LTB Order LTB-T-007263-22

O. under Section 31 Residential Tenancies Act, 2006 2023 ONLTB 71912 (CanLII) Citation: Z. v Lu, 2023 ONLTB 71912 Date: 2023-11-28 File Number: LTB-T-007263-22 In the matter of: Basement, 128 Kingston Road Newmarket ON L3Y5W7 Tenant Between: J. Z. A. L. F. Lu J. Z. (the 'Tenant') A. F. an O. D. T. F. Lu (the 'L.'): • entered the rental unit illegally. • 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. This application was heard by videoconference on July 11, 2023. The L.’s Agent (son), Zilan Wu, the L., A. the Tenant attended the hearing. The Tenant was supported at the hearing by Amy Long. Determinations: Res Judicata 1. The L.’s Agent stated T. there are two previous orders, LTB-L-002518- 22/LTB023996-22 A. LTB-L-052776-22. The L.’s Agent stated T. the parties discussed the Tenant’s issues in mediation which led to O. LTB-L-002518-22. The L.’s Agent stated T. rent arrears were waived. 2. The doctrine of res judicata is intended to provide F. finality A. not permit a party to engage in abuse of process by relitigating a matter T. has already been finally determined. There are three well established preconditions T. must be met, following which the decision maker must consider whether to exercise its discretion to apply the doctrine: O. Page 1 of 9  File Number: LTB-T-007263-22 1. The parties to T. decision or their privies are the same in both proceedings; 2. T. the same question has been decided in earlier proceedings; 3. The earlier judicial decision was final. 3. I am not satisfied T. the doctrine of res judicata applies in this instance as all three 2023 ONLTB 71912 (CanLII) conditions have not been met. The parties are the same however the previous orders were L. applications T. did not determine the same questions T. arise in this application. In this application, the Tenant is seeking remedies F. alleged L. breaches, the previous applications filed by the L. sought remedies F. alleged Tenant breaches. 4. Further, O. LTB-L-002518-22 which is a consent O. reach during mediation states T. “the L. agreed to waive the current amount owing ($2,092.00) providing the Tenant voluntarily moves out of the unit on or before November 30, 2022. Therefore, the arrears were waived in exchange F. termination of the tenancy, not because of the Tenant’s alleged L. breaches. In any event, the O. awarded this amount to be paid to the L. if the Tenant did not vacate the unit by November 30, 2023. 5. Also, there is a paragraph in O. LTB-L-002518-22 T. states “the parties have the option to file additional applications.” Therefore, I find it likely T. the parties contemplated filing other applications F. the issues not determined in T. O.. Tenancy Exempt 6. The L.’s Agent submitted T. the Tenant is renting a room in the basement A. sharing the kitchen A. bathroom him, A. he is the L.’s son. 7. Section 5 of the Residential Tenancies Act, 2006 (the “Act”) states in part: (i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, A. where the owner, spouse, child or parent lives in the building in which the living accommodation is located 8. The parties originally signed an Agreement to Lease on June 8, 2018 wherein the Tenant leased the basement at this address F. the period of one year from June 15, 2018 at the rate of $1,380.00 per month. According to the L., the Tenant then signed a sublease agreement with a roommate A. both of them occupied the basement unit. The basement has two bedrooms, a kitchen A. a bathroom. 9. The L.’s Agent stated T. when the Tenant’s roommate moved out in May 2021, the parties’ changed the agreement. He stated from June 2021 onward the Tenant paid $640.00 to rent one of the bedrooms in the basement as she could not afford the full rent F. the entire basement. 10. The L.’s Agent also stated T. the L. sold her other home A. moved to this address in February 2022. The L. Agent’s stated T. the L. occupied the O. Page 2 of 9  File Number: LTB-T-007263-22 main level A. his intention was to occupy the other bedroom in the basement. According to the L.’s Agent the Tenant prevented him from fully occupying the other bedroom in the basement. 11. The Tenant stated T. she originally lived in the basement unit with her father. She also 2023 ONLTB 71912 (CanLII) stated T. her father moved out in December 2020 A. then she found a roommate. She further stated she gave notice to the L. T. her roommate A. her will move out at the end of May 2021. 