LTB Order LTB-T-002732-22

O. under Section 31 Residential Tenancies Act, 2006 Citation: M. v M., 2023 ONLTB 33406 2023 ONLTB 33406 (CanLII) Date: 2023-05-29 File Number: LTB-T-002732-22 In the matter of: BASEMENT, 93 JEFFCOAT DR ETOBICOKE ON M9W 3B9 Between: T. K. M. A. C. M. L. K. M. (the 'T.') A. F. an O. D. T. C. M. (the 'L.') harassed, obstructed, coerced, threatened or interfered with the T.. The T. also A. F. an O. D. T. the L. failed to meet the L.'s maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards. This application was heard by videoconference on March 21, 2023. The T., the L., the L.’s Representative, Joseph Kazubek, A. the L.’s Witness, Patricia Anderson, attended the hearing. Determinations: 1. The T. has A. F. an O. D. T. the L. harassed the T. by verbally abusing the T. on November 25, 2021, A. by filing two notices of termination to the T. in retribution F. ongoing plumbing issues. (T2 Application) 2. The T. is also seeking an O. D. T. the L. breached section 20(1) of the Act by failing to repair a plumbing issue in a timely manner. (T6 Application) Background O. Page 1 of 9  File Number: LTB-T-002732-22 3. The rental unit is a basement unit in a house. The L. A. his family live on the main floor of the rental complex. The tenancy began on October 1, 2014. The rent at the time the applications were filed was $1,183.68/month. 4. The Tenancy terminated January 28, 2022. The T. testified T. she moved out of 2023 ONLTB 33406 (CanLII) the rental unit pursuant to an N12 T. had been served to the T. in 2021. 5. The T. filed the applications with the Board on January 24, 2022. 6. The rental unit is a basement unit in a house. The L. occupies the main floor of the house. T6 Application T.’s evidence 7. The T. testified T. prior to May 28, 2021, she had been experiencing slow drainage in her sinks A. bathtub. The T. stated T. she had notified the L. of the slow drains, but nothing was done. 8. On May 28, 2021, sewage began backing up the bathtub drain A. the toilet as well as a floor drain in the furnace room. The sewage overflowed the bathtub A. the toilet. The T. stated T. she had to clean the sewage herself. 9. The issue was reported to the L. A. the L. had a plumber come to the unit A. clear the drain with a drain auger later T. same day. 10. The drains in the unit once again backed up A. overflowed on July 8, 2021. The T. discovered raw sewage in her bathtub A. overflowing her toilet. The T. attempted to plunge the toilet, but it did not fix the problem. The T. was unable to clean because she had no place to empty the pails of cleaning water A. sewage since the drains were not functioning. When she informed the L. of the problem, the L. initially stated T. he could have a plumber attend to the unit on July 12, 2021, however when the T. stated her dissatisfaction of T. response, the L. hired a plumber to attend on July 9, 2021. 11. The T. testified T. the drain backed up several other times: July 22, October 14, October 24, October 27, October 28, A. from November 1 to 3, 2021. F. each of those instances, the L. only hired a plumber to come clear the drain with a drain auger, which proved to be only a temporary solution. 12. The T. was told by one of the plumbers on July 22, 2021, T. there was an obstruction in the drain, likely a tree root, T. would require extensive repair to properly fix. The T. stated T. this information was communicated with her on the other dates when a plumber was required to attend to the unit. The L. acknowledged T. as of October 29, 2021, tree roots were confirmed to be growing through the clay drain A. T. was the main issue regarding the clogged drain. O. Page 2 of 9  File Number: LTB-T-002732-22 13. The T. testified T. with no working drain, she could not reside in the rental unit from November 1 to November 3, 2021, because the L. was unable to get a plumber in to repair the drain until November 3, 2021. 14. The T. stated T. another drain back up occurred on November 22, 2021, however 2023 ONLTB 33406 (CanLII) this time the L. refused to have a plumber come to the unit because the drain was to be permanently fixed on November 30, 2021. 15. The T. stated T. from November 30 to December 2, 2021, she was unable to use her rental unit because the drains were not functional due to the repairs being made to the drain. 16. The T. testified T. due to the drain issues T. occurred over the 6-month period, she was unable to use her rental unit F. 14 days. During these times, the T. stayed with family. 17. The T. also expended time cleaning up after the sewage overflow, A. in the process having items such as towels, carpets A. a bathmat ruined by the sewage. L.’s evidence 18. The L. did not contest any of the T.’s evidence regarding either the dates T. floods or backups occurred or the reason F. the flooding. The L. did testify T. he was diligent in responding to the T.’s complaints about the sewage backups. 19. The L. testified T. the blockage was in part, caused by the tree roots growing through the clay drainpipe. However, there was also a calcium build-up around the area where the drain from the property enters the municipal sewer system T. played a part in restricting the flow of sewage from the L.’s property into the municipal system. 