STÉPHANE ARSENAULT Plaintiff – v. –, 2023 NBKB 171

Court File No.: MC-621-2021 2023 NBKB 171 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON BETWEEN: STÉPHANE ARSENAULT Plaintiff – and – IMMEUBLES SYNERGIE REALTY INC. , a corporation doing business as “Rent Moncton Properties” Defendant DECISION BEFORE: Madam Justice Danie Roy AT: Moncton, New Brunswick DATE OF HEARING: April 13 th , 2023 DATE OF DECISION: October 5 th , 2023 APPEARANCES: Stéphane Arsenault, per se Mathieu Léger , for the defendant [TRANSLATION] Roy, J.

INTRODUCTION [ 1 ] Stéphane Arsenault filed a claim in the Small Claims Court seeking damages from Immeubles Synergie Realty Inc., a corporation doing business as “Rent Moncton Properties.” [ 2 ] Mr. Arsenault leased Apartment B, at 663 Gauvin Rd., in Dieppe, from Rent Moncton Properties starting July 27, 2018, for a period of approximately one and a half years. It is a “bachelor” apartment, with one room and a bedroom above. [ 3 ] Mr. Arsenault also rented an additional room in the basement, which flooded twice while he was a tenant: on November 28, 2018, and also in September 2019, during Hurricane Dorian.

[ 4 ] Mr. Arsenault is seeking damages resulting from the two floods. He claims that on November 28, 2018, while heading to the basement, he slipped and fell on the ceramic floor due to an accumulation of water and that he suffered injuries. He also claims that he lost personal property during the September 2019 flood. [ 5 ] Rent Moncton Properties opposes the claim in its entirety. Regarding the September 2019 flood, they state it was caused by sewer backups and excessive amounts of water during Hurricane Dorian.

Additionally, they claim that tenants are responsible for insuring their personal property. [ 6 ] This is an appeal from an adjudicator’s decision. As provided in New Brunswick Regulation 2012-103 under the Small Claims Act (O.C. 2012-383), the appeal is conducted by way of a new hearing. The record on appeal consists of all the pleadings in the small claims action. [ 7 ] Pursuant to subsection 39(6) of the Regulation , as I considered it appropriate to do so, I conducted the appeal in accordance with the relaxed rules of evidence prescribed under

section 11 of the Act and the relaxed procedure set out under

section 34 of the Regulation . [ 8 ] The evidence consists of the testimonies of the plaintiff, Stéphane Arsenault, and Mathieu Léger, who testified on behalf of the defendant. MR. ARSENAULT’S EVIDENCE [ 9 ] On November 28, 2018, Mr. Arsenault, who had just returned from a trip, went down to the basement to fetch some food cans for his meal. He was wearing flip-flops. He claims that he fell because there was water on the ceramic floor and that he stayed in the same spot for an hour and a half. That said, he later returned upstairs.

He says that when he fell, he hurt his head, coccyx, and back. [ 10 ] He notified Rent Moncton Properties of the flooding. He acknowledges that they came to remove the water, but says that no one came to clean up. He says he had to clean it up himself. [ 11 ] Rent Properties Moncton had previously installed an electric sump pump. Mr. Arsenault says that, since there was a three- hour power outage, the pump did not work. He asked the defendant to provide him with a pump equipped with a solar panel, so that it would work despite a power outage, but his request was refused.

He was willing to install it himself. [ 12 ] In September 2019, about a year later, there was a second flood, during Hurricane Dorian. Mr. Arsenault says there were 7 inches of water in the basement. He states he had an 80-inch mattress and a guitar that were floating in the water. He claims he lost everything: his computer, sound system, guitar, humidifier, food, and clothing. He says there was a six-hour power outage. [ 13 ] Mr. Arseneault did not have personal property insurance. He says he asked his insurer, who required the landlord’s signature.