12. At the end of May 2021 after the Tenant left the premises, she stated T. the L. asked F. her help A. requested T. she to return to the unit because the L. could not sell house A. they wanted someone in the place. The Tenant stated T. the L. had a business in Vancouver A. invited her to go work in Vancouver in the future. The Tenant stated T. her relationship was really good with the L.. 13. The Tenant stated T. she was paying less rent because the L. said she could stay F. free, but the Tenant insisted she pay something. The Tenant stated she paid $700.00 at her other place which included internet so she told the L. she would pay $700.00. However, since internet charges were separate, the Tenant stated T. she paid $640.00 F. rent to the L. A. $60.00 F. internet services. The Tenant also believed T. she was renting the entire basement F. this amount. 14. The L.’s Agent disputed the Tenant’s evidence. He acknowledged T. they tried to help the Tenant A. offered her the basement bedroom F. free F. a short period because she was not able to find another place to live because of her dog. However, he stated T. when she did not leave the unit at the end of May 2021 as per her notice to vacate, they made the agreement F. her to pay $640.00 a month F. just the bedroom as this was what she could afford. 15. There was no dispute T. the parties had an original agreement wherein the Tenant rented the entire basement F. $1,380.00. There was also no dispute T. after May 31, 2021, the tenancy continued but the rent was reduced to $640.00. The parties were in dispute as to whether or not the Tenant moved out of the unit F. a period of time after May 2021. The L.’s L1 application, LTB-L-023996-23, included rent owing in the amount of $1,380.00 F. May 2021 A. $640.00 F. June 2021, as well as other months owing. Given this, I find on the balance of probabilities T. the Tenant never left the premises in June 2021. 16. Given T. the Tenant did not move out A. T. the rent was significantly reduced, I find it more likely than not T. the terms of the original agreement changed from renting the entire basement to renting one bedroom with use of the basement kitchen A. bathroom. I do not find it believable or reasonable T. the L. would simply just reduce the rent. 17. However, the L. or her son cannot simply occupy the other unoccupied bedroom in the basement after this time, A. then rely on subsection 5(i) of the Act to say T. the tenancy is exempt from the Act. O. Page 3 of 9  File Number: LTB-T-007263-22 18. Based on the evidence before me, I am not satisfied T. the intention was T. the Tenant would share the basement kitchen A. bathroom with the L.’s son. There was no dispute T. in June 2021, the L. A. her son were not living at the rental unit address when the terms of the parties’ existing agreement changed. The L. only 2023 ONLTB 71912 (CanLII) sold her other home in December 2021, A. it was after this date T. the L. or her son began residing at the rental unit address. 19. Further, there is no dispute T. the L. has filed recent applications to the Board F. other determinations related to the tenancy A. received orders wherein it was not argued T. the tenancy is exempt from the Act. T2 application 20. There was no dispute T. the Tenant did not serve the L. with copies of the supporting evidence T. she emailed to the LTB. Therefore, the Tenant’s supporting evidence will not be considered. The L.’s Agent also stated T. the L. did not receive the T2 schedule ‘A’, which was only discovered during the hearing. The L.’s Agent stated T. he does not want an adjournment F. service A. is waiving service of the schedule “A” (full pleadings), as he is able to respond to the Tenant’s claims today. 21. There was no dispute T. the L.’s Agent served copies of the L.’s supporting evidence to the Tenant A. LTB via email the morning of this hearing. The Tenant acknowledged receipt A. did not require any additional time to review the documents. 22. There was also no dispute T. this tenancy terminated when the Tenant vacated the rental unit on January 9, 2023. 