20. The L. stated T. in late October 2021 he received two quotes to fix the drain/tree root issue: one from Enercare F. $27,000.00 which would permanently fix the issue, A. one from Super Rooter F. $3,100.00 which would only temporarily fix the issue. No other estimates were submitted as evidence. Analysis 21. Section 20(1) of the Act states: A L. is responsible F. providing A. maintaining a residential complex, including the rental units in it, in a good state of repair A. fit F. habitation A. F. complying with health, safety, housing A. maintenance standards. 22. In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, the Court of Appeal held T. the LTB should take a contextual approach A. consider the entirety of the factual situation in D. whether there was a breach of the L.’s maintenance obligations, including whether the L. responded to the maintenance issue O. Page 3 of 9  File Number: LTB-T-002732-22 reasonably in the circumstances. The court rejected the submission T. a L. is automatically in breach of its maintenance obligation as soon as an interruption in service occurs. In this case, this issue is whether the L. responded reasonably when the drain back-up/flooding was first reported to him A. if he then properly addressed the problem in a timely A. reasonable manner. 2023 ONLTB 33406 (CanLII) 23. “Latent defect” is described by the Dictionary of Canadian Law (third edition) to be “One not discoverable on casual inspection A. not observable; A defect which a reasonably careful inspection will not reveal…” The issue here is whether the initial flood T. occurred on May 28, 2021 was the result of a latent defect which could not have been reasonably discovered by the L. prior to flood. 24. Pursuant to McQuestion v. Schneider, 1975 CanLII 764 (ON CA), [1975] O.J. No. 2279 (C.A.), a L. is not liable F. the damage caused by an incident caused by a latent defect. Instead, a L.’s liability arises where the L. fails to take reasonable measures to correct the latent defect, or otherwise minimize the T.’s losses, once the defect becomes apparent. 25. I accept T. the L.’s evidence about the likely cause of the repeated sewage backups A. recognize T. the tree roots growing through the clay drainpipe A. the calcium build-up are circumstances beyond the L.’s control. 26. However, the T. testified T. she had reported issues of a slow drain to the L. prior to the drain backing up on May 28, 2021. The L. did not deny T. this issue was brought to their attention, A. therefore I accept T. the L. had been given reasonable notice prior to May 28, 2021 T. there was a drainage issue to be investigated. No evidence was submitted T. the L. investigated the T.’s complaint at any time prior to May 28, 2021. Had the L. taken the reasonable step of investigating this issue A. responded appropriately it is entirely possible the flood could have been prevented. Therefore, I find T. L. cannot escape liability F. the damage caused by the initial flood on May 28, 2021 based on the “latent defect” principle. 27. I also find T. after the first flooding event occurred on May 28, 2021, the L. did not adequately address the problem, which resulted in additional flooding incidents. After each of the many sewage back-ups the L.’s response was to have a plumber clear the drain with a drain auger. Although this would temporarily restore function of the drain, it would not resolve the underlying problems causing the repeated flooding. 28. Pursuant to section 20(1) of the Act, a L. is responsible F. maintaining a rental unit in a good state of repair A. keeping it “fit F. habitation”. This means T. any repairs a L. undertakes must not just be done in a timely manner but must also be effective addressing the cause of the problem. The L. did not submit any evidence T. he had sought to fix the underlying cause of the problem until it was investigated at the L.’s behest on October 28, 2021, A. then did not proceed with the actual repairs until November 28, 2021. O. Page 4 of 9  File Number: LTB-T-002732-22 29. The T. testified T. the plumber who cleared the drain on July 22, 2021, gave her an assessment T. there was a blockage, likely by a tree root, further down the drain. The L. did not submit any evidence to counter this claim, such as deny T. the plumber had given them this information. 2023 ONLTB 33406 (CanLII) 30. I find T., on a balance of probabilities, a plumber would have relayed T. same information to the L., especially since the L. is the one employing the services of the plumber. At the point T. the L. was informed T. the roots were blocking the drain, it became the L.’s responsibility to further investigate the plumber’s assessment A. act on it accordingly. However, the L.’s actions show T. he preferred to use temporary remedies to deal with the flooding issue until the flooding issues became more frequent in the fall of 2021. 31. Therefore, I find T. F. every flooding incident T. occurred after July 22, 2021, the L. breached section 20(1) of the Act because he failed to employ effective maintenance to address the problem. 