LTB Order LTB-L-030083-23

2023 ONLTB 58143 (CanLII) Order under Section 69 / 89 Residential Tenancies Act, 2006 Citation: T.C.O.T.C.O.W. v C., 2023 ONLTB 58143 Date: 2023-08-29 File Number: LTB-L-030083-23 In T. matter of: 224, 576 WOOLWICH ST GUELPH ON N1H3Y3 Between: T.C.O.T.C.O.W. Landlord And K.C. Tenant T.C.O.T.C.O.W. (T. 'Landlord') applied for an order to terminate T. tenancy and evict K.C. (T. 'Tenant') because: • T. Tenant, another occupant of T. rental unit or someone T. Tenant permitted in T. residential complex has substantially interfered with T. reasonable enjoyment or lawful right, privilege or interest of T. Landlord or another tenant; • T. Tenant, another occupant of T. rental unit or a person T. Tenant permitted in T. residential complex has seriously impaired T. safety of any person and T. act or omission occurred in T. residential complex; • T. Tenant, another occupant of T. rental unit or someone T. Tenant permitted in T. residential complex has wilfully caused undue damage to T. premises. T.C.O.T.C.O.W. (T. 'Landlord') also applied for an order requiring K.C. (T. 'Tenant') to pay T. Landlord's reasonable out-of-pocket costs T. Landlord has incurred or will incur to repair or replace undue damage to property. T. damage was caused wilfully or negligently by T. Tenant, another occupant of T. rental unit or someone T. Tenant permitted in T. residential complex. This application was heard by videoconference on August 15, 2023. Order Page 1 of 8  File Number: LTB-L-030083-23 T. Landlord’s Agent Ashley Riehl and T. Landlord’s Legal Representative Peter Schroeder and T. Tenant K.C. attended T. hearing. T. Tenant was represented by Tenant Duty Counsel Britney Rodgers. Adele Arpino and Louise McCarthy attended with T. Tenant as support. 2023 ONLTB 58143 (CanLII) Determinations: 1. As explained below, T. Landlord has proven on a balance of probabilities T. grounds for termination of T. tenancy and T. claim for compensation in T. application. 2. T. Tenant was in possession of T. rental unit on T. date T. application was filed. 3. On April 12, 2023, T. Landlord served T. Tenant an N7 notice of termination with a termination date of May 31, 2023. T. notice of termination contains T. following allegations: a) On March 29, 2023, T. Landlord received a report that it sounded like items were being violently smashed in T. rental unit as well as T. sound of a fire safety device being tampered with. Written notice of entry was provided so T. Landlord could conduct an inspection of T. rental unit on March 31, 2023 b) On March 31, 2023, employees of T. Landlord conducted and inspection and discovered T. following damage and fire hazards: • Hallway linen closet destroyed. • Most kitchen cabinet doors removed and missing. • Kitchen stove door damaged severely and ripped from stove. • Stove range hood is badly damaged and appears to be bashed inwards. • Storage closet adjacent to T. kitchen is destroyed and taped over. • Fire safety device fixtures (strobe/horn) in T. walls damaged and wall ripped out to T. studs. • Affixed smoke detector and surrounding ceiling material ripped out of ceiling. Live wires hanging. • Patio door is blocked by furniture preventing egress in an emergency. • Evidence of careless smoking in rental unit living room. Order Page 2 of 8  File Number: LTB-L-030083-23 • Many walls are severely and intentionally damaged. T. rubble from T. walls is scattered in piles throughout T. unit. • Inside of T. rental unit front door is damaged, showing significant 2023 ONLTB 58143 (CanLII) dents, scratches and marks. • Bathtub damaged and chipped. • Bathroom mirror is smashed. c) T. Landlord immediately repaired T. damaged fire safety devices on T. same day of T. inspection. T. rest of T. unit is essentially destroyed and T. Landlord’s preliminary estimate is approximately $10,000.00 if T. floor is salvageable and $15,000.00 if it is not. d) On April 3, 2023, T. Landlord’s Maintenance Coordinator reported T. fire alarm panel at T. residential complex indicated a problem in T. system located in T. rental unit. An emergency inspection of T. rental unit was conducted and it was discovered T. heat detector and newly re-installed strobe/horn were both intentionally damaged. T. fire safety devices were again replaced at a cost of approximately $700.00. 4. Ashely Riehl testified on behalf of T. Landlord. She is T. Tenant Services Manager for T. C. of W.. 5. T. residential complex is a two-storey sprawl containing 100 units. T. Tenant resides in unit 224. 6. Ms. Riehl testified that on March 29, 2023, Lynne Johnson, a Property Services Officer for T. C. of W. received a report from another tenant that T. fire alarm system in T. rental unit was emitting sounds indicative of malfunction. Additional noises were also reported to be coming from T. rental unit. T. Landlord provided written notice to T. Tenant to conduct an inspection of T. unit on March 31, 2023. 