LTB Order LTB-L-074038-22

2023 ONLTB 29915 (CanLII) Order under Subsection 87(1) Residential Tenancies Act, 2006 Citation: M. v F., 2023 ONLTB 29915 Date: 2023-04-20 File Number: LTB-L-074038-22 (HOL-08204-20) In the matter of: Main Floor, 2440 Albert Street W Rockland ON K4K0C4 Between: B.M.A.G.M. L. A. K. B. A. M. F. Tenant Your file has been moved to the L. A. Tenant Board’s new case management system, the Tribunals Ontario Portal. Your new file number is LTB-L-074038-22. B.M.A.G.M. (the 'L.') applied for an order requiring K. B. A. M. F. (the 'Tenant') to pay the rent that the Tenant owes. This application was heard by videoconference on October 3, 2022. The L. A. the Tenants attended the hearing. The Tenants were represented by Samuel Gauthier. Determinations: PROCEDURAL HISTORY 1. The parties first appeared before the Board on November 4, 2020. At this hearing, both parties were present, A. I began to hear the L.’ evidence with respect to the application for rent arrears before adjourning the matter due to insufficient time. An interim order was issued requiring ongoing rent payments to the L. until the matter is resolved. Order Page: 1 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) 2. The next time the parties appeared before the Board was on May 3, 2021. At that hearing, all parties were present, A. I proceeded to hear the preliminary issues raised by the Tenants A. the Tenants’ claims pursuant to section 82 of the Act before adjourning the matter due to insufficient time. At this hearing, the Tenants’ retained SG. 2023 ONLTB 29915 (CanLII) 3. The next appearance by the parties before the Board was on September 2, 2021. At this hearing, all parties were present, A. I continued to hear the Tenants’ claims under section 82 of the Act as well as the L.’ response before adjourning the matter due to insufficient time. 4. The final time the parties appeared before the Board was on October 3, 2022. At this hearing all parties were present, A. I heard evidence from the L. about the Tenants’ claims as well as the submissions from all parties. PRELIMINARY ISSUES A. Tenants’ Adjournment Request: November 4, 2020 5. At the hearing on November 4, 2020, the Tenants sought an adjournment as he disputed the arrears outstanding as claimed by the L. A. required time to obtain his evidence. The Tenants testified that they only received the notice of hearing on October 26, 2020 A. were only able to speak with the bank before the hearing. 6. The L. opposed the adjournment request as they felt it was an attempt by the Tenants to delay the eviction process. 7. The Board’s records show the notice of hearing was served to the parties on October 23, 2020. The Tenants confirmed receipt three days later. This still gave the Tenants nine days to obtain evidence. 8. The N4 notice of termination that forms the basis of the L1 application outlines the L.’ claim from rent arrears going back to December 2019 – this was served August 14, 2020. Thus, I find that the Tenants have been aware since August 2020 of the L.’ claim A. has therefore had sufficient time to obtain his evidence before the hearing date. 9. As such, the Tenants’ request to adjourn was denied A. I proceeded to hear the application. B. Tenants’ Request to Convert the Application from L1 to L9 10. At the hearing on May 3, 2021, the Tenants’ representative advised the Board that the rental unit had been sold A. that the named L. were no longer the L. of the rental unit. As such, the application should be converted to an arrears only application, without eviction. Order Page: 2 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) 11. The (now former) L. confirmed that the house had been sold A. that the current L. took over on April 3, 2021, after the L1 application was filed. While the last month rent deposit was transferred to the new L., the arrears for the period ending March 31, 2021 were not. As such, the applicant L., who is now the former 2023 ONLTB 29915 (CanLII) L., seeks an order only for the arrears that are owed to them. 12. The definition of “Landlord” in subsection 2(1) of the Act reads as follows: “Landlord” includes: a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex A. who permits another person to also occupy the unit or any part of the unit, … 13. Section 18 of the Act says: “Covenants concerning things related to a rental unit or the residential complex in which it is located, run with the land, whether or not the things are in existence at the time the covenants are made.” It is commonly accepted that what this provision means is that when a property is sold A. there are sitting residential