LTB Order LTB-T-005931-23

O. under Subsection 30 Residential Tenancies Act, 2006 Citation: K. & A. v S. & Xu, 2023 ONLTB 59140 2023 ONLTB 59140 (CanLII) Date: 2023-08-31 File Number: LTB-T-005931-23 In the matter of: 65 PATRICK DR WHITBY ON L1R2L3 Between: I. K. T. O. A. A. Ru K. S. L. Y. Xu I. K. A. O. A. (the 'T.') A. F. an O. D. T. Ru K. S. A. Y. S.(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 May 30, 2023. The T.’s legal representative, Neto Naniwambote, A. the Tenants (IK) A. (OA), attended the hearing. A witness F. the T., Sonny Malik, an employee of Ont Restoration Services, also attended the hearing. Determinations: Preliminary: 1. The T.’s legal representative requested an amendment to the T.’s application. The T.’s legal representative requested the following amendments:  Change the last name of the second named L. from Y. S., to Yuam Xu. O. Page 1 of 9  File Number: LTB-T-005931-23  Change the L.’s mailing address from 65 Patrick Dr. Whitby, ON L1R 2L3(the rental unit address) to 105 Main Street, 2F, Markham, ON L3R 2G1 2. The Board’s Guideline 15 on amending applications requires the requestor to make the amendment request as follows: 2023 ONLTB 59140 (CanLII) a) in writing; b) served with the amended application to all other parties; A. c) filed with LTB with the amended application A. a completed Certificate of Service. 3. Guideline under 15.3 T. states: The request to amend will be decided at the hearing after considering: a) whether the amendment was requested as soon as the need F. it was known; b) any prejudice a party may experience as a result of the amendment; c) whether the amendment is significant enough to warrant any delay T. may be caused by the amendment; d) whether the amendment is necessary A. was requested in good faith; A. e) any other relevant factors. 4. The T.’s legal representative submitted the amendment request pursuant to the Board’s Guidelines in writing in advance of the hearing. As the request is merely a clerical amendment, I see no prejudice to the L. in granting the amendment. 5. The T.’s application is amended in the style of cause to reflect the amendment. T.’s T6 Application 6. The T. submitted the application to the Board on January 18, 2023. 7. The T. moved into the rental unit on August 22, 2022 A. vacated the rental unit December 9, 2022. 8. The rental unit is a detached house, with four bedrooms, on suite master bathroom, A. a second full bathroom on the second floor. The main floor is comprised of a kitchen, living room / dining room, 2 piece bathroom A. laundry. The basement is unfinished. O. Page 2 of 9  File Number: LTB-T-005931-23 9. In the T.’s T6 application the T. claims 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 as a result of the rental unit containing black mold. 2023 ONLTB 59140 (CanLII) 10. Section 20(1) of the Act states as follows: A L. is responsible F. providing A. maintaining a residential complex, incl uding 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. 11. 24. In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, the Court of Appeal F. Ontario rejected the position T. a L. is automatically in breach of its obligation to maintain A. repair under subsection 20(1) as soon as an interruption in service occurs or the unit is in need of repair. The Court addressed the competing approaches taken, in the jurisprudence, to s. 20 maintenance applications A. prefers the contextual approach. While a lease is properly treated as a contract, breach of the terms/duty to maintain/repair will not automatically result in a finding of liability. The Court found T. the reasonableness of a L.'s response A. conduct to the maintenance issue(s) is a factor in deciding breach A./or remedy A. T. this is consistent with the Board's Interpretation Guideline #5. Clearly, Onyskiw represents a departure from the idea of a L.'s strict contractual liability as espoused, in part, by the Divisional Court in Offredi v.751768 Ontario Ltd, 1994 CanLII 11006 (ON SCDC), [1994] O.J. No. 1204 (Div. Ct.). 12. IK testified T. after moving in to the rental unit, a neighbour approached her on August 26, 2022 A. asked if the L. had removed all the mold. IK submits she mentioned to the neighbour she A. OA had been experiencing breathing issues since moving in to the rental unit. 13. The same day IK spoke to the neighbour IK went to the basement to investigate the presence of mold A. found evidence of black mold in the insulation A. on the wood frame. IK texted the L. inquiring as to the mold, A. the L. responded the same day telling IK if she gets someone to get rid of the mold, the L. will reimburse IK F. the costs. 14. On August 28, 2022 the L. calls the T. A. tells the T. T. he will take care of the mold in the basement. 15. To support the T.’s claims, the T. submitted photo evidence of black mold in the basement area of the house specifically, in black mold can be seen on the insulation between the downstairs wall studs A. on the wood studs. 16. IK testified the L. attended the unit on September 8, 2022 to pick up post dated rent cheques, A. went to the basement to address the mold issue. The L. informed the T. there was no mold A. left the rental unit. O. Page 3 of 9  File Number: LTB-T-005931-23 17. On September 10, 2022 IK texted the L. A. informed the L. she was not satisfied the mold issue had been rectified, A. informed the L. she did a home mold air text T. indicated levels of mold in the air of the rental unit. 18. The L. replied to IK the same day A. informs IK he will send some people over to 2023 ONLTB 59140 (CanLII) look at the mold issue A. also states but he has never had an issue with mold in the rental unit before. 