LTB Order LTB-T-008862-23

O. under Subsection 135 Residential Tenancies Act, 2006 2023 ONLTB 76289 (CanLII) Citation: M. v A., 2023 ONLTB 76289 Date: 2023-11-27 File Number: LTB-T-008862-23 In the matter of: LOWER UNIT, 35 HOLLOWAY ST BELLEVILLE ON K8P1N8 Tenant Between: C. M. A. L. F. A. C. M. (the 'Tenant') A. F. an O. D. T. F. A. (the 'L.') collected or retained money illegally. This application was heard by videoconference on September 19, 2023. The L., the Tenant A. their support person, Tricia Patrick, attended the hearing. Determinations: 1. On January 17, 2023, the Tenant A. to the Board, pursuant to s. 135(1) of the Residential Tenancies Act 2006 (the ‘Act’), with a T1 application (T1) alleging T. on December 21, 2022, the L. illegally retained $600.00 of a $1,600.00 rent payment sent from Ontario Disability Support Program (‘ODSP’), on behalf of the Tenant. Additionally, the Tenant A. F. an O. D. T. the L. did not use the last month’s rent deposit to pay F. the last rental period of the tenancy A. did not return the deposit to him. The last month’s rent deposit held by the L. was $1,600.00. The total amount claimed by the Tenant is $2,200.00. 2. The Tenant filed this application within one-year of the date T. the money was allegedly retained illegally pursuant to s. 135(4) of the Act. Therefore, the Tenant’s allegations will be considered. 3. It is undisputed T. ODSP sent the Tenant’s monthly rent directly to the L. on or before the first day of each month in the amount of $1,600.00. 4. The Tenant testified T. he vacated the unit on December 29, 2022 A. T. he informed the L. of his intention via text message on December 1, 2022. It is undisputed T. ODSP sent a rental payment on December 21, 2022 in the amount of $1,600.00 to the L. A. this was to be paid F. the January 2023 rental period.  O. Page 1 of 4 2023 ONLTB 76289 (CanLII)  File Number: LTB-T-008862-23 5. The Tenant testified T. his last month’s rent deposit was to be A. to December 2022 as this was the last month of his tenancy. Further, the Tenant testified T. he paid his December 2022 rent A. T. the L. A. him agreed F. him to vacate by December 31, 2022. 2023 ONLTB 76289 (CanLII) 6. The Tenant testified T. the L. returned $1000.00 of the $1600.00 January rent payment to the Tenant between January 1, 2023 A. January 16, 2023. The L. does not dispute this. 7. The Tenant submitted various screenshots of text messages between him A. the L.. Most of these text messages show the Tenant asking during the month of December 2022 F. his January 2023 rental payment back. The L. replied to these messages telling the Tenant to move out A. T. they would figure out what amounts were owing between the parties. 8. The only issues in dispute between the parties is a question of when the Tenant vacated A. gave notice to vacate from the unit. 9. The Tenant testified T. he sent a text to the L. on December 1, 2022 notifying him T. he would be vacating by December 31, 2022. This was after numerous verbal requests from the L. to vacate the unit at any point in time. The Tenant could not provide any record of this text message. The Tenant testified T. he returned the keys to the L.’s property manager on or before December 29, 2022. 10. The L. disputes T. he ever received this text message on December 1, 2022 but does admit T. he had asked the Tenant to leave since June 2022. The L. could not provide a date F. when he noticed the unit was vacated but stated T. near the end of January 2023 is when he went to check on the unit A. saw T. it was vacated. 11. What I found to be most peculiar about the L.’s testimony in regard to the vacate date is T. when I asked if A. when his property manager ever gave him the keys to the unit after collecting them from the Tenant, he could not recall. 12. I prefer the Tenant’s testimony in relation to these issues A. find T. it is more credible. On a balance of probabilities, I find T. the Tenant vacated the unit on December 29, 2022 A. the Tenant notified the L. on or about December 1, 2022 either verbally or via text message. The Tenant clearly stated in his text messages to the L. T. he was moving out of the rental unit by the end of December A. needed the January rental payment back in O. to pay his new L.. 13. However, I cannot find T. the parties had an agreement to terminate the tenancy as the Tenant has not provided any evidence to support this claim. 