tenants, the tenancy agreements “run with the land” meaning they remain in place on the same terms A. conditions as existed prior to the sale. The new owner steps into the shoes of the old L.. 14. The primary purpose of the provision was to abolish the common law distinction between covenants in esse (which ran with the land) A. covenants in posse (which did not). At common law examples of covenants which have always been said to run with the land include the obligation to pay rent A. the Landlord’s obligation to provide the tenant with quiet enjoyment. As a result of section 18 of the Act it is quite commonplace for successor Landlord’s to bring applications for arrears of rent where the arrears of rent owing cover the period both before (that they have inherited) A. after the sale. 15. In this case, based on the evidence before the Board I find that the applicant L. is entitled to an order for the arrears that are owing to them. I say this because at the time the application was filed, on September 1, 2020 the former L. was still the L. in accordance with the definition under the Act. Further, the arrears being claimed by the (now) former L. are owed to them A. have not transferred to the new L.. 16. As such, the application is amended accordingly. C. What is the Lawful Monthly Rent? 17. On May 3, 2021, the Tenants also raised a preliminary issue with respect to the lawful monthly rent as they submit the notice of rent increase which was effective April 1, 2020 is Order Page: 3 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) defective as it fails to comply with the Act as it was not provided 90 days prior to the proposed increase date. 18. The Tenants testified that the letter dated January 28, 2020 advising them of the rent increase was only given to them on August 3, 2020. 2023 ONLTB 29915 (CanLII) 19. The L. testified that the Tenants were emailed a copy of the notice of rent increase on January 30, 2020 – a copy of this email was submitted into evidence. In addition to that, while they do not recall specifically, it is possible that the Tenants received a paper copy from the first-named L. on or about January 28, 2020 – a copy of this notice was also submitted into evidence. 20. The L. submit the amount of the increase is below the guideline amount from $1,575.00 to $1,609.00. The L. also submit that the Tenants did not raise this as an issue at the hearing on November 4, 2020. 21. Section 116(1) of the Act outlines the requirements surrounding notices of rent increase A. states: 116 (1) A L. shall not increase the rent charged to a tenant for a rental unit without first giving the tenant at least 90 days written notice of the L.’ intention to do so. 22. The problem here is that the L. notice of rent increase that took effect on April 1, 2020 did not comply with the Act A. I find, therefore, that it is not a valid notice of rent increase. 23. Thus, I find that the rent remains at $1,575.00 for the period April 2020 – March 2021. L9 APPLICATION 24. As of the hearing date, the Tenants were still in possession of the rental unit. 25. The lawful rent is $1,575.00. It is due on the first day of each month. 26. The arrears A. costs owing to March 31, 2021 total $971.00. 27. The L. seek an order for the arrears A. costs. 28. The Tenants disputes the arrears as claimed by the L. A. believes the L. is missing a $400.00 payment made by the Tenants. However, no documentary evidence was submitted in support of this assertion. 29. Without positive evidence, it is very difficult to establish a negative claim. Thus, in order for the Tenants’ claim to be successful, they must provide some positive proof of the disputed payment, which, I find, they did not. Order Page: 4 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) 30. At paragraph 26 of F. H. v. McDougall, 2008 SCC 53 (CanLII), the Court found that the civil standard of proof requires that evidence “must always be sufficiently clear, convincing A. cogent to satisfy the balance of probabilities test.” Here I find the Tenants have failed to meet the required standard. 2023 ONLTB 29915 (CanLII) SECTION 82 CLAIMS 31. The Tenants also seeks an abatement, if not a full waiver of the arrears due the issues they experienced at the rental unit. The Tenants raised the following issues pursuant to section 82 of the Residential Tenancies Act, 2006 (the 'Act'): a) Lack of heat at the rental unit; b) Flooding in the basement; c) Mould in the bedroom; A. d) Non-functional Oven 32. Section 82(1) of the Act states: 82 (1) At a hearing of an application by a L. under section 69 for an order terminating a tenancy A. evicting a tenant based on a notice of termination under section 59, the Board shall permit the tenant to raise any issue that could be the subject of an application made by the tenant under this Act if the tenant, (a) complies with the requirements set out in subsection (2); or (b) provides an explanation satisfactory to the Board explaining why the tenant could not comply with the requirements set out in subsection (2). 