Docket A-015-96
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Anna Fisher (the Lessee) against Order No. LD96-173 of the Director of Residential Rental Property dated September 19, 1996.
Order LR96-12BEFORE THE COMMISSION
on Thursday, the 14th day of November, 1996.
Linda Webber, Chair
Clayton Bulpitt, Commissioner
Carl Riggs, Commissioner
Order
Participants
1. Appellant:Anna Fisher (the Lessee)
2. Respondent:
Vincent Michellod (the Lessor)
Reasons for Order
1. Background
On January 14 or 15 of 1995 the Appellant Anna Fisher (Lessee) began leasing part of a house from the Respondent Vincent Michellod (Lessor) at 210 Hillsboro Street, Charlottetown, P.E.I. Events that occurred later in that year and early in 1996 resulted in an application being made by the Lessee on April 25, 1996 for "return of rent paid while house was unsafe to live in". The hearings both before the Director and on appeal indicated that the Lessee's specific request was for a return of the rent paid for the month of February, 1996.
By a decision dated September 19, 1996 the Lessee was awarded a partial payment of the rent in question, $134.46. From this decision she appealed by Notice of Appeal dated October 2, 1996.
The appeal was heard on October 29, 1996. Present were the Appellant Anna Fisher, the Respondent Vincent Michellod and the Respondent's wife.
2. Decision
The Lessee began having health problems late in 1995. She was falling asleep all the time, having trouble concentrating and doing "strange things". As a result, in December of that year she went to her doctor for a physical. Numerous tests were done, including blood work, and the results showed blood abnormalities. Her doctor wasn't quite sure what was causing this.
Then in January, after the Lessee complained about the smoke in the apartment she lived in, an oil repairman found that the flue pipe had rusted off and was lying on the floor in the basement. As well, he found no filter on the furnace. The heating system is a forced hot air system. The Lessee reports that the repairman stated that it was no wonder she was sick; it was a wonder she was not dead. She asked the repairman to clean out the furnace and put a filter on. She gave him a green garbage bag to put the dirt in and he filled it a quarter full with debris from the furnace.
The Lessee then telephoned her doctor and asked if this could be the cause of her problems. His response was that it certainly was likely—her symptoms were indicative of carbon monoxide poisoning.
The Lessee had asked the repairman what she should do and he told her to ventilate the apartment. She understood this to mean opening the doors and windows for a while. She did this and things seemed improved for a while. However, over the next several weeks there were various attempts made by the Lessor to seal the house in which the apartment was located. First he sent someone over with heavy duty plastic to seal over all the windows on the outside. The Lessee complained about this, believing it to be a barrier against exit in case of a fire. She complained to the fire inspector and the Lessor was told to remove the heavy plastic and replace it with lightweight plastic indoors. This was done. The Lessee's health problems continued.
Another blood test in February showed further indications of carbon monoxide poisoning and the doctor's office nurse telephoned the Lessee and told her to "get out" of the house right away. She left on February 14th. On February 21st she returned for an inspection of the premises with Leonard Gallant, Environmental Health Officer, and the Lessor. There was a very strong smell of oil at that time. Mr. Gallant said the gases and odor were so great the house could not be occupied full time without it being thoroughly ventilated. This meant bringing in fans and leaving the doors open. There was a dispute between the Lessor and Lessee about this because the Lessor wanted the Lessee to leave the doors open all night and just not worry about having her belongings stolen and the Lessee wouldn't do that. Because of problems with the windows, and the fact they had no screens, leaving them open would also provide easy access to the apartment. As a result it would take several days to adequately ventilate the premises.
On February 23rd Mr. Gallant returned to the rental unit and still found an odour of gas. He said further ventilation was required – the unit might be fit for habitation by the first of the next week. (The following Monday was February 26th.)
On February 1, 1996 the Lessee had given her notice of intention to terminate her lease of the premises at the end of the month. Her doctor had advised that she move from the premises because the fumes were obviously causing her problems. Her exposure to the gases had apparently resulted in her developing an increased sensitivity to these gases and he felt it was best she leave that place. Later in the month, as reported above, he advised her to move out immediately because her carbon monoxide readings were too high.
The Lessee's doctor, Dr. George Carruthers, stated in a letter to the Commission dated October 22, 1996:
...
"She presented to the office on December 11, 1995 with vague symptoms of memory loss, confusion, headaches and dizziness. A complete physical exam was done at that time with the cause being undetermined.
On January 17, 1996 Ms. Fisher came to the office with the information that the exhaust from her furnace was being vented into the basement as well as there being poor ventilation. This clinically was the problem and explained her bizarre behavior that had never been present before. I advised my patient that I felt she had carbon monoxide poisoning and that the problems at her place of residence needed to be corrected before she would get better and she should consider moving out.
