LTB Order LTB-T-002465-21

2023 ONLTB 25687 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: T. v Wilson-Forbes, 2023 ONLTB 25687 Date: 2023-03-22 File Number: LTB-T-002465-21 In the matter of: 558 PERTH AVE TORONTO ON M6N2W7 Between: H. T. T. A. A. Wilson-Forbes L. H. T. (the ‘T.’) A. F. an O. D. A. Wilson-Forbes (the 'L.') or the L.'s superintendent or the L.'s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of the T.'s household. H. T. (the ‘T.’) also A. F. an O. D. A. Wilson-Forbes (the 'L.') harassed, obstructed, coerced, threatened or interfered with the T.. H. T. (the ‘T.’) also A. F. an O. D. A. Wilson-Forbes (the 'L.') entered the rental unit illegally. This application was heard by videoconference on March 7, 2023. The T. H. T. A. the L. A. Wilson-Forbes attended the hearing Determinations: 1. This T2 application alleges the L. entered the rental unit illegally, substantially interfered with the reasonable enjoyment of the rental unit by the T. A. that the L. harassed, obstructed, coerced, threatened or interfered with the T.. 2. The T. vacated the rental unit on November 30, 2021. The monthly rent was $1,500.00. O. Page: 1 of 8  File Number: LTB-T-002465-21 Illegal Entry 3. Section 25 of the Residential Tenancies Act, 2006 (the Act) states a L. may enter a rental unit only in accordance with sections 26 A. 27 of the Act. These sections read as 2023 ONLTB 25687 (CanLII) follows: 26 (1) A L. may enter a rental unit at any time without written notice, (a) in cases of emergency; or (b) if the T. consents to the entry at the time of entry. (2) A L. may enter a rental unit without written notice to clean it if the tenancy agreement requires the L. to clean the rental unit at regular intervals A., (a) the L. enters the unit at the times specified in the tenancy agreement; or (b) if no times are specified, the L. enters the unit between the hours of 8 a.m. A. 8 p.m. (3) A L. may enter the rental unit without written notice to show the unit to prospective tenants if, (a) the L. A. T. have agreed that the tenancy will be terminated or one of them has given notice of termination to the other; (b) the L. enters the unit between the hours of 8 a.m. A. 8 p.m.; A. (c) before entering, the L. informs or makes a reasonable effort to inform the T. of the intention to do so. 27 (1) A L. may enter a rental unit in accordance with written notice given to the T. at least 24 hours before the time of entry under the following circumstances: 1. To carry out a repair or replacement or do work in the rental unit. 2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit. 3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to O. Page: 2 of 8  File Number: LTB-T-002465-21 make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998. 4. To carry out an inspection of the rental unit, if, 2023 ONLTB 25687 (CanLII) i. the inspection is F. the purpose of D. whether or not the rental unit is in a good state of repair A. fit F. habitation A. complies with health, safety, housing A. maintenance standards, consistent with the L.’s obligations under subsection 20 (1) or section 161, A. ii. it is reasonable to carry out the inspection. 5. F. any other reasonable reason F. entry specified in the tenancy agreement. (2) A L. or, with the written authorization of a L., a broker or salesperson registered under the Real Estate A. Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the T. at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. (3) The written notice under subsection (1) or (2) shall specify the reason F. entry, the day of entry A. a time of entry between the hours of 8 a.m. A. 8 p.m. 4. The T. alleged four illegal entries. Her evidence was they occurred on October 1, 2021, October 4, 2021 A. twice on October 5, 2021. All of the entries involved the bathroom, which is not contained within the rental unit, but is a short distance down a shared hallway with the L.. The T. A. the L. do not share the bathroom. 5. The T.’s evidence was no notice was provided by the L. F. any of these entries. The L. did not dispute entering the T.’s bathroom on these dates. 6. The parties agreed that during email exchanges between them on September 21, 2021, the T. twice asked the L. if she wanted to check the bathroom over concerns with water damage A. issues with the bathtub. 7. The T. received an email from the L. on October 1, 2021 advising her the L. had been in the T.’s bathroom. The email details some concerns with the state of the bathroom A. request the T. refrain from taking baths until protective repairs are done. The T. was not at home during this entry. 8. On October 4, 2021, the T. received an email from the L. advising her a contractor had entered the T.’s bathroom to assess the condition A. estimate the time required F. repairs. The T. was not at home during this entry. O. Page: 3 of 8  File Number: LTB-T-002465-21 9. The L.’s evidence was she believed the emails from September 21, 2021 permitted her to enter the T.’s bathroom without providing the required 24 hours notice of entry. The L. did state that she provided notice F. the October 4, 2021 but did not provide any evidence she had done so. The L. also stated that she was just “popping in” to 2023 ONLTB 25687 (CanLII) take a look A. the entries only lasted F. approximately five minutes while the T. was not present. The L. agreed she could have sent a text to the T. but did not. 10. The L. testified that on October 5, 2021, she noticed water coming into her laundry room which shares a common wall with the T.’s bathroom. Concerned about damage, the L. knocked on the door to the T.’s bathroom A. entered after no one answered the door. The L.’s evidence was she thought the T. was not home A. the situation was urgent. 