He also claims that Rent Moncton Properties refused to sign, and he believes the reason they refused to sign is because there had been water damage previously. [ 14 ] Mr. Arsenault says that he was left with fungi inside the walls, which he was breathing, as Rent Moncton Properties did not do any repairs following the floods. MR. LÉGER’S EVIDENCE

[ 15 ] Mathieu Léger is the defendant’s comptroller. He takes care of operations and accounting and ensures that everything runs smoothly. He has held this job since 1999. [ 16 ] Mr. Léger states that it is the tenants’ responsibility to insure their personal property. He says that Rent Moncton Properties attach to the lease a document called Additions to Lease Agreements , which states that tenants are responsible for insuring their personal property. He submitted a copy of this document, dated May 2, 2018. He also states that the lease signed by Mr. Arsenault had this document attached to it. [ 17 ] Mr.

Léger adds that he never signed documents so that insurance could be taken on personal property. He adds that no manager of Rent Moncton Properties had to do that either. However, he must sometimes provide some information at the request of insurers. He quickly adds that Rent Moncton Properties manage 700 apartments. [ 18 ] He states that Mr. Arsenault took possession of the apartment after having inspected it. [ 19 ] After the 2019 flood, two or three employees helped Mr. Arseneault. Since Mr. Arsenault had not done so, it was the employees who picked up his clothes. They installed a dehumidifier. Mr.

Léger adds that everything was dry within 24 hours, as indicated by the moisture reader. [ 20 ] He also states that, after the hurricane, it was difficult to collect rent from Mr. Arsenault. ISSUES [ 21 ] The issues in this matter are the following: (

a) Does the defendant owe a duty of care to the plaintiff? (

b) If so, what is the standard of care and has the defendant met this standard? (

c) And, if a breach occurred, was the plaintiff prejudiced and, if so, was there contributory negligence? LAW AND ANALYSIS [ 22 ] Rent Moncton Properties have a duty of care that is prescribed by The Residential Tenancies Act , S.N.B. 1975, c. R-10.2 .

Section 3 of the Act provides that the landlord has the following obligations: 3(1) A landlord (

a) shall deliver the premises to the tenant in a good state of cleanliness and repair and fit for habitation; (

b) shall maintain the premises in a good state of repair and fit for habitation; (b.1) shall deliver to the tenant and maintain in a good state of repair any chattels provided therein by the landlord; (

c) shall comply with all health, safety, housing and building standards and any other legal requirement respecting the premises; and (

d) shall keep all common areas in a clean and safe condition. 3(2) Subsection (1) applies whether any state of uncleanliness, non-repair or unfitness for habitation existed to the knowledge of the tenant before the tenancy agreement was entered into or arose thereafter. [ 23 ] Although Mr. Arsenault did not plead or argue the Act , he essentially says that Rent Moncton Properties failed to comply with

their obligations towards him as required by

section 3 of the Act. He is seeking relief for the following reasons: (

a) The defendant did not warn or notify him of, or report to him, the frequency of floods at the residence; (

b) The defendant failed to comply with its obligations as a landlord to provide housing in a good state to the plaintiff; (

c) The defendant failed to comply with its obligations as a landlord to make all necessary repairs to ensure the premises were in agood state; (

d) The defendant failed to comply with its obligations as a landlord to ensure that there was another source of energy for the sumppump during power outages; (

e) The defendant’s failures put the plaintiff’s health at risk due to the accumulation of mould resulting from the floods. [24]

Section 6 of the Act provides that, where a landlord fails to comply with his obligations under the Act or the terms of thetenancy agreement, the tenant may serve on the landlord a notice stating the complaint. The notice shall be in writing, shall state theaddress of the demised premises to which the notice relates, and shall be dated and signed by the tenant. [25] According to the evidence, Mr. Arsenault did not avail himself of that provision.

He did not give Rent Moncton Properties awritten notice stating a complaint. [26] On the evidence, I am not convinced that Rent Moncton Properties failed to comply with their obligations towardsMr. Arsenault, as he alleges, for the reasons that follow. [27] The law relating to incidents where a plaintiff slips and falls is determined in accordance with the ordinary rules ofnegligence.

