LTB Order LTB-L-023444-23

2023 ONLTB 74161 (CanLII) Order under Section 69 Residential Tenancies Act, 2006 Citation: C. v R., 2023 ONLTB 74161 Date: 2023-11-14 File Number: LTB-L-023444-23 In the matter of: Lower Level, 2873 14TH LINE GILFORD ON L0L1R0 Between: F.C.A.Q.A. L. A. C. R. A. T. A. Tenants Hunsdale F.C.A.Q.A. (the 'L.') applied for an order to terminate the tenancy A. evict C. R. A. T. A. Hunsdale (the 'Tenants') because the Tenants did not pay the rent that the Tenants owe. This application was originally heard by videoconference on August 3, 2023. The Landlord’s legal representative Luigi Innamorato attended the hearing. Both Tenants A. their legal representative Michaela Rosolak attended the hearing. The matter was adjourned because there was not enough time to the section 82 issues the Tenants intended to raise. An interim order was issued on August 22, 2023 which directed the Tenants to pay the ongoing monthly rent until the matter is brought back before the Board A. I am seized of the matter. A continuance of the hearing was held by videoconference on October 4, 2023.The Landlord F. C. A. the Landlord’s legal representative Luigi Innamorato attended the hearing. The Tenant C. R. A. the Tenants’ legal representative Michaela Rosolak attended the hearing. Determinations: 1. The residential complex is a rural house which is divided into an upper unit A. a lower unit. Order Page 1 of 8  File Number: LTB-L-023444-23 2. The L. served the Tenants with a valid Notice to End Tenancy Early for Nonpayment of Rent (N4 Notice). The Tenants did not void the notice by paying the amount of rent arrears owing by the termination date in the N4 Notice or before the date the application was filed. 2023 ONLTB 74161 (CanLII) 3. The Tenants were in possession of the rental unit on the date the application was filed. Date the rental unit was vacated 4. The Tenants vacated the rental unit on September 30, 2023. Rent arrears are calculated up to the date the Tenants vacated the unit. 5. The Tenant C. R. (‘Ms. R.’) states that the Tenants physically vacated the rental unit on August 1, 2023. Ms. R. confirms sending a text message to the Landlord F. C. (‘Ms. C.’) on August 28, 2023 which was read into the record by the Landlord at the hearing. The text message notes that the Tenants request that the last month’s rent deposit be applied to the rent for September 2023. The text message further notes that the Tenants requested that the Landlord ask the upper-level tenants to turn on the switch for the basement lights for the “umpteenth time” so the Tenants could start packing. Ms. R. further states that the Tenants provided the Landlord with an N9 Tenant’s Notice to end the Tenancy (N9 Notice) on August 31, 2023 which notes a termination date of September 30, 2023. The N9 Notice was produced for the hearing A. is signed by Ms. R. A. dated August 31, 2023. 6. The Landlord submits that the Tenants provided the L. access to the rental unit on September 30, 2023 A. returned the keys to the rental unit on that date which was undisputed by Ms. R.. 7. I find the Tenants vacated the rental unit on September 30, 2023. I find this is supported by the N9 Notice A. the undisputed testimony that the Tenants provided vacant possession of the rental unit to the Landlord on September 30, 2023. 8. The lawful rent is $2,400.00. It was due on the 1st day of each month. 9. The Tenants have not made any payments since the application was filed. 10. The rent arrears owing to September 30, 2023 are $21,600.00. 11. The L. incurred costs of $186.00 for filing the application A. is entitled to reimbursement of those costs. 12. The L. collected a rent deposit of $2,400.00 from the Tenants A. this deposit is still being held by the L.. The rent deposit is applied to the arrears of rent because the tenancy terminated. Order Page 2 of 8  File Number: LTB-L-023444-23 13. Interest on the rent deposit, in the amount of $69.04 is owing to the Tenants for the period from August 7, 2022 to September 30, 2023. Section 82 issues 2023 ONLTB 74161 (CanLII) 14. The Tenants raised maintenance issues pursuant to s. 82 of the Residential Tenancies Act, 2006 (the ‘Act’) A. request a rent abatement of 50% - 75% for the duration of their tenancy. Ms. R. states that the tenancy commenced August 8, 2022 which was undisputed by the Landlord. 