Tenant faces eviction after he withheld rent for flooded apartment with asbestos tiles

In a 16 month span, Richard Babuik's southwest Calgary apartment flooded four times.

Once in June 2018, because of heavy rain and a downspout issue. More than a year later in July it flooded again — and this time, Boardwalk, the company that manages his rental property, was unable to find the source of the water. 

"The first flood, you know, things happen, I understand that,"  Babuik said. "The second flood I was concerned."

What happened next between Babuik and Boardwalk are a series of events that are slated to end in an eviction. It's a complex web of tenants' rights juxtaposed with the rights of the landlord.

Babuik said after the second flood, he found himself unemployed and began to struggle at the end of each month. Everything was going into his rent but he still couldn't pay on time. That's when the third flood hit.

Andrew Christopher, community director with Boardwalk, said after the third flood the company did an excavation next to Babuik's suite, and put sealant on a wall they believed was letting water into the building.

I'm not paying you to live in this disaster.- Richard Babuik, renter

"We believe in most cases residents do not have to move because we're flooded, depending on the severity of the flood," Christopher said. 

And so, for floods one, two and three, Babuik wasn't moved. Boardwalk said the floods had only affected part of his living room, and part of his bedroom.

But after his experience with how long it takes to rip up the flooring, drywall, and lay new flooring, not to mention concerns with mould, he had had enough.

"I'm like, I'm not paying you to live in this disaster," he said.

In Alberta, landlords are responsible for keeping rental premises reasonably safe and in good repair at all times. 

If renters find themselves living in a suite or home that doesn't meet those standards, there's a process.

Tenants are allowed to apply to the Residential Tenancy Dispute Resolution Service, or go to court to recover damages, have rent reduced, end the tenancy or be compensated for the cost of fixing the issue. 

But withholding rent isn't a tool tenants can use.

Babuik said he knew withholding rent is not allowed but felt the situation he was living with wasn't within the spirit of the law.

His decision to withhold money meant Boardwalk could apply to the Residential Tenancy Dispute Resolution Service for a "substantial breach" of his lease. On Nov. 12, the RTDRS ordered:

• The tenant (Babuik) must vacate the rental unit on Nov. 26.

• The landlord (Boardwalk) is entitled to $39.25 per day from Dec. 1, until they repossess the suite, and the sum of unpaid rent until Nov. 30 — $3,579.

Meanwhile, Babuik was in the middle of a fourth flood — one he reported on Oct. 18 — after he noticed water was seeping up through his flooring.

Asbestos in the tiles

The flooring had to be ripped up, but he had a new concern — asbestos in the tiling.

He had engaged with AHS during previous floods and an inspector stopped by on Oct. 25. The crumbling tiles tested positive.

"The Public Health Inspector was told by the landlord that it would allow the tenant to move to another suite in the building," wrote AHS in a statement. "This was a satisfactory solution for AHS Environmental Public Health until the required work was safely completed."

That never happened. 

Babuik said he was given the option to move but would have had to sign a waiver absolving Boardwalk of any responsibility should something break during the move. This is standard procedure, according to Christopher.

But it made Babuik uncomfortable, so he was given time to consider it.

Offer to move taken off the table

Once the RTDRS made its ruling, the offer was off the table.

"Unfortunately, there is a situation between Richard and Boardwalk where their legal action was taken on our end, through the RTDRS," Christopher said. "It was confirmed that should not proceed with transferring Richard to a different suite."

During all of this, Babuik didn't seek his own legal help or apply to the RTDRS. He says when he looked into the process he was told it could take months for a resolution.

"If you're going to wait for three months to get action on something like this, you know that's, that's kind of too late," Babuik said. 

In a statement, AHS wrote it wasn't aware Babuik continued to live in the unit. When they found out, the Public Health Inspector stepped in.

"The landlord subsequently indicated it would move the tenant to a hotel," AHS wrote. " This action was a direct result of the direction the PHI provided to protect this tenant during the remainder of his tenancy."

Christopher said the company also gave him a $25-a-day meal allowance, along with an offer to waive rent between Oct. 18 and Nov. 26.

Gabriel Chen is a senior counsel at Calgary Legal Guidance, a group in the city providing free legal help for low to moderate income people.

"When a tenant has an issue with whether a landlord has been making repairs sufficiently, keeping a premises up to health standards, then they always do have the ability to ask for a reduction in rent," Chen said. "It's called an abatement and it is up a judge or the Residential Tenancy Dispute Resolution Service to decide if there's going to be a rent break and how much it's going to be for." 

Tenants need to know their rights, says lawyer

But, he says, the tenant always has to ask for it and it's a lengthy process without immediate relief. 

"The residential tenancy dispute resolution service is something that was created several years ago, because the government wanted to create something that was a little more user-friendly … than the court system. And I would say that overall it is but at the same time there are lots of people that still find it difficult to use," he said.

"It is tougher for people that are generally that are lower income. Not as sophisticated and probably are dealing with other things like poverty, health issues, and other kinds of stresses.

"It's not something that the RTDRS does for you. They are there to just hear the dispute. And they try to do it fairly, but they don't have lawyers or duty counsel there to explain people's rights to them."

Babuik has since sought legal advice, and was told not to sign the agreement to accept the waived rent.

"I have spoken with Richard, on multiple occasions," said Christopher. "They were good conversations and I hope that he truly knows that we want to make sure that this issue is resolved.

"It is unfortunate, the direction that this has taken, us not being able to transfer him to another suite and have this issue rectified to continue calling Boardwalk home."

Boardwalk will be remediating the suite after Nov. 26 under the watchful eye of Alberta Occupational Health and Safety and AHS Environmental Health and Safety while Babuik looks for a new home.

Babuik says throughout the process he thought Boardwalk would just do the right thing.

"You just expect that the landlord is going to provide, you know, what you're paying for," Babuik said.