Barta v. Rudolph, 2018 ONSC 6208

CITATION: Barta v. Rudolph, 2018 ONSC 6208

DIVISIONAL COURT FILE NO.: 527/17 DATE: 20181017

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

JULIA BARTA

Joel Etienne and Naila Waheed, for the Plaintiff (Respondent)

Plaintiff (Respondent)

– and –

J. JAY RUDOLPH

Rajbir Bhogal, for the Defendant (Appellant)

Defendant (Appellant)

AND BETWEEN:

J. JAY RUDOLPH

Rajbir Bhogal, for the Plaintiff (Appellant)

Plaintiff (Appellant)

– and –

JULIA BARTA and RE/MAX HALLMARK BATORI GROUP INC.

Joel Etienne and Naila Waheed, for the Defendant, Julia Barta (Respondent)

Defendants (Julia Barta, Respondent)

HEARD at Toronto: October 17, 2018

CONWAY J. (Orally)

[1] Jay Rudolph appeals from the judgment of Judge M.D. Godfrey of the Small Claims Court dated August 9, 2017 requiring Mr. Rudolph to pay the plaintiff Julia Barta $20,687.50, plus costs, for breach of a lease contract.

Facts

[2] Mr. Rudolph signed a one year lease agreement on August 30, 2015 with Ms. Barta to lease her condominium at 123 Eglinton Avenue East. The lease commencement date was November 1, 2015 but was pushed back to November 20, 2015 for Ms. Barta to replace the floors at Mr. Rudolph’s request.

[3] Prior to signing the lease agreement, Mr. Rudolph visited the property two or three times. He had an air quality test done, which showed one spore of Stachybotrys chartarum (black mold). The individual who conducted the test told Mr. Rudolph that one spore could have been dragged in from the outside and was of no significance.

[4] Mr. Rudolph’s daughter, who was going to live with him occasionally at the unit, contracted Lyme Disease in 2012. In July 2015, it was discovered that she also suffered from mold toxicity when mold was found in Mr. Rudolph’s ex-wife’s home. Mr. Rudolph told Ms. Barta that his daughter suffered from mold toxicity. However, he told Ms. Barta that he had conducted an air quality test and it had come back clean. He proceeded to sign the lease agreement.

[5] Mr. Rudolph was entitled to visit the property three times before the commencement date. After his second visit on October 12, 2015, he provided Ms. Barta with a deficiency list of 13 items. According to Ms. Barta’s mold expert witness at trial (Mr. Aiken of Pinchin Ltd.), three of those items referred to water damage and could have been related to mold growth. Mr. Aiken testified that once Ms. Barta addressed those deficiencies, no further assessments were required to be done. He testified that if they do a visual assessment of the space and there was no visible mold and the air samples were clean, they would deem that they did not find any mold growth.

[6] In October 2015, Mr. Rudolph discovered that his daughter was also genetically susceptible to mold. According to her treating mold specialist, Dr. Patel from California, she could not go into the unit without an “ERMI” (Environmental Relative Moldiness Index Report) test being conducted. On November 4, 2015, Mr. Rudolph gathered dust samples from the unit and submitted them to a laboratory in the United States. The ERMI test results showed 12 spores of black mold, beyond the acceptable level of five or less. His daughter’s doctor advised that she could not live in or visit the unit. Mr. Aiken testified that his firm and its competitors in Ontario do not use the ERMI test and it is very clear that it is not to be used in place of a mold assessment as “it’s really just a tool…you’re really looking at history versus actually determining if there’s mold growth in the space.”

[7] On November 12, 2015, Mr. Rudolph sent a letter to Ms. Barta advising that the ERMI test result disclosed that there was toxic black mold in the unit, the unit was not fit for habitation, the lease had been frustrated, and the plaintiff should mitigate her loss. Mr. Rudolph admitted at trial that he did not give Ms. Barta an opportunity to remediate the mold and that he and his daughter would not have lived in the unit even if it had been remediated.

[8] Ms. Barta testified that following receipt of his letter, she called at least two or three private mold companies and was advised that they had not heard of the ERMI test and that there was nothing for them to do if there was no visible indication of mold. After initially telling Mr. Rudolph that he should sublet the unit, which he refused to do given his termination of the lease, she tried to relist the unit for rent but was unable to re-rent it. She listed the unit for sale on March 29, 2016 and closed the sale on April 29, 2016. She then started an action against Mr. Rudolph for lost rent, less certain credits due to him.

[9] The trial judge heard testimony from the parties and from Mr. Aiken, the plaintiff’s expert witness on mold, over a 1-1/2 day trial. Mr. Rudolph also tendered two letters from Dr. Patel and two letters from Dr. Cook, his daughter’s treating physicians. The trial judge found that the lease agreement had not been frustrated as a result of the ERMI test results. He found that Mr. Rudolph’s ex-wife and daughter had known about the ERMI test in the summer of 2015 and Mr. Rudolph could have done the test before he entered into the lease. Mr. Rudolph does not challenge that finding.

[10] The trial judge then considered whether the unit was fit for habitation, as required by s. 20(1) of the Residential Tenancies Act, 2006 S.O. 2006, c. 17 (the “Act”), which reads:

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.