32. No evidence was presented at the hearing T. would suggest T. the L. was made aware of any potential drainage issues, such as tree roots, prior to July 22, 2021. I find T. it would have been reasonable F. the L. to believe T. the drain clearing completed by the plumber on May 28, 2021, would have resolved the issue. Therefore, find T. the one flood T. occurred on July 22, 2021, was not a breach of section 20(1) of the Act. 33. The T. testified T. she cleaned up her unit after each flooding event, A. not the L.. Since the T. was not at fault F. any of the flooding, it was the L.’s responsibility F. the clean up of the rental unit after the flooding events. The L. failed to initiate the clean up in a reasonable amount of time or compensate the T. F. her work in cleaning up her unit after the flooding, which constitutes a further breach of section 20(1) of the Act. 34. The T. also stated T. due to the flooding T. she was unable to use her rental unit from November 1 to November 3, 2021, because of the L.’s delay in having the drain cleared. At the hearing, the L. did not give any evidence F. why it took over three days to at least have the drain cleared again with the drain auger to, at very least, have functionality of the drain restored. I find this delay to be unreasonable, A. therefore a breach of section 20(1) of the Act. 35. From November 22, 2021, to December 2, 2021, the L. was aware of another drain clog. The T. testified T. after having reported the clog to the L. on November 22, 2021, the L. refused to send a plumber to clear the drain because the drain was scheduled to be permanently fixed on November 29, 2021. This means T. during T. whole week, the T. did not have a functioning drain A. was unable to use her rental unit. Furthermore, the repairs were not completed until December 2, 2021. 36. I find T. a reasonable L. would have employed the temporary solution of having a plumber clear the drain again with an auger on November 22, 2201, so T. use of the O. Page 5 of 9  File Number: LTB-T-002732-22 rental unit could be restored, however, the L. chose not to go this route. Therefore, I find the L. breached section 20(1) of the Act by failing to address the drainage issue on November 22, 2021. Remedies 2023 ONLTB 33406 (CanLII) 37. The T. is seeking the following remedies on the T6 application: a) Rent abatement of $8,285.76 (rent was $1,183.68/month) a. Six months of 100% rent abatement b. One month F. pain A. suffering b) Rent differential of one year $916.32 per month or $10,995.84. 38. The T. stated she was unable to use her unit as a whole due to the failure of the drains to work properly F. a period of 14 days. The failure of the drains A. resulting flooding would render the unit unlivable. The T. would not be able to use a sink, washroom or any other part of her unit T. required drainage. Based on the testimony before me, I find T. a 100% rent abatement F. those 14 days, or $544.82 is fair in these circumstances. 39. I also find T. on the other days where the T. did not vacate the unit, the T. shall be awarded a lump sum of $2,500.00. This takes into the consideration the lack of functionality of the drains T. the T. dealt with throughout the tenancy T. did not require the T. to vacate the unit. This award also considers the time taken by the T. to clean her unit after the flooding, despite it being the L.’s responsibility to do so. 40. Pursuant to section 30(1) of the Act, the Board may make an award T. the Board deems fit. Although general damages are not a listed remedy on a T6 application, I find T. the T.’s remedy of one month of rent due to stress A. undue hardship caused by the L.’s breach of section 20(1) of the Act are reasonable under these circumstances. Therefore, I find T. the T. shall be also awarded $1,183.68 in general damages. 41. Although, an award F. rent differential is not generally awarded based on a T6 application, the T. did not make any submissions regarding the rental unit she moved to after this tenancy terminated. Therefore, a remedy F. rent differential is denied. T2 Application Testimony- November 25, 2021 42. The T. testified T. on November 25, 2021, the L. had a plumber come into the unit to replace a toilet. When the plumber entered the unit, the L.’s mother, Patricia Anderson (PA), entered as well. O. Page 6 of 9  File Number: LTB-T-002732-22 43. The T.’s claim is T. the L.’s mother had no reason or right to be present, since the notice given to the T. F. entry did not address her entry into the unit with the plumber. 44. The T. stated T. PA entered the unit without her consent. She also stated T. she 2023 ONLTB 33406 (CanLII) did not observe the plumber give consent to PA to enter the unit. 45. The T. stated T. PA entered the unit A. flushed the toilet repeatedly despite being told not to by the plumber. The T. then stated T. PA became hostile towards both her A. the plumber. The T. accused PA of raising her voice at her A. blaming her F. the flooding/drainage issues. 46. The T. stated T. at one point both she A. the plumber told her to leave, however as PA left, she continued to holler at both the T. A. the plumber. 47. PA’s testimony gave a different perspective. PA stated T. she was surprised at the T.’s allegations because she thought she had been respectful of both the T. A. the plumber in the unit. 48. PA testified T. she had called down to the unit A. asked if she could come in , A. T. the T. gave her permission to enter. 49. Regarding the toilet bowl, PA observed T. the toilet bowl had bubbling water in the bowl itself (symptom of poor drainage) A. PA had brought it to the attention to the plumber T. this was occurring. 50. PA testified T. the only time it became tense in the T.’s apartment was when she had pointed out the bubbling, A. the plumber asked her, “Are you a plumber?”. 