33. I proceeded to hear the Tenants’ claims under section 82 which were raised at the hearing on May 3, 2021. 34. Pursuant to subsection 29(2) of the Residential Tenancies Act, 2006 A. the principles found at paragraph 9 of Toronto Community Housing Corporation v. Allan Vlahovich, 2010 ONSC 1686, the limitation period cannot extend beyond May 4, 2020 with respect to any remedy. [9] …In light of the one year limitation period in s.29(2), the Board can only make a determination that a L. has breached an obligation under s.20(1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one-year period. While evidence of events prior to the commencement of the one-year period may be admissible at a hearing before the Board, for example, to enable the Board to understand the cause of the disrepair, this does not permit the Board to extend the remedy back to a time prior to the commencement of the statutory limitation period. 35. However, given the suspension to limitation periods that occurred between March 16, 2020 A. September 13, 2020 (pursuant to Ontario Regulations 73/20 A. 457/20 under the Order Page: 5 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) Reopening Ontario [A Flexible Response to COVID-19] Act, 2020, S.O. 2020, c. 17), with the enactment of Ontario Regulation 73/20, the Board is required to refrain from counting the days within the suspension period. Thus, issues A. remedies as far as December 22, 2019 can be considered on this application. 2023 ONLTB 29915 (CanLII) D. Lack of Heat in the rental unit 36. The Tenants testified that they did not have adequate heat in the rental unit since winter of 2015; however, in spring of 2020, the heat stopped working completely. They testified that during the winter months, the heat remained at 16°C in the rental unit which was very cold for them A. their five children – ages 14, 10,7,6,2. The Tenants testified that they reminded the L. every fall season that the heating was not working properly but that the L. failed to investigate their concerns further. 37. The Tenants testified that it was in conversation with the technician in November 2020, that they learnt that he had advised the L. of the issue in Spring of 2019 – however, the L. did nothing until after the hearing on November 4, 2020. 38. The Tenants testified that it was only on November 4, 2020, that the L. finally had the technician attend onsite, A. repair the issue allowing heat to be controlled at the main floor unit. Since then, there have been no further issues with respect to the heating at the rental unit. 39. The Tenants submitted a photograph of the thermostat, which was operational, dated November 3, 2020 showing a temperature of 16.5°C. This was the day before the first hearing of this application. The Tenants also submitted a copy of the email to the L. dated August 1, 2020 in support of their assertion that they informed the L. of this issue that remained outstanding. 40. The Tenants seek a 30% rent abatement for the period April 2019 to November 2020 or $3,780.00 for the discomfort associated with being cold inside their home for the duration of their tenancy until the heating issue was fixed; they testified that they survived with five children in the cold every year which was uncomfortable A. inconvenient for them. They testified that the L. did not offer any space heaters or other options to help them deal with the inadequate heat at their rental unit. 41. On cross-examination, the Tenants were unsure whether Brazeau Heating A. Cooling attended on November 4, 2020, A. whether they had said the battery was dead in the thermostat which was why the unit was not heating; the Tenants also do not recall the L.’ recommendation to use the oven as a source of heat as a temporary measure. The Tenants confirmed that it was only when the systems were separated in November 2020 that the heating worked properly in their unit. 42. The L. testified that the heating issue was brought up on two separate occasions. Once, it was due to the thermostat battery being dead A. requiring replacement – this Order Page: 6 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) was in November 2020 A. a copy of the text message A. invoice for the work was submitted into evidence. 