LTB Order LTB-T-005348-23

O. under Section 30 & 31 Residential Tenancies Act, 2006 2023 ONLTB 50334 (CanLII) Citation: M. v R., 2023 ONLTB 50334 Date: 2023-08-25 File Number: LTB-T-005348-23 In the matter of: 28 BURYS GREEN ROAD FENELON FALLS ON K0M1N0 Tenant Between: C. M. A. L. L. R. C. M. (the 'Tenant') A. F. an O. D. T. L. R. (the 'L.'): • entered the rental unit illegally. • altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys. • substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of their household. • harassed, obstructed, coerced, threatened or interfered with the Tenant. • withheld or interfered with their vital services or care services A. meals in a care home. C. M. (the 'Tenant') also A. F. an O. D. T. L. R. (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. These applications were heard together A. shall be combined F. the purpose of this O.. These applications were heard by videoconference on May 17, 2023. The Tenant’s legal representative, Alishia Barber, A. the Tenant attended the hearing. O. Page 1 of 14  File Number: LTB-T-005348-23 Determinations: 1. The rental unit is a detached, 3 bedroom, main floor, upper A. basement layout. The Tenant is renting the entire house as the rental unit. 2. The tenancy began on March 1, 2022. 2023 ONLTB 50334 (CanLII) 3. As of the day of the hearing the Tenant was still residing in the rental unit. 4. The Tenant filed a T2 application with the Board on January 23, 2023 A. alleges the L.: • Illegally entered the rental unit • Harassed the Tenant • Withheld vital services • Changed the locks to the rental unit • Substantially interfered with the Tenant’s reasonable enjoyment 5. The Tenant filed a T6 application with the Board on January 23, 2023 A. alleges the L.: • Failed to meet the Landlords' maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards. T2 APPLICATION Illegal Entry 6. The Tenant testified T. on December 5, 2022 the L. kicked in the main door of the rental unit. 7. The Tenant supports her claims with her uncontested evidence submitted to the Board in the form of photos showing the broken door frame A. handle. The Tenant testified the L. did not fix the door until March 2, 2023, during which time the door was in disrepair, the Tenant could not lock her door A. had to barricade the door from the inside in O. to keep it from remaining open. O. Page 2 of 14  File Number: LTB-T-005348-23 The Act A. Analysis 8. Section 26 of the Act states: Entry without notice, emergency, consent 2023 ONLTB 50334 (CanLII) 26 (1) A L. may enter a rental unit at any time without written notice, (a) in cases of emergency; or (b) if the tenant consents to the entry at the time of entry. 9. On a balance of probabilities, I find T. the L. is in breach of the Act A. illegally entered the Tenant’s rental unit. In addition to the Tenant’s uncontested testimony I find the Tenant’s evidence submissions of the police reports substantiates her claims. The Tenant is entitled to a remedy, which will be addressed in the remedies section of this O. below. L. Changed the Locks 10. The Tenant testified the L. changed the locks on several occasions in an attempt to evict her form the rental unit. The Tenant testified T. on October 12, 2022 the L. changed the locks A. did not provide the Tenant a new key. 11. To support her claim the Tenant submitted into evidence a police report T. was filed by the Tenant when the L. changed the locks. The OPP attended the rental unit A. confirmed the Tenant did not have access to the rental unit. Police advised the Tenant they instructed the L. to give access A. a key to the rental unit to the Tenant. The Act A. Analysis 12. Section 24 of the Act states: Changing locks 24 A L. shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys. O. Page 3 of 14  File Number: LTB-T-005348-23 13. On a balance of probabilities, I find T. the L. is in breach of the Act A. illegally entered the Tenant’s rental unit. In addition to the Tenant’s uncontested testimony I find the Tenant’s evidence submissions of the police reports substantiates her claims. The Tenant is entitled to a remedy, which will be addressed in the remedies section of this O. below. 2023 ONLTB 50334 (CanLII) Harassment 14. The Tenant testified on August 26, 2022 she called the police to file a complaint the L. was continually around her property A. peering in windows. Although the L. lived in a unit at the rear of the property, the Tenant claims she told the L. he was not welcome at the rental unit. A police report was filed with details of the Tenant’s claims. 15. The Tenant testified on March 1, 2022 the L. was on her property in his workshop. The L. was caught peering in the Tenant’s rental unit windows A. the Tenant had to close the curtains. 