19. On September the 10th 2022 the L. texted IK T. he would be coming to the house on September the 12th 2022 with some people to remove the mold. 20. On September 12, 2022 the L. attended the rental unit with a professional mold company envy tenants were instructed to vacate the rental unit F. 12 hours. Upon returning to the rental unit IK claims T. they were experiencing breathing issues A. decided to perform another home test F. mold. 21. On September 29th the L. hired a professional air quality company to perform a lab test F. the presence of mold in the rental unit. the company hired by the L. produced results T. stated there were small traces of mold in the air but they were not hazardous to the health of the tenants. 22. On October 12, 2022 the tenants hired Ont Restoration Services, an air quality company to perform their own test. On October 21, 2022 the tenants received a report with the results F. the test performed by Ont Restoration Services, T. the mold levels in the house were dangerous A. the house was not habitable due to the high levels of mold. 23. To support their claim the tenants submitted documentary evidence in the form of the air quality test results. 24. The T.’s witness, SM testified T. upon arriving at the rental unit he performed an inspection of the area with mold A. he concluded T. there was black mold in the insulation material, due to prior water damage. SM also testified it appeared as if someone tried to remove the material affected by the mold but did not do a thorough job. 25. SM testified T. the T. hired Ont Restoration Services to collect the samples of mold but SM’s company did not perform lab testing on the collected samples. SM testified T. Ont Restoration Services uses a company by the name of Oshtech to perform the lab testing. 26. SM further testified T. because he was not the lab technician T. performed the test he could not speak directly to the results however being a professional in the mold removal industry he submitted T. when there are levels present as high as indicated on the tenants results he recommends to hire a professional company to remove A. clean the unit of all the mold. 27. I questioned SM with respect to the levels of mold present in the T.’s rental unit A. asked if the house was livable. SM testified T. his job was merely to collect the samples A. provide the report back to the T.’s. SM further testified T. he is no doctor A. O. Page 4 of 9  File Number: LTB-T-005931-23 would comment or speculate on the impact the high levels recorded would have on the T.’s health, but SM stated T. being a professional in the industry, he himself would not live in a house with such high mold spore levels. 28. IK testified T. throughout the period of time the T.’s were dealing with the mold issue 2023 ONLTB 59140 (CanLII) they were experiencing health issues related to the “hazardous environment” they lived in. 29. The Tenants claim they could no longer stay in the rental unit A. were forced to vacate December 9, 2022 to find more suitable housing as the L. failed to resolve the mold issue. 30. With the uncontested evidence before me A. on a balance or probabilities I find the L. has failed to meet their obligations under s.20(1) of the Residential Tenancies Act, 2006 (the ‘ACT’). Remedies 31. The T. was seeking an abatement of rent A. an O. terminating the tenancy. 32. An abatement is a contractual remedy. It recognises the idea T. a T. is paying rent F. a bundle of goods A. services A. if the T. 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 T.. The test should be the impact on the average T. or the impact a reasonable person would expect this problem to have had on a T.. Unused rent money F. post dated cheque F. eight months: $5,043.56 33. The T. requested an O. from the Board ordering the L. to pay the T. the portion of unused rent F. the days after the T. vacated the rental unit. The T. paid F. four months of rent in full prior to moving into the rental unit. The T. submitted a money O. in the amount of $11,800.00 F. an advance rent payment of four months. The T. is requesting an abatement F. the unused portion of the rent A. claims they had to move out due to the health conditions caused by the mold. 34. The calculation of daily compensation due the T. F. the days after the T. vacated the rental unit is calculated as follows: O. Page 5 of 9  File Number: LTB-T-005931-23 $2,950 (rent) x 12 (months) / 365 (days) = $96.99 per day The T. vacated the rental unit on December 9, 2022 leaving 22 days left in the month. The T. shall receive a rent abatement in the amount of $2,133.78, calculated as follows: 2023 ONLTB 59140 (CanLII) 2 (days) x $96.99 = $2,133.78 Key deposit: $300.00 35. The T. requested an O. from the Board ordering the L. to pay the T. the amount of $300.00 which represents the key deposit the T. claims they paid the L.. The T. submitted as evidence, a copy of a cheque provided to the L. in the amount of $300.00, however, the T. failed to produce any evidence the L. had cashed the cheque. In the absence of any bank statement from the T. showing the L. cashed the cheque, I am unable to conclude the L. owes the T. this money. Nonetheless I will address this in the “It is ordered” section of this O.. Difference in current rent $10,090.56 36. The T. requested an O. from the Board ordering the L. to pay the T. the difference in rent the T. assumed when the T. vacated the rental unit due to the mold issue. The T. failed to submit any evidence to support their request to to support their claim F. this remedy, A. in the absence of such evidence the T.’s request is denied. Average income loss F. IK (worked from home): $5,000.00 37. The T. failed to submit any evidence to support their request the Board issue an O. F. the L. to pay the T. F. lost wages as a result of IK not being able to run her business out of her house due to the mold issue. In the absence of such evidence the T.’s request is denied. Movers in: $1,600.00 38. The T. requested an O. from the Board ordering the L. to pay the T. out of pocket costs F. their moving expenses to move into the rental unit. This cost being claimed by the T.’s is not related to their claim in the application. Further in my view, O. Page 6 of 9  File Number: LTB-T-005931-23 moving expenses incurred by the T., are a normal cost associated with moving into a new rental unit A. therefore the T. request F. this remedy is denied. 