LTB Order LTB-T-010861-22

2023 ONLTB 74102 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: W. v P., 2023 ONLTB 74102 Date: 2023-11-27 File Number: LTB-T-010861-22 In the matter of: 2, 509 Second St London ON N5V2B6 Between: A. L. M. W. T. A. B. A. P. P. L. A. L. M. W. A. A. B. (the 'T.') A. F. an O. D. T. P. P. (the 'L.'): • substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of their household. • harassed, obstructed, coerced, threatened or interfered with the T.. • withheld or interfered with their vital services. This application was heard by videoconference on June 13, 2023. The T. A. the L. attended the hearing. Determinations: 1. As explained below, the T. have partially proved the allegations contained in the application. The L. must pay the T. $113.00 inclusive of costs. 2. The application was filed February 23, 2022. The T. moved into the unit April 28, 2021 A. they moved out of the unit on June 30, 2022. O. Page 1 of 9  File Number: LTB-T-010861-22 3. At the hearing, the T. requested to amend their application to increase remedy 1 on the application F. an abatement of rent to $10,400.00. The L. consented to the amendment. The application is accordingly amended to reflect the above change in monetary abatement request. 2023 ONLTB 74102 (CanLII) T.’ evidence A. submissions 4. The T. raised the following issues on their T2 application: • Falling tree branches • Flooding in bathroom • Noise from upper-level unit • Harassment from the L. • No/lack of heat in the unit • Removal of the fence A. gate to the back yard 5. The Tenant AW testified T. tree branches were falling from one of the trees on the property onto the driveway A. vehicles in August 2021. After multiple requests to the L., a tree service came to remove the tree. She testified T. F. three months the T. parked on the street to avoid damage to their vehicles A. this was stressful A. inconvenient. 6. AW testified T. their bathroom flooded after a significant rainfall on September 21, 2021, October 3, 2021 A. December 15, 2021. They had to use towels to wipe up the water A. used a dehumidifier provided by the L.. She testified T. the issue was never properly resolved which caused ongoing inconvenience F. the T.. She entered a video which was not visible A. one photograph of a section of wet floor, dated September 22, 2021, which was part of a text message with the L., notifying him of the water in the bathroom. 7. AW testified T. a female occupant moved into the upstairs unit of the rental complex in either August or September 2021. Since January 12, 2022, the upstairs tenant began disturbing the T. with excessive noise early in the mornings. She testified T. the tenant upstairs would start making very loud noise between 6:00 A. 7:00 am with loud music, rolling/dropping what sounded like heavy weights on the floor, jumping on the floor above the T.’ bedrooms (which was the kitchen in the upstairs unit). She testified T. they texted the L. numerous times about this issue but eventually, the L. stopped responding to them. She testified T. they never called police. They were never notified if the L. ever served notice on the other tenant. She testified T. the noise issue was especially challenging F. her because she works until 3:00-4:00 am A. usually had just gone to bed when the noise would start. She testified T. she is also a full-time student A. was getting little to no sleep as a result of the noise issues. Text messages were submitted as evidence of the noise complaints F. January 12 A. 20, 2022. O. Page 2 of 9  File Number: LTB-T-010861-22 8. AW testified T. the upper-level unit had exclusive control of the thermostat A. T. tenant upstairs intentionally kept the heat level too low F. them in the basement. She testified T. during the winter the unit was usually 14-16 degrees Celsius A. T. they had to buy heated blankets A. space heaters but did not use the space heaters because they realized T. the lease did not permit the use of them. She did not have receipts F. the space heaters. 2023 ONLTB 74102 (CanLII) She testified T. despite many request to the L. to give them access to the google home heating controls, the L. did not permit this A. there was no resolution to the issue during their tenancy. She testified T. even in May 2022 the unit was still very cool. She testified T. property standards suggested a lock on the thermostat but this also was never done. One reading from a manual thermometer showed a temperature of 17 degrees Celsius which the Tenant asserts was taken on January 12, 2022. 9. AW testified T. the L. began to harass the T. in February 2022 around the time T. they filed the application with the Board. She testified T. the L. sent her dozens of texts A. calls from February 14 - 24, 2022 A. used a derogatory term toward AW during their communications by calling her “mental”. She testified T. the L. refused to address the noise A. heat issues with the upper-level tenant A. told AW to go talk to the upstairs tenant directly. She testified T. she became nervous about the many messages from the L. at this time A. began to avoid him. She testified T. from mid-February 2022, the L. pressured them to move out of the unit at the end of their term, April 30, 2022. 10. The Tenant AB testified T. on April 20, 2022 the unit was very cold A. at T. time she purchased a temperature gauge but the L. dismissed their concerns. She testified T. they had sporadic access to the app which controls the heat but they would be kicked on A. off of the app, access was intermittent. She testified T. the unit was usually below 18 degrees Celsius but T. it did fluctuate up A. down. She testified T. from about February 2022 onward she did not stay at the unit much. She would drop in to pickup what she needed A. left. She testified T. they were stressed A. felt pressured to move. They both found somewhere else to move A. gave notices on April 14, 2022 T. they would be moving out of the unit June 30, 2022. 