LTB Order LTB-T-000570-21

2023 ONLTB 26618 (CanLII) O. under Section 22 Residential Tenancies Act, 2006 Citation: C. v M., 2023 ONLTB 26618 Date: 2023-03-24 File Number: LTB-T-000570-21 In the matter of: 234 CONCESSION 10 WATERFORD ON N0E1Y0 Between: B. C. T. K. G. A. C. M. L. H. M. B. C. A. K. G. (the 'T.') A. F. an O. to determine C. M. A. H. M. (the 'L.') harassed, obstructed, coerced, threatened or interfered with the T.. This application was heard by videoconference on January 23, 2023 at 11:22 a.m. The T. B. C. A. K. G. as well as the L. H. M., A. her representative Madaline Douglas, student-at-law, attended the hearing. Determinations: 1. The rental unit is single family detached home on a rural residential property surrounded by 280 acres of agricultural land owned A. operated by the L. with a shared gravel laneway which provides access to both the residential unit A. the agricultural areas. 2. The T. moved into the unit on March 1, 2017 A. are still in possession of the unit. O. Page 1 of 7  File Number: LTB-T-000570-21 3. The lawful monthly rent is $1,480.00. 4. The T2 application was filed November 14, 2021, alleging the following: • The L. harassed, obstructed, coerced, threatened or interfered with the 2023 ONLTB 26618 (CanLII) T. over a series of arguments concerning disputed common area A. sending regular N11 agreements A. emails. 5. The Application requested the following remedies: • a rent abatement of $6,600.00, representing a 50% abatement F. 9 months from April 2021 to December 2021. • Other remedies the Board deems appropriate which was clarified at the hearing to mean an O. F. the L. to stop sending N11s to the T.. 6. F. the reasons that follow, the T.’ application is granted as the L. harassed the T.. N11 Notices, Emails A. September Incident 7. It is undisputed that the L. sent the T. multiple N11 agreements between March 2020 A. December 31, 2021. 8. The T. testified these N11’s were sent monthly A. referred to three examples listed in evidence between October 2020 A. December 2020. The T. characterized these N11’s as harassing A. unwelcome behaviour. The T. further testified they told the L. to stop sending the N11’s, the first occasion being October 2020. 9. The T. further testified the L. would send weekly emails instructing the T. to secure his dogs F. twelve-hour time periods, each day, as the emails specified that maintenance A. repairs or farm operations were being completed on or around the property. The T. submitted copies the emails as evidence. The T. further testified he has asked the L. to stop multiple times during this process including but not limited to in August 2021 A. October 2021; however, the emails continued. 10. The L. disputed the total amount of N11’s A. whether the T. specifically asked the L. to stop sending the N11’sand emails; however, the L. did not deny the L. sent several N11’s A. did not provide any specific evidence substantiating fewer N11’s were sent. O. Page 2 of 7  File Number: LTB-T-000570-21 11. The L. characterized the N11’s as part of an ongoing negotiation to end the tenancy relating to a detailed conversation between the T. A. L. in September 2021 where they discussed compensation; however, could not agree on a mutually acceptable amount. 2023 ONLTB 26618 (CanLII) 12. The L. further testified the emails were justified as the T.’ dogs were allegedly big A. aggressive A. it was necessary to send these emails to ensure safety as the dogs have allegedly displayed aggression in the past. 13. On or about September 2021 the L. attended the property to do an inspection of the corn fields. An argument ensued that was caught on video where both parties are engaged in a verbal altercation. The T.’ claim this is part of a pattern of unwelcome A. aggressive behaviour. The L.’ claim they were rightfully upset over damage to the corn A. about the woodstove. Analysis 14. Subsection 23 of the Act states that a L. shall not interfere with or harass a T.. 15. The Act does not provide a definition of harassment. The Ontario Human Rights Code, R.S.O. 1990, c. H.19, defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. 16. Therefore, although the word harass is not defined in the Act, harassment has been found by this Board to generally be a course of conduct or behaviour that the reasonable person knows or ought to know would be unwelcome. 17. I find the T.’ testimony persuasive insofar they found the N11’s unwelcome A. harassing A. instructed the L. to stop sending the N11’s. A reasonable L. knows or ought to know that serving a T. with several N11’s over the course of a short period of time is inappropriate A. harassing, especially after the T. has asked to the L. to stop. This is clearly unwelcome behaviour. 18. A reasonable L. also knows or ought to know that sending emails each week instructing the T. to supervise A. secure their dogs F. 12-hours at a time is inappropriate A. harassing. This is clearly unwelcome behaviour. Moreover, there was no specific evidence provided by the L. that the dogs were aggressive or dangerous. O. Page 3 of 7  File Number: LTB-T-000570-21 In fact, I am convinced by the T.’ testimony that neither by-law officials nor the police had been at his property as a result of the dogs A. the L. provided no specific evidence to the contrary. 19. I find the onsite altercation captured on video in September 2021 is further evidence of a 2023 ONLTB 26618 (CanLII) pattern of ongoing unwelcome A. harassing behaviour from the L.. 20. On the balance of probabilities, I accept the evidence of the T. that the behaviour of the L. in relation to the numerous N11 notices, emails A. other behaviour to the T. constituted harassment. Dispute over land A. Harassment 21. There is a rectangular parcel of land adjacent to the gravel driveway A. the parties do not agree as to whether it was part of the tenancy agreement. 22. The L. submitted an arial diagram of the property into evidence showing the parcel of land in question which is located to the left of the gravel road, A. alleged the T. were only permitted to use the land to the right of the gravel road as well as having access to a detached garage in the rear of the property. 