43. The L. testified that the second time this issue was raised by the Tenants was The second time it was raised was when they were away in Florida in December 2019. 2023 ONLTB 29915 (CanLII) However, the L. contacted the technician who attended the rental unit the following month to address this issue. A copy of the invoices for the technician’s attendance at the rental unit dealing with heat was submitted into evidence. 44. The L. submits the issue with the heating was resolved as quick as possible A. that the Tenants’ claim should be dismissed. ANALYSIS 45. Subsection 2(1) of the Act defines “vital services” as follows: “vital service” means hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat. [Emphasis added.] 46. Subsection 4 of the Ontario Regulation 516/06 under the Act states: 4. (1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service. (2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level A. one metre from exterior walls in all habitable space A. in any area intended for normal use by tenants, including recreation rooms A. laundry rooms but excluding locker rooms A. garages, is at least 20 degrees Celsius. [Emphasis added.] 47. Based on the evidence before the Board, I am satisfied that the L.’ failure to ensure adequate heating in the rental unit constitutes the withholding of vital services A. substantial interference with the Tenants’ reasonable enjoyment of the rental premises. Thus, I find the L. was in breach of subsections 20(1), 21(1) A. 22(1) of the Residential Tenancies Act, 2006. 48. I say this because the evidence before the Board supports the Tenants claim that the heating remained at 16°C which is below the legal requirement during the prescribed period A. that there was no evidence to the contrary to show that any investigation that Order Page: 7 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) took place in the rental unit to determine why the temperature was below the required amount. 49. As such, I find the Tenants are entitled to a remedy for this issue at the rental unit between 2023 ONLTB 29915 (CanLII) December 22, 2019 to November 4, 2020 or 227 days. 50. Abatement of rent is a contractual remedy on the principle that if you are paying 100% of the rent then you should be getting 100% of what you are paying for A. if you are not getting that, then a tenant should be entitled to abatement equal to the difference in value. It is the compensation to the tenant for the inadequate state of repair A. or inconvenience or actual loss of use of the rental unit. In determining the amount of an abatement of rent, I must consider the impact on the Tenants. 51. In Tenant of 328 Spring Garden Ave., Toronto v. Varki, which was a case about the L.’ failure to ensure adequate heat for a period of six weeks, the Courts found it appropriate to award a 20% rent abatement. 52. While the Tenants seek a 30% rent abatement, considering the case law above, A. given my knowledge A. experience in similar matters, I find it appropriate to award the Tenants a 20% rent abatement for the period specified above, or $2,351.72. E. Flooding in the Basement 53. The Tenants testified that every year in the spring, there was a flood in the basement; while the basement did not form part of their rental unit, it was a common space where all tenants would do their laundry. The Tenants testified that the flood was never cleaned or pumped out, the water just evaporated on its own which resulted in flies A. a foul, damp odour. 54. As a result, the Tenants testified that the washer A. dryer were put on skids to avoid any damage to these machines. A picture of this was submitted into evidence in support of this assertion. 55. The Tenants testified that they also experienced flooding in their bedroom when the upstairs unit bathtub was leaking A. informed the L. of this issue on June 26, 2019 – a copy of the text message was submitted into evidence in support of this assertion. However, it took the L. 10 months to fix this issue which resulted in the loss of the use of their bedroom space due to the leaking A. mould that had subsequently accumulated. 56. The Tenants testified that once the L. fixed the issue, they no longer experienced flooding in their bedroom, however the basement flooding issue remained live. Several photographs of the wet basement were submitted into evidence in support of their assertion. Order Page: 8 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) 57. The Tenants seek compensation for the inconvenience of dealing with the flies A. foul smell in the basement A. the loss of the use of their bedroom for the period April 2020 to March 2021 in the form of a 15% rent abatement or $2,835.00. 