LTB Order LTB-T-009143-22

O. under Subsection 30 Residential Tenancies Act, 2006 Citation: M. v Al H., 2023 ONLTB 54507 2023 ONLTB 54507 (CanLII) Date: 2023-08-09 File Number: LTB-T-009143-22 In the matter of: Basement, 780 O'Connor Dr. East York ON M4B2S4 Between: V. M. T. J. M. A. B. Al H. L. V. M. A. J. M. (the 'T.') A. F. an O. D. T. B. Al H. (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 June 14, 2023. The L.’s Legal Representative, A. Maio, the L. A. the T. attended the hearing. The following witnesses testified at the hearing on behalf of the L.: Randa El-kadi (RE) Khouloud El Hakin (KE) Determinations: 1. As explained below, the T. have not established on the balance of probabilities T. the L. failed to meet his maintenance A. repairs obligations under subsection 20(1) of the Residential Tenancies Act, 2006 (“Act”). 2. While both T. attended the hearing, only V. M. (VM) provided testimony. J. M. (JM) chose to not provide testimony during the hearing when called upon. 3. The T. raised the following issues in this application: water leak from above into bathroom A. mice/mice feces. Evidence O. Page 1 of 4  File Number: LTB-T-009143-22 4. VM stated T. she discovered water damage on the wall of her bathroom on May 5, 2021 A. immediately let the L. know. The L. stated he went to the unit when VM complained. He stated T. his mother was cleaning on the main floor T. day A. believed this caused water to go down into the T.’ bathroom. He explained T. his mother is not from Canada A. didn’t realize T. there was no drain in the floor to clear 2023 ONLTB 54507 (CanLII) the water like there was back home. There was no evidence of any other complaints about water damage/leak between May 6, 2021 A. November 20, 2021. 5. On November 21, 2021, VM stated she heard a swishing sound A. let the L. know T. there may be a possible water leak. The L.’s father attended the unit. There was no evidence of water entering the T.’ unit. As per the text messages provided by the L., the T. advised on December 1, 2021 T. there is now water damage in the bathroom. The T. also advised T. their brother could take a look at it. The L. responded “ok, if he can fix it il pay whatever it costs.” The L. also stated T. they got someone to close the water tap in the upstairs bathroom so it should be fine now. 6. On December 3, 2021, the T.’ brother was at the rental unit A. asked the L. to have someone flush the toilet in the upstairs bathroom. The T.’ brother cut an opening in the bathroom wall A. the inside was wet. He was also able to determine T. the leak is a result of the toilet in the upstairs bathroom A. advised to call a plumber right away. The L. responded via text message T. he called the contractor who renovated the basement who will come in 3 days, A. T. no one upstairs will use T. bathroom. 7. There was no dispute T. about 4 days later the L.’s general contractor inspected the T.’ bathroom A. also advised T. a plumber is needed. RE testified T. she contacted a plumber on December 7, 2021 A. the plumber came on December 8, 2021. It was not disputed T. the plumber cut an opening in the ceiling of the T.’ bathroom. According to the L., the plumber advised T. there is a problem with the pipe A. will need to go through the floor in the upstairs bathroom to fix it. 8. VM stated T. the L.’s contractor advised her T. work needed to be done in her bathroom on December 13, 2021, so she went A. stayed at a hotel. The L. stated T. he was not aware of this conversation A. stated T. the area affected was his bathroom upstairs. The L. stated T. the only work done in the T. bathroom were the repairs to the ceiling A. wall openings T. were made by the plumber A. the T.’ brother, which were completed by the end of December 2021 when the repairs to the upstairs bathroom were completed. 9. VM stated T. when the plumber opened the ceiling mice feces fell onto the bathroom floor A. remained there F. 3-4 weeks. RE testified T. she didn’t see any feces but had asked VM if they needed to clean up. According to RE, VM said “no.” VM stated T. she was having breathing issues since moving into the unit A. believed the presence of mice feces to be the cause of these issues. VM stated T. in February 2022 when she opened the vent above her bed, debris fell down including dead fruit flies A. mice feces. O. Page 2 of 4  File Number: LTB-T-009143-22 10. There was no dispute T. when the T. mentioned mice feces A. noise in the walls to the L., the L. provided mice traps to the T.. VM confirmed T. she set the traps around the unit A. T. no mice were ever caught. VM also assumed T. the mice were getting in from openings but did not provide any evidence of any openings in the rental unit. KE testified T. she contracted a pest control company in July 2021 to 2023 ONLTB 54507 (CanLII) check F. openings around the property. KE testified T. they inspected the exterior of the house A. place traps. KE further testified T. they reported not finding any openings. Analysis 11. The issues to be determined in this application is whether or not the L. breached his maintenance obligations pursuant to subsection 20(1) of the Act. Subsection 20(1) of the Act states the following: 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. 12. 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 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. 13. In accordance with Onyskiw, the L. was not automatically in breach of his maintenance obligations once he became aware T. there was a water leakage issue at the rental unit. A contextual approach A. consideration of the entirety of the factual situation must be taken. When this approach is taken, it is clear from the evidence above T. the L. responded immediately A. effectively to the problems reported by the T.. 14. I find it more likely than not T. the incident on May 5, 2021 was a result of excess water being used to clean the floor above the T.’ unit, as there were no further complaints about water damage from the T. from May 6, 2021 to November 20, 2021. There was no evidence provided T. as a result of this incident any repair was necessary to the T.’ unit. 15. With respect to the water leak reported by the T. on November 21, 2021, although at this time there was most likely water leaking when the upstairs toilet was flushed, the T.’ unit was not affected until December 3, 2021 when the T. found water damage on the bathroom wall. The L. immediately stopped using their bathroom above the T.’ unit. The T.’ unit had a small amount of water damage on one wall which did not impact the T. from using this bathroom. As well, the T. had another bathroom in their unit. 16. I find T. the repair to the pipe was completed within a reasonable time by the L. as there were no further reports of any or additional water damage within the T.’ unit. O. Page 3 of 4  File Number: LTB-T-009143-22 As well, there was no dispute T. the holes made in the T.’ bathroom ceiling A. wall (water damage area) were repaired by the end of December 2021. 17. Having considered all of the evidence, I find T. the L.’s response to the water leakage issue was reasonable A. timely in these circumstances. Therefore, he did not 2023 ONLTB 54507 (CanLII) breach his obligations pursuant to section 20 of the Act. 18. Based on the evidence before me, I was not satisfied T. there was mice problem at the rental unit. VM confirmed T. she never saw any mice, A. none were ever caught in the mouse traps were set around the unit. VM stated T. mice feces fell from the bathroom ceiling A. bedroom vent. As per the photos submitted of the debris T. fell from the vent, the amount was so miniscule T. it did not support a finding T. a mice problem existed. In any event, the T. led insufficient evidence to find T. the presence of the mice feces affected the Tenant health. The T. did not provide any medical evidence to support a finding T. their breathing issues were a result of the presence of mice feces. It is ordered T.: 1. The T.’ application is dismissed. August 9, 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 4 of 4