16. The Tenant testified on November 4, 2022 the L. made threats T. he was going to remove items from the Tenant’s rental unit. Police were called A. attended the rental unit. 17. There are several other police reports filed from the Tenant calling the police reporting the harassment by the L.. The last police report filed March 3, 2023, claims the L. is intercepting delivery trucks delivering items to the Tenant A. the L. is taking packages T. belong to her. The report also identifies the Tenant’s claim T. the L. is attending the rental unit A. taking her mail A. withholding it from the Tenant. 18. The Tenant supports her claim with uncontested documentary evidence submitted in the form of the police reports T. were filed on the above days. In the multiple police reports, police state they informed the L. T. he is to stop harassing the Tenant however, as the Tenant continued to file multiple complaints with the police, the L. did not cease his behaviour. 19. The Tenant claims the harassment is ongoing as of the day of the hearing. The Act A. Analysis 20. Section 23 of the Act states: L. not to harass, etc. O. Page 4 of 14  File Number: LTB-T-005348-23 23 A L. shall not harass, obstruct, coerce, threaten or interfere with a tenant. 21. The Ontario Human Rights Code defines "harassment" as: engaging in a course of vexatious comment or conduct T. is known or ought reasonably to be known to be unwelcome. 2023 ONLTB 50334 (CanLII) 22. On a balance of probabilities, I find T. the L. is in breach of the Act A. harassed the Tenant. In addition to the Tenant’s uncontested testimony I find the Tenant’s evidence submissions of the police reports substantiates her claims, however I make note T. in the Tenant’s statements she provides the police, the Tenant’s claims are not specific to dates or details where she claims the L. intercepted delivery trucks or taking her mail. Further, there is conflicting submissions to the police of whether the Tenant gave permission to the L. to be on the property, then later states in the police report T. does not want him on the property. While I find the Tenant’s testimony credible, the lack of particulars A. specific details will be considered in my decision F. remedy. 23. The Tenant is entitled to a remedy, which will be addressed in the remedies section of this O. below. L. Withheld Vital Services Water A. Electricity 24. The Tenant testified T. she was without water running water, or the water supply was extremely reduced on several occasions between March 1, 2022 A. December 2022. 25. The Tenant submitted uncontested evidence in the form of a text she sent to the L. on September 1, 2022 where she notifies the L. she has been without water F. a few days. 26. During the Tenant’s uncontested testimony she was unable to provide specific details or dates regarding issues with the water supply from March 1, 2022 up to the first text she sent the L. on September 1, 2022. 27. The Tenant testified T. she was without water from December 24, 2022 to sometime around mid May 2023. The Tenant testified the water supply to the rental unit was sourced from a nearby creek. The house had a water filtration system T. purified the water T. was malfunctioning A. a warning beep A. light was triggered. The Tenant testified she texted the L. about the noise, A. the L. said he would send his son to the rental unit to investigate. The Tenant testified the L.’s son, Adam, attended the rental unit A. told her the issue was fixed. O. Page 5 of 14  File Number: LTB-T-005348-23 28. The Tenant submitted the text messages as evidence to support her testimony T. she informed the L. about the warning noise. 29. The Tenant testified T. she later learned T. when Adam attended the rental unit in December 2022, he had turned the water filtration system off in O. to stop the warning 2023 ONLTB 50334 (CanLII) noise. Unaware the filtration system was turned off the Tenant continued to use the water F. herself, her new born child A. her pets from December 2022. The Tenant testified T. she, her child A. her pets got sick from the unpurified water. 30. Sometime around April 2023 the Tenant went to investigate the filtration system herself A. discovered it was unplugged by Adam, to stop the warning sound back in December 2022. The Tenant submitted uncontested evidence in the form of photos of the water filtration unit with an error code T. indicated the UV lamp needed to be replaced which was the source of the warning noise, A. instead of replacing the UV lamp, Adam turned the unit off. 31. During the time the Tenant was without water the Tenant was going to friend’s house approximately 20 minutes away, to use the bathroom in O. to bathe her baby. The Tenant would occasionally boil water at the rental unit, in O. to bathe her child in the sink when she could not go to her friend’s. 32. The Tenant testified the L. shut off the power to the house A. the Tenant did not have access to the breaker box as the L. had locked the basement. 