15. As explained below, the Tenants have proven on a balance of probabilities that the L. failed to meet the L. obligations under subsection 20(1) of the Act for not repairing the electrical issue relating to operation of the lights in two rooms inside the rental unit A. for the L. not rectifying the issue relating to the storage of garbage on the deck above the Tenants rental unit. I find these issues commenced August 20, 2022 A. were not repaired for the duration of the time the Tenants remained in the rental unit. Therefore, the Tenants are entitled to a rent abatement for these items. 16. I accept Ms. R.’s testimony that the Tenants physically left the rental unit until August 1, 2023. I accept that their belongings remained until September 30, 2023 which is the undisputed date that the keys were returned to the Landlord. The Tenants are therefore entitled to a 20% rent abatement or $480.00 per month for the period of August 20, 2022 – July 31, 2023. 17. The rent abatement calculation is as follows: • From August 20, 2022 – August 31, 2022 at $15.48 daily per diem (20% of monthly rent is $480.00/31 days) x 11 days for August 2022 = $170.28 • From September 1, 2022 - July 31, 2023, 11 months x $480.00 = $5,280.00 • Total rent abatement is $5,450.28 ($170.28 + $5,280.00) 18. The Tenants are not entitled to a rent abatement for the issues relating to the exterior driveway light or the fireplace. I do not find the Tenants have established the L. have failed to meet their obligations under s. 20(1) of the Act. Further reasons are provided below. Issue#1 – power disconnection to the lights in lower-level rental unit 19. Ms. R. states that there is an electrical switch located in the upper tenants’ unit A. when this switch is turned off, the lights are inoperable for the third bedroom A. the living room inside the Tenants rental unit. Ms. Rays states this issue was first reported to the Landlord on August 20, 2022 A. it occurred about once per week for the duration of the tenancy. Ms. Rays states Ms. C. advised the Tenants that it was not an electrical issue A. that her husband would place a cap on the electrical switch to prevent the upper-level Order Page 3 of 8  File Number: LTB-L-023444-23 tenants from turning off the switch affecting the lights in the Tenants rental unit. Ms. R. relies on text messages she sent to the Landlord which were undated, advising that this issue was ongoing throughout the tenancy. Text message correspondence between Ms. R. A. Ms. Chaudry from September 2022 notes that the light switch in the upstairs unit 2023 ONLTB 74161 (CanLII) needs to be on at all times for the lights in the lower unit to work. The last text message sent to the Landlord advising of this issue was on August 28, 2023. 20. Ms. C. states that the L. live 15 minutes away from the residential complex. She states that black duct tape was placed over the electrical switch in the upper tenants’ unit in late August 2022. Ms. C. states that the Tenants advised the L. that this issue was still occurring in September 2022/October 2022. Ms. C. states that she asked the upper-level tenants to look at the switch A. that they advised her that their laundry basket may have inadvertently turned off the switch. Ms. C. states that since she did not hear from the Tenants again regarding this issue until August 2023, the L. assumed there was no longer an issue. 21. The L. rely on the Board’s decision CEL-020221-21 Joaquim Alexandre A. Marva D. Jones, 2022 CanLII 82028 (ONLTB) which notes there is no formula to determine the amount for a rent abatement A. the circumstances of each case need to be determined when considering the amount to be awarded. The decision further notes factors to be considered when determining the amount of a rent abatement which include the following. 1) The length A. severity of the issue A. its effect on the tenant, 2) whether the landlord rectified the issue(s) in a reasonable timeframe A. if the response was appropriate, 3) whether the tenant bears any responsibility, A. 4) if the tenant interfered with the landlord’s efforts to rectify the issue(s). These factors have been considered in my calculation for determining the amount for the rent abatement. 