7. On March 31, 2023, T. Landlord conducted an inspection of T. rental unit. T. Landlord submitted several photographs taken by Lynne Johnson during T. inspection. Lynne Johnson did not attend T. hearing. Ms. Riehl was not present for T. inspection and did not observe T. rental unit on that date. Her most recent visit to T. rental unit was on July 26, 2023 and she testified T. photographs being relied upon accurately depict T. observations she made on July 26, 2023. I asked T. Tenant if T. condition of T. rental unit was in dispute and T. Tenant confirmed it was not. 8. T. photographs taken on March 31, 2023 and submitted by T. Landlord clearly show T. damage articulated on T. N7 notice. T. only allegation I did not see evidence of was in relation to careless smoking. T. smoke alarms are removed and much of T. unit is Order Page 3 of 8  File Number: LTB-L-030083-23 destroyed. Drywall is ripped from T. studs, T. stove is ruined, T. patio door is blocked and T. floor is covered in debris. T. door appears to have several dents and other markings on it. T. vanity mirror has been damaged. 9. Ms. Riehl testified that T. fire alarm system in T. rental unit was repaired and replaced on March 31, 2023. On April 3, 2023, T. Tenant again damaged T. fire safety alarm 2023 ONLTB 58143 (CanLII) equipment that had been repaired and replaced three days earlier. T. Landlord submitted photographs taken on April 3, 2023 showing T. fire alarm and heat detector being damaged and removed. 10. T. Tenant did not dispute T. Landlord’s evidence and no objection was taken with it. T. Tenant agreed T. state of T. unit was as depicted in T. photographs. T. Tenant testified T. damage was mostly caused by throwing his skateboard. T. Tenant further testified he hears women being tortured and he tries to get this to stop by banging and throwing his skateboard. 11. I am satisfied on a balance of probabilities T. Tenant has seriously impaired T. safety of any person and T. act or omission occurred in T. residential complex. Damaging and removing T. fire detection system on two occasions clearly impairs T. safety of T. Tenant and other residents in T. complex as fire detection is a vital safety requirement. 12. I am also satisfied on a balance of probabilities T. Tenant has wilfully caused undue damage to T. premises. T. damage presented by T. Landlord and acknowledged by T. Tenant is so severe and extensive, it could not have been caused by accident or mere negligence. I am convinced T. damage to T. unit was done willfully by T. Tenant. This finding is supported in part by T. Tenant’s evidence that T. damage was caused by him throwing his skateboard. While I do not find throwing a skateboard alone could account for all T. damage to T. rental unit, throwing a skateboard is done willfully. Conduct Since T. N7 Notice was Served 13. T. Landlord’s evidence was that since T. N7 notice of termination was served T. conditions of T. rental unit have worsened. Ms. Riehl testified that May 23, 2023, her staff reported to her that T. plumbing and T. bathroom in T. rental unit had been damaged. T. Landlord submitted photographs showing T. bathroom in complete shambles. T. toilet is broken and T. sink is smashed and in pieces on T. floor. Walls are see through due to T. removal of drywall. Ms. Riehl testified T. damage to T. toilet had caused a flood in T. rental unit. Ms. Riehl also testified T. Landlord had plywood installed over wires that were exposed by T. Tenant when T. drywall was removed. 14. Photographs taken on June 8, 2023 show additional damage to T. rental unit as T. bathroom shower tiles have been damaged and some have been removed. More walls have been damaged with further removal of drywall. A photograph of T. bathtub is unrecognizable as such. 15. T. Landlord submitted photographs taken on June 16, 2023 showing a room with garbage and debris piled almost ceiling height. T. other photographs are examples of a Order Page 4 of 8  File Number: LTB-L-030083-23 clear progression of damage that has been occurring in T. rental unit since before T. N7 notice was served. T. rental unit has been completely destroyed, most of it reduced to rubble. 16. I asked T. Tenant if these photographs also accurately showed T. condition of T. rental unit and T. Tenant confirmed that they did. 2023 ONLTB 58143 (CanLII) Monetary Damage Claim 17. T. Landlord sought an order for $15,700.00 for T. reasonable costs they have or will incur to repair or replace T. damage caused by T. Tenant. T. Landlord submitted an estimate from JM Vivash Renovations into evidence. T. estimated cost to repair T. damage to T. rental unit as of June 1, 2023 is $31,262.59. 18. T. Landlord did not request an amendment to their application to reflect T. higher amount and submitted they would only seek T. $15,700.00 originally claimed on their application. I find this amount to be reasonable. 19. T. Landlord incurred costs of $186.00 for filing T. application and is entitled to reimbursement of those costs. N5 Notices 20. Since I have already found T. Landlord has proven T. Tenant has seriously impaired T. safety of any person at T. residential complex and willfully damaged T. rental unit, I find it unnecessary to make a determination on T. noise allegation contained on T. N5 notices served on T. Tenant. Section 83 Considerations 21. T. Tenant testified that he suffers from depression and anxiety. He was also diagnosed with a learning disability in June 2023. 22. T. Tenant was asked how his anxiety and depression have contributed to T. damage in T. rental unit. T. Tenant replied that at his former home he was physically abused. T. Tenant also was asked what impact his learning disability has on him and he testified he does not like going out and being around other people. 