51. PA stated T. her interactions with the T. were cordial A. even friendly throughout the whole event. 52. The T. did not challenge PA’s testimony, despite the many contradictions of the recollection of the event between the two parties. Analysis- November 25, 2021 53. Pursuant to section 23 of the Act, a L. shall not harass, coerce or threaten a T.. The term harassment is not defined in the Act, however, Board Interpretation Guideline 6, T. Rights, provides a summary of the Board’s jurisprudence A. indicates T. the Board has often adopted the following or similar definitions: “engaging in a course of vexatious comment or conduct T. is known or ought reasonably to be known to be unwelcome.” 54. The testimony given by the T. A. PA regarding the event on November 25th is very different. However, when PA’s testimony clearly contradicted the T.’s testimony, the T. did not challenge the credibility or reliability of PA’s evidence. Based on the lack O. Page 7 of 9  File Number: LTB-T-002732-22 of any challenges to PA’s evidence, I can only assume T. the T. did not find any fault with the testimony. 55. The onus is on the T. to prove these allegations on the balance of probabilities. The Board has heard two submissions of evidence T. tell of the same incident (plumber changing 2023 ONLTB 33406 (CanLII) a toilet) but are vastly different in comparison to how the events unfolded on November 25 th. Since the onus is on the T., I would have needed more evidence, such as the witness account from the plumber, to tip the scales in the T.’s favour. In the end, this has become one person’s word against another’s. Therefore, based on the evidence before me, I am not satisfied T. PA either entered the rental unit illegally, or harassed the T. on November 25, 2021. Service of N5 A. N12 & Reprisal 56. The T. alleged T. the L. served two notices, an N5 A. an N12, in retribution F. her complaints about the drainage issue. 57. The T. had testified T. she had moved out of the rental unit pursuant to the N12 served to her in December 2021, however, she believed T. she was served it because she had complained about the drainage issues. 58. The L. testified T. the N12 was served because the L. wanted to take over the rental unit F. his, A. his family’s own use. This would make the L. A. his family the sole occupiers of the rental complex. 59. The L. testified T. there have been no other tenants in his house since the T. vacated the unit. 60. The issue of good faith of the N12 is generally challenged at the L2 hearing pursuant to the N12 served, or by filing a T5 application with the Board. However, here the T. is arguing T. the N12 was served based solely on retribution F. getting the L. to deal with the drainage issue. 61. I find T. any association between the drainage issues A. the issue of the N12 to be coincidence A. any accusations of retribution to be based on speculation. 62. The T. had stated T. she had been served an N5 F. the drainage issues, having been accused by the L. of flushing objects down the drain T. she was not supposed to be flushing down. The N5 demanded T. she pay F. damages of $3,726.74 F. the repair of the drain or T. she would be evicted after 14 days. 63. The L. presented photos from the plumber showing T. the drain had been cleared of feminine hygiene products. However, under further examination, the L. admitted T. T. this clog was not in the T.’s drain system, but in the complex’s drain system, a few feet into the stack. This means T. it could also have come from someone else in the complex. O. Page 8 of 9  File Number: LTB-T-002732-22 64. The L. testified T. they believed at the time T. the T. had flushed these items down the drain, but also stated T. they had not proceeded with filing an L2 application to enforce the notice. Although at the time they believed to be justified in serving the T. the notice, they would later realize T. the notice would fail at a hearing. Therefore, they did not file an L2 to enforce the N5 notice. 2023 ONLTB 33406 (CanLII) 65. I find T. the N5 was served in a reaction to a clog found in their drain T. they, at the time, believed to be caused by the T.’s actions. Although, based on the evidence before me, this would have been an ill-advised notice to give the T. A. would likely have failed if brought before the Board, there is no evidence before me T. the N5 was served F. an improper purpose such as to harass the T.. 66. I find T. the T. has not met the burden of proof required F. me to find T. the service of the N5 A. N12 meet the definition of harassment. Therefore, this claim, A. the whole of the T2 application, is dismissed. It is ordered T.: 1. The tenancy between the L. A. the T. terminated January 28, 2022. 2. The total amount the L. shall pay the T. is $4,276.50. This amount represents: • $3,044.82 F. a rent abatement. • $1,183.68 in general damages. • $48.00 F. the cost of filing the application. 3. The L. shall pay the T. the full amount owing by June 9. 2023. 4. If the L. does not pay the T. the full amount owing by June 9, 2023, the L. will owe interest. This will be simple interest calculated from June 10, 2023, at 6.00% annually on the balance outstanding. 5. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. 6. The T.’s T2 application is dismissed. May 29, 2023 _______________________ Date Issued Robert Brown Member, L. A. T. 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 9 of 9