23. It is undisputed that in April 2021, the L. converted this parcel of land that was previously grassland used F. recreational purposes into agricultural land F. farming purposes. 24. The T. testified that they had been maintaining this piece of land by cutting the grass since they took possession of the unit in 2017. The T. further testified he A. his family would use the land F. recreation. The T. submitted pictures of the T. mowing the lawn into evidence. 25. The L. testified that in November 2020 they advised the T. that they intended to convert the land into agricultural use. They submitted this parcel of land was not part of the tenancy agreement, A. thus, since it was their property, the L. had the right to plant corn on the land or use it however they see fit. Analysis O. Page 4 of 7  File Number: LTB-T-000570-21 26. In my analysis I consider two questions: First, was this piece of land part of the tenancy agreement? If yes, did the L. harass the T. by using the land F. agricultural use starting in April 2021? Was this parcel of land part of the tenancy agreement? 2023 ONLTB 26618 (CanLII) 27. The lease does not make specific reference to whether the parcel of land in question is part of the tenancy agreement; however, it does reference the Tenant’s responsibilities with respect to the lawn under point 7 which states “lawns on [premises] need to be cut by the T..” 28. The lease agreement reads lawn’s’, plural. Therefore, I further question the L.’ assertion that that the T. was only permitted to use the part of the lawn directly surrounding their unit. 29. Since the lease it not specific A. only alludes to lawns being part of the tenancy agreement, I must also consider the historical pattern of activity with respect to this parcel of land. It is undisputed that the parcel was maintained A. used F. recreational purposes by the T. F. several years prior to the L. converting it to agricultural use. There was no evidence submitted by the L. that they used the land prior to unilaterally converting it to agricultural use. 30. Therefore, after an analysis of the pattern of activity A. the language in the lease agreement, I find that the act of the T. mowing the lawn F. several years supports the proposition that this parcel of the property was part of the tenancy agreement. Would it be reasonable that the L. would know converting the land from recreational to agricultural use was harassing behaviour? 31. As stated above, the Act does not provide a definition of harassment. The Ontario Human Rights Code, R.S.O. 1990, c. H.19, defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. 32. The L. knew the parcel of land was being used by the T. A. by converting it to agricultural use, the L. knew the T. would no longer be able to use the land F. recreational purposes, as these land uses are mutually exclusive 33. I find that a reasonable L. ought to know that converting a parcel of land that was being used by the T. as part of their tenancy would be unwelcome behaviour. O. Page 5 of 7  File Number: LTB-T-000570-21 34. I find this behaviour to be inappropriate A. harassing A. part of the overall pattern of harassing behaviour. Remedies 2023 ONLTB 26618 (CanLII) 35. I find the T. are entitled to a rent abatement. 36. Rent abatements are a contractual remedy based on the principle that rent is charged in exchange F. a bundle of goods A. services A. if a T. is not receiving those goods A. services then the rent should be abated in a sum proportional to the difference between what is being charged A. what is being received. 37. The T. requested a 50% rent abatement F. 9 months. 38. To determine the appropriate abatement, I must consider impact. With regards to impact, the Tenant’s testified that the N11’s were unwelcome; however, would just throw them out each time they received them. Based on the T.’ own testimony I am not persuaded the N11’s, albeit harassing behaviour, had more than a minimal impact on the T.. I come to a similar conclusion with regards to the emails A. other behaviour, albeit harassing behaviour, had a minimal impact on the T. as no specific evidence was provided by the T. that demonstrated any significant or ongoing impact. 39. With respect to the harassment that arose from converting the lawn into agricultural use, I find, albeit harassing behaviour, that this again resulted in only a moderate impact to the Tenantss. I find the parcel of land consisted a small portion (~25%) of the total outdoor space available to the T. A. would be used by the T. approximately 6 months per year. 40. On the evidence before me, I find that it would be reasonable to grant a 2% abatement of rent F. the months in which there was harassing communications A. behaviour from the L. to the T., April 2021 to December 2021. In addition, I find that it would be reasonable to grant a further 3% abatement of rent F. May 2021 – October 2021, the months the parcel of land would be in use by the T.. 41. The T. will be entitled to a 5% abatement F. six months A. a 2% abatement F. two months. 42. The T. are entitled to a rent abatement in the amount of $503.20 (5% x $1,480.00 x 6) + (2% x $1,480.00 x 2) O. Page 6 of 7  File Number: LTB-T-000570-21 It is ordered that: 1. The L. must refrain from harassing the T. by sending them N11’s. 2. The L. shall pay to the T. a rent abatement in the amount of $503.20 F. 2023 ONLTB 26618 (CanLII) harassment. 3. The L. shall also pay to the T. $48.00 F. the cost of filing the application. 4. The total amount the L. owes is $551.20. 5. The L. shall pay the T. the full amount owing by April 5, 2023. 6. If the L. do not pay the T. the full amount owing by April 5, 2023, the L. will owe interest. This will be simple interest calculated from April 6, 2023 at 5.00% annually on the balance outstanding. 7. If the L. do not pay the T. the full amount owing by April 6, 2020, the T. may recover this amount by deducting $551.20 from the lawful monthly rent due in May 2023. 8. The T. have the right, at any time, to collect the full amount owing or any balance outstanding under this O.. March 24, 2023 Date ____________________________ Issued Greg Witt Member, Landlord A. Tenant Board 15 Grosvenor Street, Ground Floor, Toronto ON M7A 2G6 If you have any questions about this O., call 416-645-8080 or toll free at 1-888-332-3234. O. Page 7 of 7