58. The L. testified that he was aware of two instances of flooding in the basement – 2023 ONLTB 29915 (CanLII) the first was an issue with the pipe was on the hot water tank. After this flood, the L. washed the basement twice with bleach. The L. submits this flood was out of the L.’ control. 59. The second time the L. became aware of a flood in the basement was with respect to the sump pump flood which had to be replaced. The L. submits that the house was 100 years old A. the basement had never been rented out to a tenant. 60. With respect to the flood in the bedroom, the L. submits that he had never been told that there was a flood in the bedroom, just that there was a leak A. that he had sent three plumbers to deal with this issue as promptly as possible. 61. The L. seeks that the Tenants’ claim be dismissed. ANALYSIS 62. With respect to the flood in the basement, I find that the evidence is insufficient to establish that the L. was in breach of subsection 20(1) or 22(1) of the Act. I say this because while there is no dispute that there were at least two floods in the basement, the evidence before the Board suggests that they were due to circumstances beyond the L.’ control – namely, a sump pump breakdown A. a pipe issue. 63. While the Tenants’ testified to the impact of these floods, namely that they omitted a foul odour A. attracted pests (flies), the L.’ evidence indicated that they cleaned the unit with bleach. Nothing further was presented by the Tenants to contradict the L.. 64. Furthermore, it is undisputed that the basement does not form part of the rental unit A. is a common space. 65. As such, absent anything more, the Tenants’ claim for this issue must be dismissed. 66. With respect to water in the bedroom, based on the evidence before the Board, including the text messages submitted by the Tenants I find that the Tenants suffered from a leak in their bedroom A. not a flood. I find that the leak was first noticed in Jun of 2019 A. repaired in December 2019 – although the date is not specified. 67. As the period falls outside of the remedy period pursuant to subsection 29(2) of the Act, A. the date in December 2019 of the repair was not specified, this claim must also be dismissed. F. Mould in the Rental Unit Order Page: 9 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) 68. The Tenants testified that related to the flood in the bedroom was the issue of the formation of mould; this was first raised by the Tenants to the L. on October 3, 2019; however, as of November 2, 2020 this issue was still not addressed. 69. The Tenants presented several text messages between the period October 2019 A. 2023 ONLTB 29915 (CanLII) January 2020 to demonstrate the fact that this issue remained outstanding, including conversations with the plumber to not have the baby sleep in the bedroom due to the mould. 70. The Tenants further testified that there was mould in the kitchen area as well A. photographs of this were also submitted into evidence. As of the hearing date, this issue remains. 71. The Tenants seek a 15% rent abatement for the period April 2020 to March 2021 totalling $2,835.00 for this issue. The Tenants also seek that the issue of mould be addressed at the rental unit. 72. On cross-examination, the Tenants denied refusing entry to the contractors to attend the unit. 73. The L. submits that once the Tenants complained of mould, he arranged for contractors to attend the unit to address the issue as quickly as possible. The L. submits that the text messages demonstrate his prompt response A. arrangement of the plumber to attend. 74. The L. also explains his difficulty where one of the plumbers refused to continue the job due to the mess at the rental unit A. so the L. had to hire another person to address it. 75. The L. seeks that this claim be dismissed. ANALYSIS 76. Based on the evidence before the Board, I am satisfied that the rental unit was in a state of disrepair as early as October 3, 2019, when the Tenants brought the issue of mould to the L.’ attention. This is undisputed by the parties. 77. As such, I find that the L. was in breach of subsections 20(1) A. 22(1) of the Act A. are entitled to a rent abatement for this issue. 