23. In this application the Tenant alleges T.: • The L. illegally entered her unit when the main door, adjoining door between upstairs A. basement; A. the wood door (backyard gate) was unlocked on various dates; A. • The L. interfered with or withheld a vital service when the heat was turned off on February 6, 2022 from 6:45 p.m. to February 7, 2022 at 10:30 a.m. A. again on February 7, 2022 from 6:45 p.m. to February 8, 2022 at 10:20 a.m.; A. • The L. has threatened to kill her A. her dog on various dates; A. • The L. has harassed, coerced, obstructed A. interfered with her by yelling, rushing at her, prohibiting her to close the wood door (backyard gate), prohibiting her from reinstalling internet service, checking every room, turning off lights, A. throwing away her belongings. 24. As explained below, the Tenant failed to establish on a balance of probabilities T. the L. or the L.’s Agent illegally entered her rental unit on the stated dates. The O. Page 4 of 9  File Number: LTB-T-007263-22 Tenant also failed to establish on a balance of probabilities T. the L. shut off the heat on February 7 A. 8, 2022. 25. However, the Tenant did establish on a balance of probabilities T. the L.’s conduct on four occasions amounted to harassment A./or threatening behaviour. Therefore, I find 2023 ONLTB 71912 (CanLII) T. the Tenant is entitled to a rent abatement totalling $1,120.00. 26. Section 2 of the Act states a “rental unit”: means any living accommodation used or intended F. use as rented residential premises, A. “rental unit” includes, (a) a site F. a mobile home or site on which there is a land lease home used or intended F. use as rented residential premises, A. (b) a room in a boarding house, rooming house or lodging house A. a unit in a care home; 27. Section 23 of the Act states: A L. shall not harass, obstruct, coerce, threaten or interfere with a tenant. 28. Subsection 21(1) of the Act states: 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, withhold the reasonable supply of any vital service, care service or food T. it is the L.’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food. Emphasis Added 29. Section 23 of the Act states: A L. shall not harass, obstruct, coerce, threaten or interfere with a tenant. 30. Section 25 of the Act states: A L. may enter a rental unit only in accordance with section 26 or 27. Emphasis added Illegal Entry 31. Based on the evidence before me I was not satisfied T. the L. or the L.’s Agent/son illegally entered the Tenant’s rental unit on the dates stated by the Tenant. As per the above finding, I was satisfied T. the Tenant’s rental unit is one of the bedrooms in the basement. The Tenant did not provide any evidence T. the L. or the L.’s Agent entered or attempted to enter her bedroom. O. Page 5 of 9  File Number: LTB-T-007263-22 32. Section 25 of the Act requires T. a L. may only enter a “rental unit” in accordance with the Act. Therefore, I find T. the L. or the L.’s Agent did not breach the Act or enter illegally when they entered the basement common area with or without notice. 33. The Tenant stated T. the L. illegally unlocked her doors A. entered the basement 2023 ONLTB 71912 (CanLII) on the following dates: December 10, 12, 2021, January 3, 5, 6-19, 2022, February 14, 23, 2022. She stated T. she was at home on some of these occasions A. on the other occasions she knew of the entries because on three dates the L. left a note A. on another date the L. installed a new lock the other bedroom door. She also stated T. she was aware the L. entered the basement because she left a voice recorder in her 34. The L.’s Agent stated T. he advised the Tenant T. he would be moving into the other bedroom in the basement on November 1, 2021 A. confirmed this with an email sent to the Tenant on September 30, 2021. He stated T. he was not able to access the basement on November 1, 2021 as planned because the Tenant had locked the main door A. was occupying the entire basement. He stated T. the L. then served a written notice advising the Tenant T. they need to access the basement main area to access the other bedroom A. subsequently unlocked the main door A. entered pursuant to this notice. Harassment/Coercion/Interference/Threats 35. Based on the evidence before me, I find it more likely than not T. the L. harassed A. threatened the Tenant during her tenancy. 