[11] He considered the evidence of the physicians and found that it did not establish that there was actually black mold in the unit, only the potential for mold due to the presence of the mold spores. He accepted the testimony of Mr. Aiken that the ERMI test was not an assessment of mold growth and was used only for prescreening of possible mold. In any event, the trial judge found that even if mold existed, Mr. Aiken’s evidence was that all mold can be remediated. He found that Ms. Barta would have taken steps to remediate the mold if she had been given the chance.

[12] The trial judge determined that Ms. Barta had tried to mitigate her damages. He awarded her $20,687.50 for the lost rent, plus costs and interest. He ordered that the $7500 rent deposit made by Mr. Rudolph could be returned to Ms. Barta, thereby reducing the judgment by that amount.

Standard of Review

[13] The standard of review for a judicial decision is correctness on questions of law. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, the standard is palpable and overriding error, unless there is an extricable legal error in principle: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

Analysis

[14] Mr. Rudolph submits that the trial judge erred in law in not setting out, considering and applying the test for “fit for habitation” in s. 20(1) of the Act. Mr. Rudolph also submits that the trial judge made numerous factual errors.

[15] The leading case interpreting the term “fit for habitation” in the Act is Summers v. Salford Corp., [1943] 1 All E.R. 68, where the court held that if the state of disrepair is such that by ordinary use, damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, the house is considered not reasonably fit for habitation. However, a landlord will only be found in breach of his duty if he fails to take all reasonable measures to address and remedy an issue when the situation is brought to his attention: see Stephos Management Services v. McGregor,1993 CarswellOnt 3655 (Gen. Div.). In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, the Court of Appeal made it clear that the court’s analysis must be a contextual one and the court must consider the entirety of the factual situation before it in determining whether a breach of the landlord’s obligation exists. The court rejected the submission that a landlord is automatically in breach of its obligation under s. 20 of the Act as soon as an interruption in service occurs.

[16] In this case, while the trial judge did not explicitly articulate the “fit for habitation” test, it is clear from his reasons that he understood the legal test. He engaged in a contextual analysis of whether Ms. Barta breached her obligation under the Act. In particular, he looked at what and when she knew about Mr. Rudolph’s daughter’s condition and what steps she took to address the problem when it was brought to her attention. The trial judge specifically looked at the time the lease was signed, when Mr. Rudolph brought to Ms. Barta’s attention the fact that his daughter had mold toxicity issues but told her he had conducted a satisfactory air quality test and signed the lease. When Mr. Rudolph delivered his list of deficiencies on October 12th, Ms. Barta completed the repairs and, according to Mr. Aiken, no further investigations were needed in the absence of any visible mold. Once Mr. Rudolph conducted the ERMI test on November 4th, he determined that the unit was unsatisfactory. However, he unilaterally and unequivocally terminated the lease. He did not afford Ms. Barta the chance to investigate the problem, to confirm the results of his ERMI test, to do a follow up mold assessment, to remediate the problem or to address the issue in any way. I see no legal error in the trial judge’s application of the “fit for habitation” test under the circumstances.

[17] I am further not persuaded that the trial judge made any palpable and overriding errors of fact that tainted his analysis. Mr. Rudolph points to several sentences in the reasons where the trial judge stated that the ERMI test did not create the likelihood of mold and that it would not have been necessary for Ms. Barta to take steps to remediate without the likelihood of mold being established. Mr. Rudolph submits that this contradicts the evidence of Mr. Aiken that the next step after finding 12 mold spores would have been to conduct a mold assessment test.

[18] These sentences must be seen in context. As noted above, the trial judge was well aware of Ms. Barta’s efforts to address any issues with the unit. There was evidence before him that even if mold existed in the unit, all mold can be remediated (even to the extent required for immunocompromised individuals) and that it could have been done very quickly in this case. The trial judge was satisfied that Ms. Barta would have remediated the mold given the efforts she had made to accommodate Mr. Rudolph before he moved into the unit. However, Mr. Rudolph never gave her the chance. He took matters into his own hands and made it clear that he was terminating the lease, calling for a return of his deposit, and not moving in under any circumstances. In my view, the issue of what next steps could or should have been taken by Ms. Barta in light of the ERMI test results must be seen in the context of Mr. Rudolph’s unilateral and final termination of the landlord-tenant relationship on November 12. I see no reason to interfere with the trial judge’s findings in that context.

[19] The appeal is dismissed.

[20] I have endorsed the Appeal Book and Compendium of the Appellant (Defendant) as follows: “For oral reasons delivered in court today, the appeal is dismissed. Costs of the appeal payable by Mr. Rudolph to Ms. Barta on a partial indemnity basis in the amount of $8,500, all inclusive.”

___________________________ CONWAY J.

Date of Reasons for Judgment: October 17, 2018

Date of Release: October 18, 2018

CITATION: Barta v. Rudolph, 2018 ONSC 6208

DIVISIONAL COURT FILE NO.: 527/17 DATE: 20181017

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

JULIA BARTA Plaintiff (Respondent)

– and –

J. JAY RUDOLPH Defendant (Appellant)

AND BETWEEN:

J. JAY RUDOLPH Plaintiff (Appellant)

– and –

JULIA BARTA and RE/MAX HALLMARK BATORI GROUP INC. Defendant (Julia Barta, Respondent)

ORAL REASONS FOR JUDGMENT

CONWAY J.

Date of Reasons for Judgment: October 17, 2018

Date of Release: October 18, 2018