Portrait of moral damages and average rent reduction awarded in the context of a mold problem.

Authors: Beata Elliot & Gillian Smith

Introduction

The following research seeks to quantify the average and median levels of compensation awarded to tenants by the Tribunal administratif du logement (TAL) in matters relating to mould in a dwelling.

If mould is one of many problems being litigated, the TAL awards on average $2061 in moral damages, while the median is $1250.^[1] The average amount awarded in a rent decrease for such cases is 35.2%, while the median is 10.2%. These figures shift slightly when mould is the only issue in the dwelling. The average amount awarded in moral damages in such cases is $1433 and the median is $500, while the average decrease in rent awarded is 12.3% and the median is 10.3%.^[2]

This research also elaborates on several findings related to matters of evidence and procedure on the topic of mould. When filing such a case with the TAL, tenants face a high burden of proof. As will be later discussed, expert evidence appears to be an important factor in convincing the court that mould in a dwelling is indeed toxic, that it is widespread enough to be a severe problem, and that it is caused by the landlord’s negligence and not the tenant’s behaviour. Moreover, evidence from doctors that the mould has caused health issues for the tenant has been found to improve tenants’ chances of success.

In terms of procedure, landlords may only be held accountable if they are informed of the mould through a demand letter and have nevertheless failed to take action. Should a tenant stop paying their rent while waiting for the TAL to process their application, they risk a judgment from the TAL ordering their expulsion for non-payment of rent. If it is impossible for the tenant to remain in their apartment because of mould issues, then they must send their landlord a notice of abandonment of the dwelling either before abandoning it or in the following 10 days.^[3]

Applicable Law

In all matters relating to the salubrity a dwelling, a landlord must both deliver the dwelling in good condition and maintain the dwelling in that condition for the duration of the lease.^[4] Landlords are also required to make “all necessary repairs” to the dwelling,^[5] and a tenant is entitled to damages, specific performance of the landlord’s obligations, or in cases of serious prejudice to the tenant, resiliation of the lease.^[6] Every tenant also has a duty to inform their landlord of mould within a reasonable period of time.^[7]

Methodology

For this assignment, we looked at 91 cases from the TAL and its predecessor, the Régie du logement, from 2014 to 2024. We initially read all cases from that time period on CanLII found under a search for “moisissures.” Then, we read cases on SOQUIJ from that time period that mentioned mould in the index of the case, as a way to prioritize cases where the database considered mould a primary issue. We also looked at cases on SOQUIJ from 2023-2024 where mould was mentioned anywhere in the case, sorting by relevance. Finally, we examined cases through the CAIJ’s archived special report on housing matters, focusing on cases where the TAL awarded a decrease of rent for mould. We looked at all 2023 and 2024 decisions first, and then sorted all cases from 2014-2022 by relevance. This methodology aimed to find the recent decisions first, in order to account for developments in the law and for inflation. This was balanced with drawing on older cases that the database considered highly relevant to the search. We consulted a variety of databases to ensure our data was not skewed.

            From each case, we indicated in the following appendices the amounts awarded in moral damages and the percentage awarded in decrease of rent. We calculated this percentage based on the total amount awarded, time span specified, and monthly rent. We also noted if other issues played into the amounts awarded, and when the case indicated specific amounts awarded for specific issues, we included only the amount awarded for mould. This was necessary because in many of the cases, mould was only one of several issues with the dwelling; tenants often also sought relief for issues like vermin,^[8] faulty locks,^[9] or harassment by the landlord.^[10] We considered issues like ventilation or water damage to be sub-issues of mould, as they were often the causes of the mould.

The attached appendices include all successful cases, but the average calculations only draw on cases where damages were above zero. Given that the question of whether to award damages is separate from the question of how typically it is awarded, these amounts would have been unhelpful in determining an average. We calculated a separate average just considering cases where the only issue was mould, or where the other issues were related to or caused by the mould.^[11]

Analysis

The significant difference between the average and the median amounts awarded in moral damages shows the power of context and evidence to influence damages. Often, larger amounts of moral damages were not awarded for the mould itself, but for harassment or inaction from the landlord.^[12] This is also evident in the lower average and median amounts given to cases where the only legal issues were mould or sub-issues of mould.^[13]

In only 47 of the 91 cases we read did the tenant obtain any damages or reductions in rent for the mould (51.6%). Of those 47, only 28 tenants received moral damages (30.8%), while 39 received reductions in rent (42.9%). In 19 cases, the tenants had to reimburse their landlord for missed rent payments or even damages. In those cases, it was usually one of two factors that made the TAL decide in the landlord’s favour: the lack of expert evidence about the presence of mould, and the lack of evidence that the mould was the landlord’s fault.