11. When the L. entered the Tenants bathroom, her evidence was she found the T. cleaning A. the water was running from both faucets. The L. testified the T. was wearing headphones A. she assumed the T. did not hear her knocking. According to the L., the T. asked her to come back in ten minutes A. the L. returned in 13 minutes to find the water still running. When she returned, she knocked on the door again before entering. It was the L.’s evidence the situation did not become an emergency until the water had been running A. soaking into the damage that was discovered by the contractor on October 4, 2021 A. travelling to her laundry room. 12. I am satisfied on a balance of probabilities the entries that occurred on October 5, 2021 were an emergency. The T. did not offer any evidence that she was not running the water at the time or that the bathroom did not contain damage requiring repair. Preventing water damage, in the moment, as it is flowing into other areas of the property meets the requirement of entry without notice contained in section 26(1)(a). 13. I find on a balance of probabilities the L. illegally entered the rental unit on October 1, 2021 A. October 4, 2021. The requirements contained in section 27(3) of the Act are clear. Written notice must be provided. I am not convinced the L. gave notice of either entry as no evidence of any written notice was submitted. Relying on an email exchange from several days earlier is not, in my view, consent at the time of entry as contemplated in section 26(1)(b) of the Act. The L. was required to provide the T. 24 hours notice F. these entries A. did not. I do not accept the L.’s unsubstantiated claim that she provided notice F. the October 4, 2021 entry. It was clear from her evidence she was operating on the belief notice was not required. Lastly, whether or not the T. was home is immaterial. The T.’s privacy interests endure even when they are away from home. Substantial Interference - Bathroom Repair 14. The T. testified on October 1, 2021, the L. asked her not to use the bathtub due to needed repairs. The L.’s evidence, supported by an email sent to the T., was that she was asked not to take baths. The shower is an attachment requiring standing in the bathtub. The T. took the email from the L. to mean that she could not use the shower either although the email from the L. does not request this. O. Page: 4 of 8  File Number: LTB-T-002465-21 15. Repairs to the bathroom were conducted from October 12, 2021 until October 13, 2021. The L. submitted an email dated October 12, 2021 advising the T. she could resume use of the bathroom “tomorrow night”. The T. submitted it was not until the 2023 ONLTB 25687 (CanLII) morning of October 14, 2021 that she was informed the bathroom repair was completed. I am satisfied the time period or the repairs was two days, those being October 12 A. 13, 2021. 16. The parties agreed that during the repairs the T. was without a bathroom A. no alternative accommodations were offered to the T. by the L.. The T. submitted an email in which the L. advised the T. that during the repairs she would need to make other arrangements as she will not be able to use the bathroom. The L.’s evidence was the T. did not request any consideration or accommodation from the L. so nothing was offered or provided. 17. The T. testified during the repairs, public restrooms were not open due to the Covid 19 pandemic. Her evidence was she used a bucket when her digestive system required relief. She also testified she did not shower or take a bath from October 1, 2021 until the repairs were completed. 18. I am satisfied on a balance of probabilities the T.’s reasonable enjoyment of the rental unit was substantially interfered with during the repairs done to the bathroom. Being without a functioning toilet or shower F. two days is a significant hardship to endure. 19. I am not satisfied the T. could not shower F. more than the two days the repairs took. It was clear in the email sent by the L. the request was not to take baths. If the T. went almost two weeks without taking a shower, I find that is down to her misreading the email sent to her by the L.. Substantial Interference A. Harassment -Email Message 20. The T.’s evidence was these claims overlapped in relation to an email she received from the L.. She testified the email conversations between herself A. the L. after the entries addressed above were threatening in nature. It is clear from the emails the parties disagree on when notice is required F. entry A. when it is not. The T. submitted an email from the L. dated October 6, 2021 in which the L. writes: I feel this conversation is getting adversarial A. I will not continue it in this vain. There are a few things you yourself are not following under the Residential Tenancies Act that I've been lenient about, so please don't even go there. You're also in violation of the Quarantine Act, so again, please don't communicate this way. This is not a path that will lead to a pleasant safe living environment. 