22. I find that the L. failed to meet their obligations under s. 20(1) of the Act relating to the electrical issue causing the lights in two rooms in the rental unit to be inoperable when a switch was turned off in the unit located above the Tenants rental unit. I accept Ms. R.’s evidence A. I find this issue was occurring since August 20, 2022 A. this issue had not been repaired by the time the Tenants physically left the rental unit on August 1, 2023. Ms. C. does not dispute the Tenants first advised the L. of this issue on August 20, 2022. Ms. C. testified that she received further text messages from the Tenants in September/October 2022 advising this issue had not been repaired following an attempt by the L. to repair the issue. There was no further evidence produced by the L. regarding any attempts to repair the issue following the Tenants advising them the issue was still occurring in September 2022, despite the L. living 15 minutes away from the residential complex. I do not find it is reasonable that the Tenants had to notify the L. when the lights in their rental unit were inoperable A. for one of the L. to then contact the upper-level tenants to request that they turn on the switch inside their unit. This seems onerous for the Tenants A. unreasonable that the L. did not take any further steps to properly repair this issue. Order Page 4 of 8  File Number: LTB-L-023444-23 23. I find the August 28, 2023 text message sent to the Landlord in which the Tenants request the Landlord to ask the upper-level tenants to turn on the electrical switch so the Tenants could pack their belongings in the rental unit supports this issue was not repaired as of August 28, 2023. I have awarded the rent abatement up until the date of July 31, 2023 as 2023 ONLTB 74161 (CanLII) Ms. R. testified that the Tenants physically moved out of the rental unit on August 1, 2023. Ms. R. states that the issue with the lights not working in two of the rooms in the rental unit occurred once per week. I find this issue would have substantially interfered with their reasonable enjoyment of the rental unit during the time that the Tenants resided at the rental unit. Issue#2 – Garbage on the deck above the Tenants rental unit 24. Ms. R. states that the upper-level tenants would throw garbage into an unlatched garbage container which was placed on the deck for the upper-level unit. Ms. R. states that animals would tear open the garbage A. the garbage would be all over the deck A. it was not cleaned up by the upper-level tenants. Ms. R. states that the upper-level tenants had a baby A. there were also dirty diapers all over the deck. Ms. R. states that she reported this issued to the L. shortly after the Tenants moved into the rental unit. The upper deck was located above the Tenants bedroom window A. the rental unit did not have air conditioning. Ms. R. states they could not open their windows due to the smell from the upper deck. Ms. R. states that the L. did not do anything to address this issue. 25. Ms. C. states the upper-level tenants used garbage tags A. the option of garbage tags was offered to the Tenants. Ms. C. states she contacted the City of Innisfil A. they advised her that they would only provide her with one garbage bin with a latch. When Ms. C. was asked at the hearing if she could have purchased a second garbage bin with a latch from the City of Innisfil, she stated that the City of Innisfil did not provide her with that option. Ms. Chaudry testified that the L. did not attend the residential complex to address the garbage issue. 26. Ms. R. states that garbage tags would not be useful in preventing the animals from getting into the garbage. Ms. R. produced copies of undated text message correspondence with the L. which notes that the L. suggested the Tenants use garbage tags. A text message from Ms. R. notes that there is nowhere to put the excess garbage when the garbage bin is full. 27. I find that the L. failed to meet their obligations under s. 20(1) of the Act when the L. did not rectify the issue with the open garbage on the upper deck. I find that the L. did not take reasonable steps to address this straightforward issue. I do not accept Ms. Chaudhry’s explanation is reasonable that the City of Innisfil did not provide her with the option of purchasing a second latched garbage bin. I find the L. did not make a reasonable effort to obtain additional latched garbage bins which would have contained the garbage A. prevented it from being accessed by animals. I do not find that Order Page 5 of 8  File Number: LTB-L-023444-23 garbage tags which are typically attached to garbage bags would provide any assistance in preventing animals from tearing open the garbage bags. It was undisputed that the residential complex is in a rural area. Therefore, I find it would be reasonable that the garbage would need to be secured to prevent animals from accessing it. 2023 ONLTB 74161 (CanLII) 28. Further, the L. lives 15 minutes away from the residential complex but Ms. C. stated the L. never attended the rental unit to inspect the issue with the garbage. Ms. C. responded