78. It is unclear why this issue has still not been addressed at the rental unit although the L. attempt to justify the delay due to contractors walking off the job. Therefore, I find that the L. failed to act in a timely A. effective manner to address the issue of mould at the rental unit. 79. With respect to the remedy sought by the Tenants, given my knowledge A. experience in other similar matters, I find it appropriate to grant the Tenants a 10% rent abatement for this issue for the period requested, or $1,890.70. Order Page: 10 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) 80. I also find it appropriate to order that this issue be resolved within 30 days from the date of this order, failing which an ongoing rent abatement of $155.40 shall be awarded until the issue is resolved. G. Non-functional Oven 2023 ONLTB 29915 (CanLII) 81. The Tenants testified that due to the issue of inadequate heat at the rental unit A. their extensive use of the oven to maintain heat, they required a frequent replacement of the oven at the rental unit. On some occasions, the Tenants went without an over for several days until it was replaced by the L.. 82. The Tenants presented text messages of correspondence between them A. the L. about this issue. On January 18, 2020, the Tenants texted the L. that the oven stopped working – the L. responded right away A. replaced the unit in 24 hours. 83. The next time the Tenants texted the L. about this issue was on February 4, 2020 that the oven was not working – the stove was replaced on March 1, 2020. The next time the Tenants advised the L. of the issue with the over was in December 2020 A. a new one was replaced by February 2021. 84. As a result of the delays in February 2020 A. December 2020, the Tenants incurred out of pocket expenses for feeding their family of 7 by ordering out or cooking at their mom’s place. The Tenants seek a 15% rent abatement for the 3 months A. 1 week they had to wait for a new unit or $767.81. 85. On cross-examination, the Tenants confirmed that on March 1, 2020, they received a message from the L. to drop of the new stove unit but that they were at hockey practice A. asked the L. not to drop it off- contributing to the delay in receiving the new unit. 86. The L. denies receiving notice in December 2020 about the malfunctioning oven but confirms that the Tenants advised him of the issue in January A. February 2020. 87. The L. further submits that each time the Tenants brought the issue to his attention, he promptly repaired the issue A. if he couldn’t, he made arrangements for its replacement. 88. On cross-examination, the L. recalls sending someone to the rental unit to address the issue with the oven in December 2020 A. fixing it in February 2021. 89. Based on the evidence before the Board, I find that the stove was in a state of disrepair for the following periods: February 4 2020 – March 1, 2020 A. December 2020 to February 2021. 90. It is unclear why it took the L. almost a month to replace the stove in February 2020 A. then a month or so in December 2020. Therefore, I find that the L. failed 11 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) to act in a timely A. effective manner to address the issue of the malfunctioning oven at the rental unit for that period. 91. With respect to the remedy sought by the Tenants, given my knowledge A. experience in other similar matters, I find it appropriate to grant the Tenants a 5% rent abatement for this 2023 ONLTB 29915 (CanLII) Order Page: issue for the period requested, or $251.23. I say this because for all three replacements, it appears that the stove was functional A. that only the oven was not. 92. This order contains all of the reasons for the decision within it. No further reasons shall be issued. It is ordered that: 1. The arrears A. costs owing to March 31, 2021, total $563.00. 2. The L. shall pay to the Tenants a rent abatement of $3,930.65. This amount represents the rent abatement of $4,493.65 less the $563.00 the Tenants owe to the L. in rent arrears. 3. If the L. do not pay the Tenants the full amount owing on or before May 1, 2023, the L. will start to owe interest. This will be simple interest calculated from May 2, 2023 at 6.00% annually on the balance outstanding. 4. The Tenants have the right, at any time, to collect the full amount owing or any balance outstanding under this order. 5. On or before May 20, 2023, the L. shall ensure the issue of mould at the rental unit has been rectified. 6. If the L. fail to comply with paragraph 5 of this order, the Tenants may deduct a rent abatement of $155.40 each month, starting June 2023, until the issue of mould has been rectified at the rental unit. April 20, 2023 ____________________________ Date Issued Sonia Anwar-Ali Member, L. A. Tenant Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 12 of 13  File Number: LTB-L-074038-22 (HOL-08204-20) If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. 2023 ONLTB 29915 (CanLII) Order Page: 13 of 13