Liability for damages arises where the court finds that, at the time the events took place, the defendant owed the plaintiff aduty of care and he failed to comply with that duty of care, thereby causing damage to the plaintiff. (Chamberlain v. Chamberlain,2004 NBQB 444.) [28] Landlords have a common law duty of care where events occur in common areas. In Hickey v. New Brunswick HousingCorporation, 2014 NBCA 36, the Court of Appeal of New Brunswick stated the following in that regard: [19] It is also worth noting that after the release of Frampton v.

Lackman, this Court affirmed the earlier case law holding that a duty ofcare did not arise in circumstances where the stairway was within the “exclusive possession” of the tenant: Ringuette v. Martin(1971), (NB CA), 3 N.B.R. (2d) 598, [1971] N.B.J. No. 38 (C.A.) (QL). The same point was made by this Court inPelletier v. Albert. Therein, the Court held that the landlord will only be liable for personal injury caused by defects pertaining to thosecommon areas over which the landlord retained control (para. 13). This understanding of the law was subsequently confirmed inGaston v.

Fanjoy (1981), (NB CA), 36 N.B.R. (2d) 226, [1981] N.B.J. No. 231 (C.A.) (QL). Quoting again fromDunster v. Hollis, this Court in Fanjoy held: “A lessor who lets rooms to a tenant and provides a common staircase which the tenantmust use must come under an implied obligation to keep the access in a reasonably safe condition, otherwise the tenant cannot enjoy theuse of the rooms which he has contracted to take” (para. 16). [29] Firstly, Mr. Arsenault explains that on November 28, 2018, when he went down to the basement, a room he was renting, heslipped because there was water on a ceramic floor.

He adds that he was wearing flip-flops. [30] He produced no convincing evidence that Rent Moncton Properties was responsible for a fall inside his apartment, which wasunder his control. It is not a common area. [31] Mr. Arsenault alleges that the floods were frequent and that Rent Moncton Properties were aware of this and had installed asump pump to prevent flooding. [32] In fact, Rent Moncton Properties acknowledge that a sump pump was installed in the basement as a preventive measure. Theyadmit that the pump comes on when there is heavy rain or when the snow melts. However, Mr.

Leger says there has been no flooding inthe apartment with the new tenant. Mr. Arsenault did not refute that evidence. I note that he has not occupied the apartment since 2019.

[ 33 ] Mr. Leger also stated that he was not aware of recurring flood problems until Mr. Arsenault became a tenant. What Mr. Arsenault says is that, according to hearsay, tenants before him had 36 inches of water. This is not evidence to which I can give any weight. Mr. Arsenault’s evidence is not convincing. [ 34 ] Mr. Arsenault did not adduce any evidence that the accommodations were not in a good state when he took possession on July 27, 2018, after having inspected them. [ 35 ] Mr. Arsenault says that Rent Moncton Properties did not make the necessary repairs, and that fungi remained in the walls.

Once again, he provided no evidence in support of such claim. He even admits that, after the first flood, Rent Moncton Properties came to remove the water. [ 36 ] Mr. Léger’s evidence is that following the second flood, employees helped Mr. Arsenault. They installed a dehumidifier and everything was dry within 24 hours, which was attested by a moisture reader. Mr. Arsenault did not refute that evidence. [ 37 ] Mr. Arsenault says that Rent Moncton Properties were required to install a pump with a solar panel.

On the evidence before me, I cannot find that this constitutes a failure of the landlord to comply with its obligations. [ 38 ] On November 28, 2018, Mr. Arsenault was absent. He was returning from a trip when he noticed that there was water in the basement. The second flood, a year later, coincided with Hurricane Dorian. [ 39 ] I have no evidence of why the flood occurred in 2018. As for the 2019 flood, both parties agree that it coincides with the arrival of Hurricane Dorian.

But otherwise, I do not have any evidence related to the cause of that second flood. [ 40 ] A sump pump was installed as a preventive measure. While Mr. Arsenault would have liked a pump with a solar panel, would that have made a difference? The evidence does not allow me to answer that question. There is no evidence before me to satisfy me that the pump that was installed was not sufficient. The evidence does not convince me the defendant failed to meet its duty of care. [ 41 ] Mr.