21. The T.’s evidence was this email amounted to a threat A. thereafter she was worried about confrontations with the L. although the parties agreed they had no in person O. Page: 5 of 8  File Number: LTB-T-002465-21 interaction F. the remainder of the time the T. lived at the rental unit. It was the potential to interact with the L. the T. claimed to fear given the shared hallway. The T.’s reply to this email did not suggest she felt threatened. The T.’s evidence was she did not want to escalate the situation with the L.. 2023 ONLTB 25687 (CanLII) 22. The L.’s evidence was this email was a summary to the T. of how the tenancy had recently been unfolding. The L.’s evidence was the T.’s guest would not wear a mask as required A. the email referenced this A. the safety issue. The L.’s evidence was the email was not a threat A. there were no incidents between the two parties afterwards. 23. On my first reading of the October 6, 2021 email sent by the L. to the T., I took the unsafe reference to be in relation to the lack of adherence to the Quarantine Act. Even if I am incorrect, I do not find this email amounts to a threat. I find the communications between the parties show a relationship that may be souring as a result of the issues with the bathroom A. the circumstances that unfolded. There is no pattern of behaviour in which the L. continues to incite or bother the T.. Nothing else occurred after the repairs were completed. 24. The T. testified she was worried about future illegal entries A. future bad behaviour from the L. based on the email she perceived as a threat. The T. agreed the parties did not interact in person again. I found the T.’s concerns about the future to be speculative A. unsupported by evidence. 25. On this portion of the application, I am not satisfied on a balance of probabilities the T. has proven the L. substantially interfered with the T.’s reasonable enjoyment of the rental unit or harassed, coerced, threatened or interfered with the T.. I am also not convinced on a balance of probabilities the L.’s conduct induced the T. to vacate the rental unit when she did on November 30, 2021. As a result, this portion of the T.’s application is dismissed. Remedies 26. The T. is seeking an abatement of rent as a result of the illegal entry A. the substantial interference caused by the repairs to the bathroom. Abatement of rent is a contractual remedy based on the principle that if you are paying 100% of the rent then you should be getting 100% of what you are paying F. A. if you are not getting that, then a T. should be entitled to abatement equal to the difference in value. 27. The T. requested a global rent abatement of $1,500.00, which was the monthly rent. Her application as filed, requested $1,700.00 however the T. acknowledged this amount was an error as she filled in the amount of her rent where she currently resides. The T. was unable to articulate how she calculated the amount being sought. O. Page: 6 of 8  File Number: LTB-T-002465-21 28. I have found two instances of illegal entry on the part of the L.. In Wrona v. Toronto Community Housing Corporation, 2007 CanLII 3228, the Divisional Court granted the T. an abatement of $1,000.00 F. a single illegal entry which was well in excess of 100% of the monthly rent charged. 2023 ONLTB 25687 (CanLII) 29. The Divisional Court’s decision is binding on the Board so it must be taken into account when the Board crafts a remedy F. a similar breach to the one that existed in that case. The facts in Wrona are not substantially similar to the facts here. In Wrona, there was a single illegal entry where notice had been served but the content of the notice failed to meet the requirements of the Act. In Wrona the Divisional Court found that an abatement of $1,000.00 was an appropriate remedy. In Wrona, however, there had been at least one previous application brought to the Board by the T. about the same issue. In other words, there was a history of dispute between the parties about what constituted a legal entry. Here there was no prior application between the parties so there was no such history. 30. In considering the totality of the circumstances, including the nature of the illegal entry A. the distinguishable facts from the Divisional Court decision in Wrona, I find a rent abatement of $500 F. each instance to be appropriate F. a total of $1,000.00. 31. I have also found the T. being without a functioning bathroom F. two days amounted to substantial interference with her reasonable enjoyment of the rental unit. The daily amount of rent is $49.32. I arrive at this number by multiplying the monthly rent of $1,500.00 by 12 months A. then diving that total by 365 days. 32. I find a functioning bathroom to be a basic necessity when it comes to rental housing. The L. offered the T. no alternatives. Having to use a bucket A. being unable to wash oneself is a clear hardship A. I will O. two days of abatement at 100% F. a total of $98.64. 33. As the remainder of the remedies sought by the T. were related to the unsuccessful portion of her application, they were not considered. It is ordered that: 1. The L. shall pay to the T. the amount of $1,098.64. This amount represents the rent abatement F. the illegal entries A. the loss of use of the bathroom F. two days. 2. The L. shall also pay $48.00 to the T. F. the cost of filing the application. 3. The total amount owing to the T. by the L. is $1,146.64 4. If the L. does not pay the T. the full amount owing on or before April 2, 2023, the L. will start to owe interest. This will be simple interest calculated from April 3, 2023 at 5.00% annually on the balance outstanding. O. Page: 7 of 8  File Number: LTB-T-002465-21 March 22, 2023 ____________________________ 2023 ONLTB 25687 (CanLII) Date Issued John Cashmore Member, L. A. T. Board 15 Grosvenor St, 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: 8 of 8