LTB Order LTB-L-022265-22

2023 ONLTB 26005 (CanLII) Order under Section 69 Residential Tenancies Act, 2006 Citation: G. v A., 2023 ONLTB 26005 Date: 2023-03-22 File Number: LTB-L-022265-22 In the matter of: 1-2, 324 CUMBERLAND A. H. ON L8M2A1 Between: S.G. L. A. A. A. Tenant S.G. (the 'L.') applied for an order to terminate the tenancy A. evict A. A. (the 'Tenant') because: • the Tenant, another occupant of the rental unit or someone the Tenant permitted in the residential complex has wilfully or negligently caused damage to the premises. The L. also claimed compensation for each day the Tenant remained in the unit after the termination date. S.G. (the 'L.') also applied for an order requiring A. A. (the 'Tenant') to pay the L.'s reasonable out-of-pocket costs the L. has incurred or will incur to repair or replace undue damage to property. The damage was caused wilfully or negligently by the Tenant, another occupant of the rental unit or someone the Tenant permitted in the residential complex. This application was heard by videoconference on March 8, 2023. The L. A. the Tenant attended the hearing. Determinations: Order Page 1 of 4  File Number: LTB-L-022265-22 1. The L.’s L2 application is based on an N5 Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding (‘N5’) served on the Tenant on March 24, 2022 pursuant to section 62 of the Residential Tenancies Act, 2006 (the ‘Act’). The L. states that on February 28, 2022 the Tenant parked his motor vehicle on the grass in front of the rental unit which caused damage to the grass. 2023 ONLTB 26005 (CanLII) 2. The L.’s witness, George Babiarz (‘GB’) resides on the third floor of the residential complex which is a detached house. GB testified that from his unit, he has a clear view of the front of the house A. his attention was drawn to the front of house because he had heard tires squealing A. sounds like a car was stuck. GB states that he observed the Tenant’s vehicle rocking back A. forth on the front yard as it appeared the car was stuck in the ground. GB stated that two kids who were one their way home from school helped get the Tenant’s car out of the front yard however the front yard was left with two large ruts in the ground, approximately 4 feet in length. 3. GB submits that he contacted the L. the next day to advise of the damage to the front yard. 4. GB testified that the Tenant’s vehicle was parked on the front yard for about 2-3 weeks A. that while there is parking available within the residential complex, the Tenant parks his vehicle on the front yard. 5. The L. testified that grass was damaged as a result of the Tenant’s vehicle parked on the front yard A. tendered photographs showing the damage. 6. The L. also submitted a quote from a landscaping company that stated it would cost $339.00 to repair the front yard. However, it was later acknowledged that the L. himself repaired the damage as he had grass seed in his possession as a result of having seven rental properties A. that he A. GB pushed the dirt back into the ground A. sprinkled grass seed onto the area. 7. The Tenant’s witness, Fidel Sebastian (‘FS’) resides in one of the two bedrooms in the Tenant’s unit. FS testified that he did park his car on the front yard A. acknowledged that the front yard became damaged. FS testified that he A. the Tenant purchased grass seed A. fixed the yard one week later. The Tenant submits that a landscaping company never attended to repair the damage as the Tenant had already repaired the area. 8. The Tenant testified that he A. FS fixed the grass but also stated that the L. has parked his white mini-van with a trailer on the front yard around the same time. The Tenant states that FS parked on the front yard because the L. had parked his van A. trailer on the driveway blocking any parking A. there was no parking left on the street. 9. Based on the evidence A. submissions before me, A. on a balance of probabilities, I am satisfied that the Tenant, another occupant of the rental unit or a person whom the Tenant permitted in the residential complex wilfully or negligently caused undue damage to the rental unit or residential complex specifically that the Tenant’s occupant had parked his motor vehicle on the front yard which caused damage to the grass. Order Page 2 of 4  File Number: LTB-L-022265-22 Relief from eviction: 10. The Tenant stated that he A. FS repaired the grass while the L. also stated that he A. GB repaired the grass. The evidence before me is that the grass was repaired with little, if any, expense incurred as the dirt was pushed back into the ruts, leveled out A. 2023 ONLTB 26005 (CanLII) grass seed applied. Eviction is a remedy of last resort A. I find that given the circumstances, the issues in this case does not warrant eviction. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), A. find that it would not be unfair to grant relief from eviction subject to the conditions set out in this order pursuant to subsection 83(1)(a) A. 204(1) of the Act. Section 89 – Damage claim: 11. Included in the L.’s application is for compensation in the amount of $339.00 for damage to the front yard. In order for an application for compensation for damages made pursuant to section 89(1) of the Act to success, a L. must establish the following: (a) there was property damage to the rental unit or residential complex; (b) the damage is “undue” meaning that it is not normal wear A. tear A. it is not insignificant; A. (c) the damage was a result of wilful or negligent conduct by the Tenant, occupant or guest. 12. In this context, the word “property” refers to the physical objects such as walls, ceilings, floors, appliances A. fixtures in a residential complex. 13. If all of these factors are met, then the Board can award the L. the reasonable cost of repair, or the replacement if it is not reasonable for the damage to be repaired. 14. The L. testified that the Tenant damaged the front yard of the residential complex A. provided photographs at the hearing which depict the damage to the front yard. 15. With respect to the above noted damage, based on the evidence before me, I find that the undue property damage was as a result of the Tenant’s conduct. However, both the Tenant A. the L. stated they repaired the front yard with little, if any expense. The L. stated that he was already in possession of grass seed A. he did not retain a landscaping company to repair the damage. Given the circumstances, I find that it would not be reasonable to award any costs for the repair as I am not satisfied there was any cost incurred to repair the front yard. Order Page 3 of 4  File Number: LTB-L-022265-22 16. This order contains all of the reasons in this matter A. no further reasons will be issued It is ordered that: 2023 ONLTB 26005 (CanLII) 1. The L.’s eviction of the Tenant is denied as long as the Tenant meets the conditions set out below: (a) the Tenant, another occupant of the rental unit or a person whom the Tenant permitted in the residential complex shall not park a motor vehicle on the front yard. 2. If the Tenant fails to comply with the conditions set out in paragraph 1 of this order, the L. may apply under section 78 of the Residential Tenancies Act, 2006 (the ‘Act') for an order terminating the tenancy A. evicting the Tenant. The L. must make the application within 30 days of a breach of a condition. This application is made to the LTB without notice to the Tenant. 3. The Tenant shall also pay to the L. $186.00 for the cost of filing the application. 4. If the Tenant does not pay the L. the full amount owing on or before March 31, 2023, the Tenant will start to owe interest. This will be simple interest calculated from April 1, 2023 at 5.00% annually on the balance outstanding. March 22, 2023 ____________________________ Date Issued Heather Chapple Member, L. A. Tenant Board 15 Grosvenor Street, Ground Floor, Toronto ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. Order Page 4 of 4