33. The Tenant claimed she left her rental unit on April 29, 2023 to go grocery shopping . Upon her return, she discovered the power was shut off to the rental unit. The Tenant testified the L. had locked the basement access to the main power panel. 34. The Tenant called police, but the police did not attend. The police called the L. A. instructed him to turn the power back on. The Tenant testified the L. did not attend the rental unit to turn the power on, A. the Tenant left to go stay at a friend’s cottage. 35. The Tenant returns back to the rental unit on May 7, 2023 A. discovers the rental unit basement door is unlocked A. the Tenant has access to the basement A. is able to turn the power to the rental unit back on. 36. The Act A. Analysis: Interpretation 2 (1) In this Act,… “vital service” means hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat. O. Page 6 of 14  File Number: LTB-T-005348-23 37. On a balance of probabilities, I find T. the L. is in breach of withholding vital services in the form of water A. electricity from the Tenant. In addition to the Tenant’s uncontested testimony I find the Tenant’s evidence submissions of the police reports 2023 ONLTB 50334 (CanLII) substantiates her claims. The Tenant is entitled to a remedy, which will be addressed in the remedies section of this O. below. Substantial Interference 38. The Tenant testified T. she was away from the rental unit F. a few days at a friend’s cottage. She returned to the rental unit on May 3, 2023 A. discovered the L. was removing the Tenant’s personal items form the rental unit. The Tenant called the Tenant’s legal representative, A. the police. The police attended the rental unit A. instructed the L. to stop removing the Tenant’s items from the rental unit. The Tenant was left to put the items back in the rental unit herself. 39. Before leaving the rental unit, the police instructed the L. to stay away from the rental unit, A. the Tenant. When police leave the Tenant returns back to her friend’s cottage F. the remainder of the week. 40. The Tenant testified T. on January 23, 2023 the L. removed firewood from the residential property. The Tenant required the wood to heat the fireplace in the rental unit. The Tenant had to purchase space heaters in O. to keep the rental unit warm. 41. To support her claim the Tenant submitted uncontested documentary evidence in the form of a police report T. confirmed the L. had taken the wood A. sold the wood to another person. 42. The Tenant testified T. issues are ongoing as of the day of the hearing. The Act A. Analysis: 43. Section 22 of the Act states: L. not to interfere with reasonable enjoyment 22 A L. shall not at any time during a tenant’s occupancy of a rental unit A. before the day on which an O. evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex O. Page 7 of 14  File Number: LTB-T-005348-23 in which it is located F. all usual purposes by a tenant or members of his or her household. 44. On a balance of probabilities, I find T. the L. is in breach of the Act A. substantially interfered with the reasonable enjoyment of the Tenant’s rental unit by 2023 ONLTB 50334 (CanLII) removing some of the Tenant’s items from the rental unit in her absence A. without her permission. In addition to the Tenant’s uncontested testimony I find the Tenant’s evidence submissions of the police reports substantiates her claims. 45. I also considered the frequency ,A. the numerous times the Tenant has had to call police in O. to try A. stop the L.’s behaviour. The Tenant is entitled to a remedy, which will be addressed in the remedies section of this O. below. T6 APPLICATION 46. The following claims in the Tenant’s T6 application are identified in the Tenant’s T2 application above. These issues are: • Disrepair of the water filtration system • Broken door lock 47. The Tenant’s evidence F. the above claims were addressed in the T2 application section of this O.. 48. The Act A. Analysis: Section 20 of the Act holds the L. responsible F. providing A. maintaining the rental unit in a good state of repair. This applies even if the tenant was aware of the state of non-repair before the tenancy started: 20 (1) 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. 2006, c. 17, s. 20 (1). (2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement. 2006, c. 17, s. 20 (2). O. Page 8 of 14  File Number: LTB-T-005348-23 49. In Onyskiw v. CJ, M Property Management, 2016 ONCA 477 (CanLII), the Court of Appeal held T. the Board ought to apply a contextual approach in D. whether a L. has breached its maintenance obligations under the Act. A L. will not be responsible F. breaching its obligations if, after considering all of the circumstances, it is found T. the L. addressed the maintenance issues in a reasonable manner. 