Expert Testimony

Every successful case was based on expert testimony concerning the presence of mould, and the impact of this mould on the tenant’s health.^[14] The most powerful form of evidence was city notices and testimony from city inspectors.^[15] Doctors often testified about the health of the tenant, helping the tenant prove that the mould caused health problems.^[16] This expert evidence was taken the most seriously when it concerned the health of young children.^[17] Note that expert reports and testimony were not always enough for a tenant to receive damages. The mould in question had to be quite severe and pose a serious health risk.^[18] It was also helpful for this testimony to clarify the cause of the mould, in order to determine that the tenant was not at fault and that the landlord should be held liable for damages.^[19]

Fault

The tenant’s ability to prove that the mould was the landlord’s fault is critical. It is, however, also a difficult task for the tenant. In most of the cases we read, the TAL scrutinized the tenant’s behaviour carefully. Tenants who engaged in any behaviour that might have increased the humidity of the dwelling were often found to have neglected their responsibility to maintain that dwelling. Habits like leaving windows open,[20] improperly using portable air conditioners,[21] drying laundry indoors[22] or owning a lot of houseplants without using proper methods to collect the water^[23] were used as proof that a tenant was at fault for the mould in their dwelling.  In one case analysed, the court goes so far as to impose a presumption of fault on the tenant who must prove that they were in fact not at fault.^[24]

Legal notice

Other tenants were found to be at fault for mould because they did not act quickly enough to inform their landlord of the issue. Tenants have an obligation to inform their landlord of any serious defect.^[25] They are expected to send a demand letter as soon as they notice the mould, and to send a notice of abandonment if they choose to abandon the dwelling.

There is a high bar for the TAL to consider notice to one’s landlord as legally valid. In Moumbe c. Yzaguirre Silvestre, a tenant sent their landlord a text message stating that they would be abandoning the dwelling due to the presence of mould, and included pictures of the mould in their message. The TAL did not consider this a valid notice of abandonment.^[26] 

The TAL places great importance on tenants informing their landlord of the issue in a way that is legally valid. This is especially concerning given that the fear of causing conflict with one’s landlord, as well as long delays at the TAL, often discourage tenants from taking legal action in the first place.^[27]

Conclusion

            A tenant who wishes to go to the TAL about mould in their apartment increases their chances of success when they immediately send their landlord a demand letter alerting them to the problem and requesting that it be fixed. If their landlord does not resolve the issue, then the tenant can strengthen their case by having their apartment inspected by a professional to determine whether the mould is prevalent and toxic. A tenant who has been experiencing health issues may also benefit from seeking out a healthcare professional to determine if those issues are related to the mould. A tenant who can prove through expert testimony that the mould in their apartment is severe and poses a significant risk to their health also needs to prove to the TAL the cause of the mould.

The median amount awarded to successful tenants for issues of mould specifically is around $500 in moral damages and a decrease in rent of around 10%. The actual amount that the TAL awards may vary considerably depending on whether other issues are present, the level of mould in the apartment, the level of proof the tenant brings, and the conduct of the landlord.

Click here to access Appendices A, B & C !

^[1] See Appendix A.

^[2] See Appendix B.

^[4] S. 1854 and 1910 CCQ.

^[5] S. 1864 CCQ.

^[6] S. 1863 CCQ.

^[7] S. 1866 CCQ.

^[8] See Mofette c. Morel, 2022 QCTAL 34817

^[9] See Charlton c. 9164-1241 Québec inc. (Immeubles Jodrie), 2023 QCTAL 25517

^[10] See Boudrias-Arreal c. Beaudin, 2024 QCTAL 594

^[11] See Appendix B.

^[12] See Hussein c. Ranni, 2023 QCTAL 24919; St-Vil c. Francois, 2023 QCTAL 2764.

^[13] See Appendices A and B.

^[14] See Renaud c. 9146-7415 Québec inc., 2016 QCRDL 32198; Hafiane c. Watson, 2023 QCTAL 16917; Ndong c. 10356-60 Leblanc inc., 2020 QCRDL 1040; Jubinville c. Chartrand, 2022 QCTAL 9322.

^[15] See Idar c. Di Giambattista, 2015 QCRDL 40105; St-Vil, supra note 4.

^[16] See Maclure c. Pastore, 2018 QCRDL 17149; Hebbar c. Gestion Groupe GDR inc., 2024 QCTAL 1556.

^[17] See Cloutier c. Casavant, 2018 QCRDL 21725; Anna c. Karamoko, 2023 QCTAL 38482; Hebbar, supra note 7.

^[18] See Maclure, supra note 7; Bleau Beaulieu c. Gold, 2015 QCRDL 23768; Hafiane, supra note 8; Lavoie c. Gagnon, 2023 QCTAL 26460; Garant c. Nadeau, 2023 QCTAL 35156.

^[19] See Lemay c. Fernie, 2018 QCRDL 20687; St-Germain c. Flowers, 2023 QCTAL 14447; Miljour c. Dionne, 2023 QCTAL 4884; Corriveau-Therrien c. Lafrenière, 2023 QCTAL 34601.

[20] See Kerboub c. Brini, 2023 QCTAL 13964

[21] See Michaud c. Immeuble Macha, 2023 QCTAL 38387.

[22] See Kerboub c. Brini, 2023 QCTAL 13964

^[23] See Charlton c. 9164-1241 Québec inc. (Immeubles Jodrie), 2023 QCTAL 25517.

^[24] See Daigle c. Boisrond, 2023 QCTAL 14445.

^[25] See S. 1866 CCQ.

^[26] See Moumbe c. Yzaguirre Silvestre, 2021 QCTAL 22316.

^[27] See Julie Verrette and Martin Gallié, “La moisissure au tribunal: Étude de cas sur la contribution de garantie d’habitabilité à la lutte contre l’insalubrité” (February 2019) at 23, online (pdf): Coalition of Housing Committees and Tenants Associations of Quebec<www.rclalq.qc.ca/wp-content/uploads/2019/07/La-moisissure-au-tribunal-Julie-Verrette-et-Martin-Galli%C3%A9-CRACH-2019.pdf>.