A Victoria tenant will be compensated more than $30,000 due to a prolonged building renovation that included a “loss of quiet enjoyment” due to noise from a jackhammer and exposure to asbestos.
The owner of a 13-storey building at 435 Michigan St. in Victoria, IMH 415 & 435 Michigan Apartments Ltd., plus Devon Properties, had asked for a judicial review of a 2022 B.C. Residential Tenancy Branch decision to award the tenant $30,721.75. The money was awarded by the RTB for “for rental abatement and damages due to the Landlord’s lengthy and extensive renovation of the apartment building in issue.”
The award included rent abatement for a “loss of quiet enjoyment from jackhammering and other noise,” plus $10,000 in aggravated damages for “ongoing health concerns from asbestos exposure during construction.”
The tenant called the noise from the jackhammer, drilling and table-saws “horrendous” as it continued until 8 p.m., six days a week, read the court decision.
The landlord took over the building in 2015 and performed renovations between 2016 and 2017.
“The renovations consisted of repairs and capital work to many of the common areas (corridors, lobby and entrance), unit renovations, security and elevator upgrades, painting (building envelope, balconies, windows and doors), and installation of energy-efficient systems and mechanical equipment,” according to a B.C. Supreme Court decision.
“The Landlord does not challenge the awards for failure to maintain the premises in reasonable condition, loss of balcony use, or for clean-up, totalling approximately $11,500,” said the decision, but challenged the rest of the award.
As for the asbestos exposure, the court decision said the tenant claimed that it was “impossible for tenants and workers to avoid dangerous exposure.”
“(The tenant) described the Building as loaded with contaminated airborne dust while it was wrapped in a construction ‘shroud’ from July to December 2016,” said the court decision. “After a fourth stop work order, on December 14, 2016, the asbestos levels were so high that, on January 24, 2107, the Landlord was forced to evacuate all tenants for six weeks of remediation and cleaning of the Building.”
“I now lay in bed at night considering the possibility that I may … have my quality of life rapidly decline and quickly end …,” the tenant said to the RTB arbitrator, according to the court decision. “There is no doubt my lungs are loaded with asbestos fibres and silica crystals, it’s not possible to have occupied this building in 2016 and avoided exposure, that is now clear…. After exposure to asbestos or silica there is never an “all clear” diagnosis … I will now forever suffer a lingering fear that one day, prematurely, my lung health will rapidly decline as a result of the asbestos, lead and silica I’ve been exposed to.”
The landlord challenged the tenant’s claims and the RTB decision.
“The Landlord submits this award was patently unreasonable because it failed to identify what findings were relied on regarding jackhammering and concrete drilling. It also submits the arbitrator erroneously placed the onus on the Landlord to demonstrate mitigation of the construction noise, whereas the onus to mitigate is actually on (the tenant) who never raised his noise complaints during construction,” said the court decision.
The court disagreed with the landlord.
“In my view, the landlord has not demonstrated anything approaching patent unreasonableness for this award. The award reasonably reflected the arbitrator’s findings about (the tenant’s) loss of quiet enjoyment due to the lengthy, severe construction noise he endured. The findings she made, and conclusions reached therefrom, were all available to her on the evidence,” read the decision.
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