2023 ONLTB 50334 (CanLII) 50. I must also apply subsection 30(2) of the Act, A. consider whether the tenant, or former tenant, advised the L. of the alleged breaches before applying to the Board, A. also the parties’ duty to mitigate found in section 16 of the Act. Section 16 of the Act requires T. a tenant or L. must take steps to mitigate loss. Section 16 of the Act reads as follows: When a L. or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses. 51. Based on the uncontested evidence submitted under the Tenant’s T2 application F. the disrepair of the water filtration system A. the broken door lock, A. on a balance of probabilities, I find 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. The Tenant is entitled to a remedy, which will be addressed in the remedies section of this O. below. REMEDIES 24. The Tenant is seeking an abatement of rent F. the broken door, A. an abatement of rent F. the disrepair of the water filtration system, A. O. requiring the L. to fix the water filtration system. 25. An abatement is a contractual remedy. It recognises the idea T. a tenant is paying rent F. a bundle of goods A. services A. if the tenant is not receiving everything being paid F. then he is entitled to abatement proportional to the difference between what is being paid F. A. what is being received. There is no guidance in the Act to assist the Member in D. the amount of an abatement of rent. The Board’s Interpretation Guideline 5 provides some guidance on rent abatement. In D. the amount to be ordered, the Member will consider the period of time T. the problem existed A. the severity of the problem in terms of its effect on the tenant. The test should be the impact on the average tenant or the impact a reasonable person would expect this problem to have had on a tenant. O. Page 9 of 14  File Number: LTB-T-005348-23 26. The Tenant’s legal representative submitted a “Rent Abatement” chart F. the remedies the Tenant is seeking based on the Tenant’s claims in her application. The Tenant’s legal representative is relying on this submission as her request F. remedies F. the Board’s consideration. I make note T. some of the remedies the Tenant’s legal representative submitted are not eligible F. my consideration A. the reasons are provided below. 2023 ONLTB 50334 (CanLII) REMEIDIES NOT ELIGIBLE Illegally entered the rental unit 27. While I find the L. is in breach of entering the Tenant’s rental unit illegally, the Tenant’s legal representative failed to provide the Board with a request F. a remedy in the chart, or provide submissions with respect to a requested remedy regarding the Tenant’s claim in the application, A. therefore I am unable to grant any remedy F. the L.’s breach. Lack of Heat / Fire Wood Heating 28. The Tenant made a request in the application F. a remedy claimed F. no heat in the rental unit from January 6, 2023 up to the date of the hearing. The Tenant failed to provide sufficient testimony or evidence to support this. The lack of particulars A. specific details to the Tenant’s claim are such T. I am not satisfied the Tenant has met the burden to support her claim A. therefore this remedy will not be granted. O. Page 10 of 14  File Number: LTB-T-005348-23 Stalking 29. The Tenant made a request in her application F. a remedy claimed F. stalking. Although the Tenant is making a claim specific to this behaviour by the L., the Tenant failed to provide sufficient testimony or evidence to support this. The lack of particulars A. specific 2023 ONLTB 50334 (CanLII) details to the Tenant’s claim are such T. I am not satisfied the Tenant has met the burden to support this specific claim A. therefore this remedy will not be granted. T2 APPLICATION Harassed the Tenant 30. The Tenant is requesting a rent abatement of 20% from March 1, 2022 up to the day of the hearing. I do not find the Tenant’s request reasonable given the Tenant’s evidence submissions. While I accept the Tenant’s evidence of multiple police reports, there are conflicting details in the Tenant’s own submissions regarding her police reports where the Tenant provides police with different details. I also accept the Tenant’s credible testimony T. the harassment is ongoing up to the day of the hearing. The rent abatement granted to the Tenant is in the amount of $1,540.00 (14 months x $1,100.00 x 10%). Withheld Vital Services 31. The Tenant is requesting a rent abatement of 25% from March 1, 2022 up to the day of the hearing. I find T. the Tenant’s request not reasonable given the Tenant’s evidence submissions regarding the water issues indicate the Tenant put the L. on notice as of September 1, 2022. In my view the Tenant did not provide evidence to support she had notified the L. prior to her text she submitted into evidence. I accept the Tenant’s testimony T. the issues are ongoing as of the day of the hearing, but I am only considering the period form September 1, 2022 up to the day of the hearing. The rent abatement granted to the Tenant is in the amount of $2,475.00 (9 months x $1,100.00 x 25%). L. Changed the Locks 32. The Tenant is requesting a rent abatement of 