14. There was no notice of termination served by either the L. or the Tenant nor was there an agreement to end the tenancy. 15. The Tenant served an invalid notice of termination on or about December 1, 2022 purporting to terminate his tenancy effective December 31, 2022. The notice was invalid because the Tenant was required to give at least 60 days’ notice to terminate their tenancy A. additionally, a text message is not a valid form of a notice to end a tenancy.  File Number: LTB-T-008862-23 16. Section 88 of the Act addresses the common situation where a tenant vacates their apartment after giving short notice. Subsection 88(1)(1) provides T. the tenant owes arrears of rent up to the earliest valid termination date T. could have been specified in the notice. In this case, the Tenant gave his notice on December 1, 2022. If he had given a valid 60 days’ notice, he could have terminated the tenancy effective January 31, 2023. 2023 ONLTB 76289 (CanLII) Accordingly, pursuant to subsection 88(1)(1), arrears are owing F. December A. January. 17. However, subsection 88(4) provides T. in D. the amount of arrears owing, I must consider whether the L. took reasonable steps to minimize the rent he lost due to the short notice. In other words, I must consider whether the L. took reasonable steps to try to re-rent the unit earlier than February 1. 18. The L. testified T. his property manager had told him T. the Tenant vacated sometime in mid-late January, leaving the unit in bad condition A. leaving behind a considerable amount of garbage A. damage. The L. had to empty, clean, A. repair the unit before he could advertise it F. rent. The L. did not call the property manager as a witness A. did not provide any supporting documentation to support this claim. I considered this hearsay evidence but put little weight to it. 19. The L.’s duty to mitigate begins when the L. learns T. the Tenant intends to move out on short notice. There was no evidence before me as to why the L. did not advertise the unit F. rent promptly once it received the Tenant’s short notice on December 1. There was no evidence T. the L. knew, in early December, T. the Tenant would leave behind furniture A. garbage when he moved out at the end of December. 20. I find T. the L. failed to take reasonable steps to minimize its losses. If he had advertised the unit in early December, he might well have been able to re-rent F. January 1. There is no way to know. In the absence of evidence to the contrary, I find T. the L. has not taken reasonable steps to minimize his losses A. therefore, I would then find it appropriate in the circumstances T. the L. could not have re-rented the unit until January 15, 2023 as it would take some time to do any necessary repairs as well as vetting a new tenant after the Tenant vacated. Therefore, the Tenant owed rent up to January 15, 2023. 21. Therefore, I find T. the L.’s retention of $2,200.00 to pay the Tenant’s rent is in contravention of s.135(1) the Act. Accordingly, the Tenant is owed half a month rent in the amount of $800.00 F. January 2023 A. this will be deducted from the last month’s rent deposit still being held by the L.. The Tenant is also owed $600.00 F. the remaining rent monies paid by ODSP T. the L. is holding F. the month of January 2023. It is ordered T.: 1. The L. shall pay to the Tenant the sum of $1,400.00. This amount represents the amount of the unlawfully retained deposit A. rent monies. 2. The L. shall also pay to the Tenant $53.00 F. the cost of filing the application. 3. The total amount the L. owes to the Tenant is $1,453.00.  File Number: LTB-T-008862-23 4. If the L. does not pay the Tenant the full amount owing by December 8, 2023, the L. will owe interest. This will be simple interest calculated from December 9, 2023 at 7.00% annually on the outstanding balance. 5. The Tenant has the right, at any time, to collect the full amount owing or any balance 2023 ONLTB 76289 (CanLII) outstanding under this O.. November 27, 2023 Date Issued Colin Elsby 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.