23. No medical evidence was submitted at T. hearing. While I find it most likely T. Tenant has a disability, no evidence was presented linking T. conduct of T. Tenant with his disability. Without more evidence, I am not convinced on a balance of probabilities depression, anxiety and T. Tenant’s learning disability caused or contributed to T. behaviour of T. Tenant. 24. Nevertheless, T. Landlord has attempted to accommodate and work with T. Tenant recognizing he has a disability. T. Landlord’s evidence was T. Tenant took possession Order Page 5 of 8  File Number: LTB-L-030083-23 of T. rental unit in September of 2022 and issues arose shortly thereafter. T. Landlord intervened in T. hopes of creating a successful tenancy. 25. T. Landlord has provided T. Tenant with support workers several times per week. These support workers discuss and brainstorm with T. Tenant to come up with ideas to help him deal with his disability. Ms. Riehl described T. Tenant as a highly connected tenant with 2023 ONLTB 58143 (CanLII) T. supports available. Ms. Riehl testified that case conferences are held with support staff and T. Tenant. T. most recent conference was July 25, 2023. Ms. Riehl last attended a conference with T. Tenant in late May 2023. 26. It is clear T. Landlord’s attempts to accommodate T. Tenant to avoid his destructive behaviour have not succeeded. I do not find it is T. Landlord’s responsibility alone to find a permanent solution to T. Tenant’s destructive conduct. No evidence was presented that any strategies or ideas have been presented to T. Landlord and rejected. I asked T. Tenant if he receives any treatment or takes medication for his disability and he answered that he does not. 27. While I am not convinced T. Tenant’s disability has led to T. conduct that has destroyed T. rental unit, I am convinced T. Landlord has done what they could to help and accommodate T. Tenant. Quite frankly, apart from continuously repairing and rebuilding T. rental unit, in T. absence of medical evidence, I do not know what more could be done in T. circumstances. 28. T. Landlord’s evidence was several tenants have been transferred out of T. residential complex due to T. disruptions and noise caused by T. Tenant. I can infer T. damage to T. rental unit was not done in silence and has had an impact on others residing in T. building. These units now sit vacant as they cannot be rented due to T. issues with T. Tenant. These units are subsidized and there is currently an eight year wait to reside in one. 29. T. Tenant’s evidence was he receives ODSP and his monthly rent is $145.00. He stated he has nowhere else to go and wants to remain in T. rental unit. His evidence was he is too old for shelters because he is older than 25 years of age. He believes he would be robbed and hurt if he was evicted and alone. T. Tenant believes he could pay T. Landlord $200.00 per month towards T. damage he has caused. He also stated that if he were to be evicted, he would need two months to find somewhere else to live. 30. I have turned my mind to whether T. Tenant could be accommodated by a conditional order. Since I do not find T. Tenant’s disability is connected to his destructive conduct I am not convinced a conditional order is appropriate or would succeed. No evidence was presented that showed T. Tenant’s behaviour was likely to change or improve. 31. I have considered all of T. disclosed circumstances in accordance with subsection 83(2) of T. Residential Tenancies Act, 2006 (T. 'Act'), and find that it would not be unfair to postpone T. eviction until October 29, 2023 pursuant to subsection 83(1)(b) of T. Act. This will provide T. Tenant 60 days from T. date of this order to find alternate living Order Page 6 of 8  File Number: LTB-L-030083-23 accommodations. T. Board recognizes T. pressing interests of T. Landlord while remaining mindful T. Tenant will need to access help and supports in finding a new home. It is ordered that: 2023 ONLTB 58143 (CanLII) 1. T. tenancy between T. Landlord and T. Tenant is terminated. T. Tenant must move out of T. rental unit on or before October 29, 2023. 2. If T. unit is not vacated on or before October 29, 2023, then starting October 30, 2023, T. Landlord may file this order with T. Court Enforcement Office (Sheriff) so that T. eviction may be enforced. 3. Upon receipt of this order, T. Court Enforcement Office (Sheriff) is directed to give vacant possession of T. unit to T. Landlord on or after October 30, 2023. 4. T. Tenant shall pay to T. Landlord $15,700.00, which represents T. reasonable costs of repairing T. damage and replacing T. damaged property. 5. T. Tenant shall also pay to T. Landlord $186.00 for T. cost of filing T. application. 6. T. total amount T. Tenant owes T. Landlord is $15,886.00. 7. If T. Tenant does not pay T. Landlord T. full amount owing on or before October 29, 2023, T. Tenant will start to owe interest. This will be simple interest calculated from October 30, 2023 at 6.00% annually on T. balance outstanding. August 29, 2023 ____________________________ Date Issued John Cashmore Member, Landlord and 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. In accordance with section 81 of T. Act, T. part of this order relating to T. eviction of T. Tenant expires on April 30, 2024 if T. order has not been filed on or before this date with T. Court Enforcement Office (Sheriff) that has territorial jurisdiction where T. rental unit is located. Order Page 7 of 8 File Number: LTB-L-030083-23 2023 ONLTB 58143 (CanLII) Order Page 8 of 8