Arsenault claims that Rent Moncton Properties are responsible for the loss of his personal property, to which Rent Moncton Properties say that it is the tenants’ responsibility to insure their personal property. [ 42 ] In response, Mr. Arsenault did not deny this, but he stated that he tried to get insurance, but that he needed to have a form signed by Rent Moncton Properties, which they refused to do. I did not find that evidence credible. Mr. Arsenault did not produce evidence in support of that claim. He was even vague during his testimony.

He provided no details that would allow me to identify the insurer, the date of the insurance application, the date of the insurer’s refusal or a confirmation of his insurer’s refusal to insure his personal property. [ 43 ] Mr. Léger claims that he was never asked to provide his signature so that a tenant could obtain insurance on his or her personal property, and the same goes for the managers. This is a job he has held since 1999 and he manages 700 apartments. In that regard, I prefer Mr. Léger’s evidence. [ 44 ] It was Mr. Arsenault’s responsibility to insure his personal property, which he did not do.

Even after the first flood, he did not purchase insurance. Rent Moncton Properties is not liable for any damages that the 2019 flood may have caused to Mr. Arsenault’s personal property. CONCLUSION [ 45 ] I conclude that Rent Moncton Properties owed Mr. Arsenault a duty of care, as prescribed in

section 3 of The Residential

Tenancies Act . However, I find that Rent Moncton Properties satisfied the statutory requirements and also met the required standard of care. I therefore dismiss the claim. PROVISIONAL DAMAGES [ 46 ] Although I have dismissed the claim, I will nevertheless provisionally assess the damages that have been claimed. [ 47 ] Mr. Arsenault is requesting the following in his claim: (

a) the sum of $15,000 for general damages for pain, suffering, and loss of enjoyment of life; (

b) the sum of $10,000 for the replacement cost of his personal property; and (

c) costs. [ 48 ] Mr. Arsenault claims that on November 28, 2018, when he slipped and fell, he hurt his head, coccyx, and back. He adds that he did nothing about it . [ 49 ] Otherwise, Mr. Arsenault produced no evidence of the injuries that he claims he suffered on November 28, 2018, or of any harm suffered, whether through medical evidence or otherwise. I have no evidence to satisfy me that he suffered injuries. [ 50 ] In the absence of evidence, I am awarding no damages for the pain, suffering, and loss of enjoyment of life, as claimed. [ 51 ] Mr.

Arsenault also seeks the replacement cost of the personal property that he claims to have lost in the September 2019 flood. At trial, he stated that his loss exceeds $20,000. [ 52 ] He says he lost everything: his computer, his sound system, his guitar, his humidifier, some food, and clothes. He claims everything was in the water. He says his guitar and mattress were floating in the water. [ 53 ] He submitted replacement cost estimates from Long & McQuade Musical Instruments Limited, dated September 22, 2021, Leon’s Furniture Limited, undated, and Staples, dated September 22, 2021, totalling $11,002.79.

Long & McQuade (Exhibit D-2) $5,450.90 + $321.99 = $5,772.89 Leon’s (Exhibit D-3) $4,079.05 Staples (Exhibit D-4) $1,150.85 [ 54 ] He submitted photos of the basement into evidence (Exhibit D-1). The photos show water on the floor, but they do not allow for a finding as to the extent of the damages Mr. Arsenault claims. [ 55 ] Mr. Arsenault did not provide any evidence as to the estimates provided either. He said the estimates are for replacement cost.

I have no evidence as to the computer that was damaged, the three pieces of furniture that he wants to replace, or the music equipment that he claims to have lost. [ 56 ] There was a flood during Hurricane Dorian. Mr. Arsenault’s personal property was in a room where there was water. However, not being able to determine the exact amount of the damages and given the circumstances, I find the sum of $1,500 to be reasonable.

DISPOSITION [ 57 ] The claim is dismissed with costs, which I fix at $1,000. DATED at Saint John, New Brunswick, October 5 th , 2023. Justice Danie Roy Court of King’s Bench of New Brunswick