. The doctor the applicant consulted with on April 11, 2013, noted in his report that Stachybotrys, unlike the airborne moulds, was a “toxigenic mold.” He noted that it “can cause damage to the respiratory mucosal epithelium” and “has been associated with other constitutional symptoms too.” Setting aside the fact that I do not know, nor did I get any evidence on how damage to the respiratory mucosal epithelium might manifest itself – or what these other constitutional symptoms might be – there was nothing in that report indicating that the applicant was suffering from these conditions.
55The applicant testified that her rashes and hand swelling were related to Stachybotrys exposure, but these appear to be the very symptoms not associated with Stachybotrys if I am reading Dr. Vadas’ report correctly. I appreciate that I may have misapprehended this report (and, indeed, the other medical/technical reports), but this simply highlights the very problem with not calling expert testimony to explain disputed technical or scientific phenomenon.
56The applicant indicated (and this was, to some extent supported by Ms. Pike’s testimony) that Stachybotrys would likely only be detected by doing the invasive testing because it could proliferate as a result of unseen water damage. However, the applicant also suggested that there was visible water damage in the lower level parking garage and laundry rooms, and visible toxic pathogens in the hallway outside her apartment. Indeed, the reason she put tape around her door (and maintained it even when asked to take it down) is that she believed toxins were blowing into her apartment. She submitted pictures of what she said were flecks of black on her wall by her door that she said had blown in from the hallway. If this was true, the logical extension is that airborne tests inside her apartment ought to have revealed unhealthy levels of toxins; yet even those tests commissioned by the applicant did not yield such results.
57Finally, even if there was sufficient reason to conduct invasive testing of her apartment, the evidence does not support the applicant’s proposition that the respondents prevented this from taking place. There is no evidence that the applicant approached either respondent for his permission to do invasive testing until sometime in 2013. Mr. Lau agreed to do this as a result of a meeting between him and the applicant on January 24, 2013. Indeed, he agreed to pay $1,000.00 towards the cost of the testing (i.e., almost the entire cost). There is no documentary evidence suggesting that he balked at doing this prior to that day.
58It is true that he attempted to compel the applicant’s departure two months later as a condition of approving and financially supporting the testing, but even when the applicant would not agree to this condition, he did not renege on his support. The applicant argued that Mr. Lau’s actions on February 21, 2013 prevented Marwan Essa (Martech) from conducting the invasive testing, but I find Mr. Lau’s testimony on this point more reliable. Namely, I find that he was only around for five minutes at the outset and that he said or did nothing to prevent Mr. Essa from conducting the tests. The email exchange between him and Mr. Essa supports Mr. Lau’s position that it was the applicant who interfered with the testing and who refused to pay Martech at the conclusion of it.
59The applicant then compounded the problem by withholding this money from her February-March rent, even though it was clear that she was only getting the rebate in order to pay for testing. Indeed, she not only withheld that $1,000.00, but then withheld a further $13,000.00 in rent payments. The applicant appears to have justified this conduct in her own mind, but, seen from the perspective of an outsider to the situation, there is no rational connection. Indeed, her continued residency in what she asserted was a contaminated environment it is not consistent with the actions of someone who genuinely desired to live in a mould-free environment.
60In the final analysis, the evidence does not support the applicant’s assertion that the conditions in her apartment triggered her disability, which the respondents had some obligation to “accommodate”; even if it had, the evidence establishes that she failed to cooperate with the accommodation process. Accordingly, on a balance of probabilities, the applicant has failed to establish that the respondents discriminated against her on the basis of a disability.
order
61For the reasons set out above, the Application is dismissed.
62Dated at Toronto, this 21st day of October, 2016.
“Signed By”
Naomi Overend
Vice-chair