36. On December 12, 2021, the Tenant’s testified T. the L. entered the basement A. burst into anger yelling “I need to kill you to death” A. T. she “wanted to beat us.” The Tenant stated T. the L.’s husband had to hold the L. back as she yelled at the Tenant. The L.’s Agent did not refute this incident. Consequently, I find T. the L.’s conduct A. words on this date amounted to harassment A. were of a threatening nature toward the Tenant. 37. In addition to this incident, the Tenant described three other times when she was outside on the premises with her dog wherein the L. either approached her or said words to her T. made her feel threatened. In particular, one time when she was outside, the Tenant stated T. the L. rushed up to her face-to-face A. yelled “you call police, you call police.” Another time, the Tenant stated T. the L. said, “let your dog come” A. then told her if she let the dog come it would be killed. 38. The Tenant also stated T. on another date when she was outside on the premises, the L. threatened her A. her dog A. she was afraid to return to her unit. The Tenant stayed at a neighbour’s overnight on this occasion. The Tenant also stated T. she called the police with the assistance of her neighbour. She stated T. the police attended A. told her to contact the LTB F. assistance A. told the L. to not enter the Tenant’s room. O. Page 6 of 9  File Number: LTB-T-007263-22 39. Although, the L.’s Agent denied T. he threatened the Tenant or her dog, the L. herself did not provide any evidence to refute these incidents. These incidents involved the Tenant A. the L.. 2023 ONLTB 71912 (CanLII) 40. Therefore, based on the evidence before me, I was satisfied T. the L. engaged in threatening behaviour towards the Tenant on these three occasions. These three incidents amounted to a pattern of harassment towards the Tenant A./or her dog which impacted the Tenant’s sense of security at the rental unit. 41. The L.’s Agent stated T. he had to call the police on March 5, 2022 when the Tenant showed up at the L.’s door at 2:11 a.m. On this occasion he advised the police T. he did not want any more face-to-face contact with the Tenant. He stated T. the police directed the Tenant A. him to only communicate in writing going forward. On March 8, 2022 he stated A. submitted a copy of a text message to the Tenant confirming his email address F. all future communication. He also stated T. same night around 11:12 p.m. the Tenant came back to their door A. he again had to call the police. 42. The L. Agent stated T. he always communicated with the Tenant in writing. He also stated T. he advised the Tenant via a notice of entry T. Reliance Home Comfort was attending F. an inspection. In support of this assertion, he submitted a copy of the report from Reliance Home Comfort which confirmed T. an entry F. an inspection was refused by Tenant. 43. The L.’s Agent stated T. if the Tenant was so afraid of the L. or him why does she keep coming to their door A. why would she film the L. in the backyard. The L.’s Agent also stated T. he believes T. the Tenant was harassing them. 44. On April 28, 2022, the Tenant stated T. she recorded the L. saying “poison” A. “go down” A. brought the recording to the police station the next day. However, the police could not hear anything on the recording. The Tenant acknowledged T. the recording was not great as the voice was very low. The Tenant further stated T. when she went home T. day, she did not use the water F. one week because she feared being poisoned. 45. The evidence before me was insufficient to find T. this incident amounted to harassment or threatening behaviour from the L.. The L. did not go down to the Tenant’s unit. As well, the Tenant confirmed T. the police did not act on her assertion of a threat. 