On February 12, 1996 Ms. Fisher returned to the office with continued symptoms albeit less prominent with the information that some changes had been made at the home but she continued to reside there. I strongly suggested that she move out due to the continuation of the poisoning. A carboxyhemoglobin was done at the hospital with a level of 6.6.%
There are a number of points to consider:
1) There is no doubt in my mind that Ms. Fisher was suffering from environmental poisoning during her stay at her former place of residence. This may have been carbon monoxide poisoning, oil fumes or a combination of both. When the problems were addressed and she left the home her symptoms quickly resolved.
2)...It is true that it is difficult, if not impossible to say how much the minimal amount of cigarette smoking Ms. Fisher did would contribute to her carbon monoxide reading. I would suggest very little. The diagnosis is based on clinical evaluation, not necessarily lab values.
The comment on the report that I made "not a dangerous level" was to help alleviate the anxiety Ms. Fisher had regarding her health. It was physically harming her and she was showing symptoms of continued exposure but it was not going to be immediately life threatening. The other comment on the report was "need to get out of house!". The meaning of this is clear."
The Lessor has argued that the carbon monoxide readings could just as easily be the result of the smoking done by the Lessee. The Lessee's doctor in his letter has refuted this explanation, saying that the clinical behavior of the Lessor indicates that carbon monoxide was the problem.
The Lessor further argues that he never received any previous complaints about oil or gas smells from the Lessee and as soon as she complained he sent someone from the oil company over. This is refuted by the Lessee who describes conversations with the Lessor about wanting to open the window in her son's room because he felt he needed it for sleeping, as well as her desire to open the window in the bathroom since it had no other ventilation. The Lessor always forbade the opening of any windows and watched the premises to ensure that windows weren't open. He felt that open windows were only going to lose heat. Since this was an old building with lots of leakage, he didn't believe any air was needed.
The Lessor admitted that he had no idea when the furnace was last cleaned or why it did not have a filter.
The Commission concludes, from a review of all the evidence filed, including doctor's reports and oil company invoices, as well as the oral evidence at the hearing, that the Lessor failed to maintain the furnace in the Lessee's apartment by having it regularly checked and cleaned. The flue pipe did not rust and fall off overnight. The lack of a filter is unacceptable. The Lessor is fortunate there do not appear to be any long-term health problems for the Lessee and that the Lessee did not seek a return of rent paid for a considerably longer period of time.
The Lessee was clearly ill in December when she visited her doctor. The flue pipe was completely detached on January 9th when the oil repairman checked the furnace so it is reasonable to conclude that it was leaking fumes for a considerable period before that. In February when Mr. Gallant attended at the premises he clearly found the premises unfit for habitation. The fact that there were no carbon monoxide readings on that date of February 21st is not evidence that this had not been a problem prior to that date, and by that time the sensitivity had been created in the Lessee. The Lessee states that the explanation for the better condition of the basement is the fact that the window in the basement had been left open. The Lessor denies that the window was open. The Commission does not believe this to be a crucial factor to the decision. The evidence indicates the premises were uninhabitable. Section 6.1 of the Act states
6.1 Condition of premises
The lessor shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any enactment respecting standards of health, safety or housing notwithstanding any state of non-repair that may have existed at the time the agreement was entered into.
Clearly this provision was breached by the Lessor for at least the month requested by the Lessee. An order shall issue allowing the appeal and awarding the Lessee the return of the $650.00 rent paid for the month of February, 1996.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Anna Fisher (the Lessee) against Order No. LD96-173 of the Director of Residential Rental Property dated September 19, 1996.Order
WHEREAS Anna Fisher filed an appeal against a decision of the Director of Residential Rental Property dated September 19, 1996;AND WHEREAS the Commission heard the appeal in Charlottetown on October 29, 1996;
NOW THEREFORE, for the reasons given in the annexed Reasons for Order;
IT IS ORDERED THAT
1. The appeal is allowed;
2. The Lessor shall pay to the Lessee the sum of $650.00 on or before November 25, 1996.
DATED
at Charlottetown, Prince Edward Island, this 14th day of November, 1996.BY THE COMMISSION:
Linda Webber, Chair
Clayton Bulpitt, Commissioner
Carl Riggs, Commissioner
NOTICE
Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:
26.(2) A lessor or lessee may, within fifteen days of the decision of the Commission, appeal to the court on a question of law only.
(3) The rules of court governing appeals apply to an appeal under subsection (2).
(4) Where the Commission has confirmed, reversed or varied an order of the Director and no appeal has been taken within the time specified in subsection (2), the lessor or lessee may file the order in the court.
(5) Where an order is filed pursuant to subsection (4), it may be enforced as if it were an order of the court.