20% from October 1, 2022 up to December O. Page 11 of 14  File Number: LTB-T-005348-23 5, 2022. I do not find T. the Tenant’s request reasonable given the Tenant’s evidence submissions regarding her own evidence of the police report. The Tenant failed to provide evidence she was without a key from Octo 12, 2022 up to December 5, 2022 requested in the remedy. I find the Tenant is entitled to an abatement of compensation F. one day F. being locked out after the L. changed the locks. The rent abatement granted is 2023 ONLTB 50334 (CanLII) $165.00 (15%x $1,100.00). Substantially Interference with Reasonable Enjoyment 33. The Tenant is requesting a rent abatement of 25% from March 1, 2022 up to the day of the hearing. I do not find T. the Tenant’s request reasonable. While I accept the Tenant has submitted police reports she filed, as evidence of the L.’s substantial interference, as previously stated there is a lack of particulars A. specific details, to the Tenant’s allegations. Nonetheless, I find the Tenant credible with her testimony A. considered the frequency A. the number of times the Tenant has had to call the police. Given all the above, I am of the opinion the more reasonable amount is 10%. The rent abatement granted to the Tenant is in the amount of $1,540.00 (14 months x $1,100.00 x 10%). T6 APPLICATION Water Filtration System 34. The Tenant is requesting a rent abatement of $2,200.00 F. the disrepair of the water filtration system, T. the Tenant claims made her A. her young child sick. I find the Tenant’s request reasonable given the severity of the potential F. drinking unfiltered A. / or contaminated water T. was sourced from a nearby creek. In my view, the negligence on the part of the L. by turning off the filtration system to stop the warning mechanism to replace the UV light rises to the level F. me to grant the full amount the Tenant is seeking. The rent abatement of $2,200.00 is granted. Broken Front Door 35. The Tenant is requesting a rent abatement of $660.00 November 1, 2022 to February 23, 2023. I find T. the Tenant’s request reasonable given the Tenant’s photo evidence submissions supporting her claim the L. kicked in the door A. broke the door O. Page 12 of 14  File Number: LTB-T-005348-23 handle mechanism. Its clear from the photo the door is in disrepair. The Tenant’s request F. $660.00 is granted. 36. I have considered all of the evidence presented at the hearing A. all of the oral testimony A. although I may not have referred to each piece of evidence individually or referenced 2023 ONLTB 50334 (CanLII) all of the testimony, I have considered it when making my determinations. 37. This O. contains all reasons F. the determinations A. O. made. No further reasons will be issued. It is ordered T.: 1. By no later than August 31, 2023, the L. shall repair the water filtration system in the rental unit by: a) Retain the services of a water treatment professional to inspect A. repair the water filtration system. b) Carry out the work in accordance with the professional’s repair plan. c) Provide the Tenant with a report confirming T. the water being delivered through the water filtration system is safe to drink A. falls within municipal acceptance standards. 2. By no later than August 31, 2023 the L. shall ensure the Tenant has running water throughout the entire rental unit. 3. If repairs are required the L. shall: a) Retain the services of a plumbing expert to inspect the rental unit pipes A. water delivery system A. prepare a repair plan. b) Carry out the work required to fix the running water in the rental unit. 4. The L. shall not increase the rent F. the period the water filtration system is in disrepair A. until the water treatment professional has deemed the water safe to drink. 5. The L. shall not increase the rent F. the period the running water is in disrepair A. a professional has deemed the running water has bee returned to the rental unit. O. Page 13 of 14  File Number: LTB-T-005348-23 6. The L. shall pay to the Tenant a rent abatement of $8,620.00. This amount represents the total rent abatement remedies granted plus the cost of filing the application with the Board. 7. The L. shall pay the Tenant the full amount owing by September 5, 2023. 2023 ONLTB 50334 (CanLII) 8. If the L. does not pay the Tenant the full amount owing by September 5, 2023, the L. will owe interest. This will be simple interest calculated from September 6, 2023 at 6.00% annually on the balance outstanding. 9. If the L. does not pay the Tenant the full amount owing by September 5, 2023, the Tenant may recover this amount by deducting $550.00 from the rent each month from October 1, 2023 to December 1, 2024 A. $370.00 on January 1, 2025. 10. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. August 25, 2023 ____________________________ Date Issued Greg Brocanier Member, L. 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 14 of 14