46. On May 1, 2022 around 4:50 p.m. when she returned home, she smelled gas, so she opened all the doors A. windows. She stated T. she then heard a loud knock on the main door A. there were policemen, firemen A. paramedics in the backyard. She said T. they told her someone called saying the basement person needs rescuing. She did not know who called but suspected it was the L.. O. Page 7 of 9  File Number: LTB-T-007263-22 47. The evidence before me was insufficient to find T. the L. was responsible F. this incident. The Tenant did not provide a copy of a police report confirming where the call came from or any supporting evidence of a gas leak. 48. The Tenant stated T. she has a video T. she took of the L. in the backyard which 2023 ONLTB 71912 (CanLII) she emailed to the LTB. She stated T. on this day, she was home A. heard a noise outside her window A. when she looked out, she saw the L. in the backyard. According to the Tenant this meant T. the L. must have unlocked the backyard door (gate) A. entered the yard without notifying her. The Tenant stated T. the L.’s words to her during this incident were harassing but acknowledged T. the L. did not say words like “kill” in this video. The Tenant stated she has other videos but they were too big to send. 49. The Tenant failed to disclose any videos to the L. in support of her allegations A. therefore this video was not admitted into evidence. Vital Services - Heat 50. Based on the evidence before me, I was not satisfied T. the L. withheld or deliberately interfered with the heat at the residential complex on February 7 th A. 8th, 2022. I find it more likely than not T. there was an issue with the heating system given T. the L. had Reliance Home Comfort scheduled to attend in early March 2022. In any event, the Tenant was able to use a portable heater on these two dates A. experienced no impact due to an issue with the heat. 51. In January 2022, the Tenant stated T. the L. began renovating the house, so they would only be there during the day A. leave at night. The Tenant stated T. on February 6 A. February 7, 2022 after leaving the house, the L. turned off the heat. On these occasions the Tenant used a heater. The Tenant confirmed T. this was sufficient to maintain the heat in her room. 52. The L.’s Agent stated T. they never turned off the heat on these dates. He stated T. the heat sometimes would shut off. He also stated T. is why in early March 2022 he called Reliance Home Comfort to come in A. inspect. Remedies 53. F. the issues in this application, the Tenant requested a rent abatement of $1,120.00 A. compensation of $6,255.69 representing her loss of salary F. the period of January 3, 2021 to June 10, 2022. She also requested an O. F. the L. to stop threatening her, however since the Tenant is no longer in possession of the rental unit, this remedy will not be considered. 54. The Tenant’s request F. rent abatement of $1,120.00 was based on her belief T. she overpaid rent F. the period of May 2020 to December 2020. However, the Tenant’s rent abatement request can be considered F. the issues claimed in this application. Given my findings above T. the L. harassed A. threatened the Tenant during the tenancy O. Page 8 of 9  File Number: LTB-T-007263-22 on four separate occasions, I find T. the Tenant is entitled to the abatement of rent claimed. 55. The Tenant stated T. she was scared of the L. as the L. wanted to kill her dog. Due to this constant worry, the Tenant stated T. she had to gradually reduce her 2023 ONLTB 71912 (CanLII) working time to the point where she could not leave her rental unit to go to work. 56. The evidence before me was insufficient to find T. the Tenant’s loss of salary was due to the L.’s harassing or threatening conduct. Therefore, I am not satisfied T. the Tenant is entitled to compensation F. loss salary as claimed. 57. Given the Tenant’s conduct such as approaching the L. in the backyard to record her or attending the L.’s premises late after midnight, I was not satisfied T. the Tenant could not leave the premises to attend work. Further, the Tenant simply a calculation of salary loss, she did not provide any other testimony or supporting documentation quantifying the amount claimed. 58. The Tenant incurred costs of $48.00 F. filing the application A. is entitled to reimbursement of those costs. It is ordered T.: 1. The total amount the L. shall pay the Tenant is $1,168.00. This amount represents: • $1,120.00 F. a rent abatement; A. • $48.00 F. the cost of filing the application. 2. The L. shall pay the Tenant the full amount owing by December 9, 2023. 3. If the L. does not pay the Tenant the full amount owing by December 9, 2023, the L. will owe interest. This will be simple interest calculated from December 10, 2023 at 7.00% annually on the balance outstanding. November 28, 2023 ____________________________ Date Issued Lisa Del Vecchio 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 9 of 9