2023 ONLTB 59140 (CanLII) Moving out: $2,000.00 39. The T. requested an O. from the Board F. the L. to pay the T. out of pocket costs F. their moving expenses to move out of the rental unit. This cost being claimed by the T., in my view is a normal cost associated with moving from a rental unit. In my view, the Tenants would have incurred this cost had they moved at the end of the tenancy agreement, had there been no mold issue, A. I consider this to be a normal cost incurred by Tenants associated with moving from a rental unit, A. therefore the T.’s request F. this remedy is denied. Mold test by company: $536.75 40. The T. requested an O. from the Board ordering the L. to pay the T. in the amount of $536.75 F. out of pocket costs they incurred to pay to have a mold test performed. While the T. did not submit a receipt indicating they had paid the invoice, I accept the T.’s testimony as credible T. the invoice was paid. This portion of the T.’s claim F. remedies is granted. Self / Home Mold test kit: $51.96 41. The T. requested an O. from the Board ordering the L. to pay the T. F. the out of pocket costs F. the home mold test kit the T. claims they purchased. The T. failed to submit any evidence to support their request A. in the absence of such evidence the T.’s request is denied. Issues Not Identified in the T.’s Application Landscape: $2,200.00 42. The T. requested an O. from the Board ordering the L. to pay the T. F. out of pocket landscaping costs. The T. did not identify this maintenance issue in the T6 application, A. did not provide any documentary evidence to the Board to support this claim. F. the reasons above, the T. is not eligible F. this request F. remedy A. therefore the T.’s request F. out of pocket landscape costs is denied. O. Page 7 of 9  File Number: LTB-T-005931-23 Cleaning A. painting: $2,200.00 43. The T. requested an O. from the Board ordering the L. to pay the T. F. 2023 ONLTB 59140 (CanLII) out of pocket cleaning A. painting costs. The T. did not identify this maintenance issue in the T6 application, A. did not provide any documentary evidence to the Board to support this claim. F. the reasons above, the T. is not eligible F. this request F. remedy A. therefore the T.’s request F. out of pocket cleaning A. painting costs is denied. Cost of legal representation 44. The T. requested an O. from the Board ordering the L. to pay the T. F. out of pocket expenses they incurred to hire a legal representative. Interpretation Guideline 3: Costs A Member has the discretion to require a party, a party's agent or a party's legal representative to pay, as costs, any representation or preparation expenses of another party where the conduct of the party, a party's agent or a party's legal representative was unreasonable. Conduct is unreasonable if it causes undue expense or delay… Other Costs A party who wants to claim costs in addition to the application fee should be prepared to speak to the matter A. to provide support F. the claim. The other party will also be allowed to make submissions on the issue. While the Board may O. a party to pay the costs of another party, costs to a successful party F. the preparation/representation fees paid to a legal representative are generally only awarded in cases of unreasonable conduct set out below. Similarly, the Board will generally only allow costs F. other expenses incurred by the successful party (e.g., travel, expert reports, etc.) where there has been unreasonable conduct by the opposing side. 45. Given the Board’s Interpretation Guideline 3 on costs, the T. did not provide any evidence the opposing party’s conduct was unreasonable. In the absence of any evidence O. Page 8 of 9  File Number: LTB-T-005931-23 to support the T.’s claim F. the cost of the T.’s legal representative’s legal fees, this remedy request is denied. 46. 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 59140 (CanLII) all of the testimony, I have considered it when making my determinations. 47. This O. contains all reasons F. the determinations A. O. made. No further reasons will be issued. It is ordered T.: 1. The tenancy is terminated on December 9, 2022. 2. The L. shall pay to the T. abatements totalling $2,670.53 which represents the portion of unused rent A. the cost of the mold inspection test. 3. If the L. is still in possession of the T.’s $300.00 cheque F. the key deposit, then the L. shall return the cheque. If the L. has cashed the T.’s cheque F. the key deposit the L. shall pay to the T. the amount of $300.00 on or before September 11, 2023. 4. If the L. does not pay the T. the full amount owing on or before September 11, 2023, the L. will start to owe interest. This will be simple interest calculated from September 12, 2023 at 6.00% annually on the balance outstanding. August 31, 2023 Date Issued Greg Brocanier 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