A Victoria tenant will be compensated more than $30,000 due to a prolonged building renovation that included a sa国际传媒渓oss of quiet enjoymentsa国际传媒� 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 sa国际传媒渇or rental abatement and damages due to the Landlordsa国际传媒檚 lengthy and extensive renovation of the apartment building in issue.sa国际传媒�
The award included rent abatement for a sa国际传媒渓oss of quiet enjoyment from jackhammering and other noise,sa国际传媒� plus $10,000 in aggravated damages for sa国际传媒渙ngoing health concerns from asbestos exposure during construction.sa国际传媒�
The tenant called the noise from the jackhammer, drilling and table-saws sa国际传媒渉orrendoussa国际传媒� 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.
sa国际传媒淭he 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,sa国际传媒� according to a B.C. Supreme Court decision.
sa国际传媒淭he 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,sa国际传媒� 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 sa国际传媒渋mpossible for tenants and workers to avoid dangerous exposure.sa国际传媒�
sa国际传媒�(The tenant) described the Building as loaded with contaminated airborne dust while it was wrapped in a construction sa国际传媒榮hroudsa国际传媒� from July to December 2016,sa国际传媒� said the court decision. sa国际传媒淎fter 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.sa国际传媒�
sa国际传媒淚 now lay in bed at night considering the possibility that I may sa国际传媒� have my quality of life rapidly decline and quickly end sa国际传媒�,sa国际传媒� the tenant said to the RTB arbitrator, according to the court decision. sa国际传媒淭here is no doubt my lungs are loaded with asbestos fibres and silica crystals, itsa国际传媒檚 not possible to have occupied this building in 2016 and avoided exposure, that is now clearsa国际传媒�. After exposure to asbestos or silica there is never an sa国际传媒渁ll clearsa国际传媒� diagnosis sa国际传媒� 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 Isa国际传媒檝e been exposed to.sa国际传媒�
The landlord challenged the tenantsa国际传媒檚 claims and the RTB decision.
sa国际传媒淭he 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,sa国际传媒� said the court decision.
The court disagreed with the landlord.
sa国际传媒淚n my view, the landlord has not demonstrated anything approaching patent unreasonableness for this award. The award reasonably reflected the arbitratorsa国际传媒檚 findings about (the tenantsa国际传媒檚) 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,sa国际传媒� read the decision.
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