to the issue raised by the Tenants by text message. I find this was unreasonable A. supports that the L. did not take the necessary steps to mitigate this issue. I find this issue significantly impacted the Tenants reasonable enjoyment of the rental unit as their bedroom was located right below the deck. I accept Ms. R.’s testimony that this issue was first reported to the L. shortly after the Tenants moved in which was not disputed by Ms. C.. As I have determined that the L. did not take steps to mitigate this issue, I accept that the issue with the garbage occurred for the duration of the time the Tenants resided in the rental unit A. therefore the Tenants are entitled to a rent abate for this period from August 20, 2022 – July 31, 2023. Issue#3 – Exterior light on driveway inoperable 29. Ms. R. states that there is a long driveway at the residential complex A. the exterior light which shines onto the driveway stopped working in October 2022 A. this was a safety issue. Ms. R. states the lightbulb was replaced but this did not repair the issue. Ms. R. states that she believes this issue was not repaired for the duration of the tenancy. 30. Ms. C. states that the upper-level tenants replaced the lightbulbs for the exterior driveway lights A. that the lights were working in July 2023. 31. I do not find the Tenants are entitled to a rent abatement for the exterior driveway light issue because I do not find the Tenants have provided any further details regarding the driveway light being inoperable beyond October 2022. Therefore, I am not persuaded that this issue was occurring for the duration of tenancy as stated by Ms. R.. Issue#4 – Unable to use fireplace at rental unit 32. Ms. R. states that the Tenants were unable to use the fireplace which was the primary heat source for the rental unit. Ms. R. states the Tenants could not obtain tenant insurance because there was no Wood Energy Technology Transfer (‘WETT’) inspection report obtained by the Landlord for the fireplace. Ms. R. testified that the Tenants heated the rental unit by propane heat. 33. Ms. C. states that the Tenants brought this issue to the L. attention about one month after moving into the rental unit but the Tenants never provided the L. with any documentation to support that they could not obtain tenant insurance due to a lack of a WETT inspection. Order Page 6 of 8  File Number: LTB-L-023444-23 34. I do not find that the Tenants are entitled to a rent abatement relating to the issues raised for the fireplace. There was no documentation produced to support that the Tenants were denied tenant insurance, or that they had advised the L. of this. Based on Ms. R.’s testimony, the Tenants were not without a heat source for the rental unit as Ms. R. 2023 ONLTB 74161 (CanLII) testified the Tenants heated the rental unit using propane heat. It is ordered that: 1. The tenancy between the L. A. the Tenants is terminated as of September 30, 2023, the date the Tenants moved out of the rental unit with their belongings. 2. The Tenants are entitled to a rent abatement in the amount of $5,450.28 for the period of August 20, 2022 - July 31, 2023. 3. The Tenants shall pay to the L. $13,866.68. This amount includes rent arrears owing up to the date the Tenants moved out of the rental unit with their belongings A. the cost of filing the application, less the amount for the rent abatement. The rent deposit A. interest the L. owes on the rent deposit is deducted from the amount owing by the Tenants. See Schedule 1 below for the calculation of the amount owing. 4. If the Tenants do not pay the L. the full amount owing on or before November 25, 2023, the Tenants will start to owe interest. This will be simple interest calculated from November 26, 2023 at 7.00% annually on the balance outstanding. November 14, 2023 ____________________________ Date Issued Kimberly Parish Member, L. A. Tenants Board 15 Grosvenor St, 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 7 of 8  File Number: LTB-L-023444-23 Schedule 1 SUMMARY OF CALCULATIONS 2023 ONLTB 74161 (CanLII) A. Amount the Tenants must pay as the tenancy is terminated Rent Owing To Move Out Date $21,600.00 Application Filing Fee $186.00 Less the amount the Tenants paid to the L. since the - $0.00 application was filed Less the amount of the last month's rent deposit - $2,400.00 Less the amount of the interest on the last month's rent deposit - $69.04 Less the amount the L. owes the Tenants for an -$5,450.28 {abatement/rebate} Total amount owing to the L. $13,866.68 Order Page 8 of 8