11. AB testified T. T. the L. removed a portion of the fence A. gate to the backyard in April 2022 which appears to be a span of 6-8 feet in width. Because they had a dog, AW purchased some chain link fence to secure the open space, which cost $200.00. They took the chain link fence when they moved out of the unit. No receipts were tendered as evidence to support the purchase. L.’s evidence A. submissions 12. The L. PP testified T. he owns multiple rooming houses, all of which are fully registered A. licensed by the municipality, professionally managed A. maintained by licensed contractors, including exterior work A. landscaping. O. Page 3 of 9  File Number: LTB-T-010861-22 13. PP testified T. he found himself constantly mediating between the upper A. lower T. at the rental complex A. feels T. he did the best T. he could in a very frustrating situation. He testified T. he felt like he was a mediator/babysitter between the T.. 2023 ONLTB 74102 (CanLII) 14. He testified T. the issues began shortly after the upper-level tenant moved in to the unit. T. tenant was bitten by the Tenant AW’s dog in the backyard of the complex on October 13, 2021 A. things deteriorated from there. He testified T. he believes the upstairs tenant removed the gate from the property based on communications she had with property standards about the Tenant AW’s dog. He testified T. the T. almost immediately put up some chain link fencing, so he let the issue go, assuming it to have been resolved. 15. PP testified T. the tree issue was raised on August 28, 2021 by AW, who wanted the tree removed F. more parking space. He responded same day A. arranged F. a tree service to remove the tree. The service was in queue A. took about 2 ½ months F. the service to be completed. He tendered an invoice dated November 22, 2021. 16. PP testified T. he relayed the noise complaints he received to the upstairs tenant, A. he always sent screen shots to each unit about the mutual complaints between them. He did not serve notices on either tenant in the complex because he had attempted to mediate the situation A. had no significant evidence against one tenant or the other, but rather it was an issue of T. not getting along. He further testified T. the complaints ceased F. some time, so he assumed the noise issues had resolved. 17. PP testified T. he stays up on all maintenance needs reported. The water leaking in the bathroom was repaired on October 16, 2021, A. a work record was tendered as evidence F. this repair A. F. exterior work completed to resolve the issue. 18. PP testified T. the T. had access to the heat regulation app at the complex. He referred to the heating app as a Nest Thermostat which digitally detects when the home is occupied A. the heat fluctuates based on activity in the unit. He testified T. the app can be set on various modes. Everyone in the complex had access to the app. When complaints about the heat came up in January 2022, he checked the app frequently A. found T. it was consistently registered at 20 degrees Celsius, unless the Wi-Fi was out, in which case the app would not work until the Wi-Fi connection was restored. He testified T. on one occasion the app was unavailable F. about 20 hours due to a Wi-Fi outage. When the issue of the heat continued, he removed access to all of the T. on or around April 15, 2022 A. set the heat himself at 20 degrees Celsius. 19. He testified T. while the upstairs tenant had access to the thermostat, the T. had access to the electrical panel in the basement A. he received multiple complaints from the upstairs tenant T. the T. had shut off power to the upstairs unit. PP testified T. the O. Page 4 of 9  File Number: LTB-T-010861-22 City of London advised him T. there was nothing he was required to do because it was T. not getting along with each other, not a violation of his obligations. He testified T. he was never issued an O. from the City of London A. he relied upon a letter from the City of London to the L., confirming this testimony. 2023 ONLTB 74102 (CanLII) 20. PP testified T. it was very draining dealing with the T. A. he did ask them to move out at the end of their lease, being April 30, 2022. He posted a note on their door A. communicated by text in mid February 2022 T. he did not wish to renew their lease A. expected them to move out of the unit. He denied harassing them. He testified T. he did use a derogatory term toward AW out of frustration in dealing with so many issues with the T. but he did not intentionally harass the T.. He testified T. his contact with the T. in February 2022 was to find out what their application was regarding. He was surprised to receive a notice from the Board T. the T. had filed an application against him but not a copy of it. In one of the text messages tendered by the T., PP requested T. they send him a copy. PP admitted T. he reached out to the T. over several days as the T. were not replying to him. Analysis: 21. 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”. 22. “Vital Service” is defined in subsection 2(1) of the Act as “hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat.” The Act also defines as part of vital services heat from September 1 to June 15, in most cases a minimum temperature of 20 degrees Celsius as set out in section 4 of O. Reg. 516/06. 23. The T.’ evidence was T. there was a lack of sufficient heat in the unit, not T. the L. withheld the vital service of heat. The evidence was T. controls over the thermostat were constantly manipulated between the two units. F. the reasons, given, I find T. the L. did not breach section 21 of the Act A. the vital services part of the application is accordingly dismissed. 24. Section 22 of the Act provides T. a L. shall not substantially interfere with the reasonable enjoyment of the rental unit F. all usual purposes by a Tenant. 25. The wording of section 22 of the Act makes it clear T. it is concerned with the conduct of landlords. In this case, the conduct of the L. which the Tenant claims caused a substantial interference with their reasonable enjoyment of the unit was the L.’s failure O. Page 5 of 9  File Number: LTB-T-010861-22 to take reasonable A. effective steps to address the T.’ complaints about excessive noise A. other conduct by another tenant living in the same residential complex. 26. A L.’s duty to address substantial interference with the reasonable enjoyment of a tenant by another tenant was affirmed by the Divisional Court in Hassan v. Niagara Housing 2023 ONLTB 74102 (CanLII) Authority, [2000] O.J. No. 5650 (hereinafter “Hassan”). The Court held as follows: 16. It is not T. the other tenant's actions are imputed to the L., but, rather, the L.'s legal responsibility to provide the tenant with quiet enjoyment T. gives rise to the responsibility on the L. to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment. 27. In other words, a L. has the positive obligation to provide the tenant with quiet enjoyment A. take the reasonably necessary action against any tenant T. denies a neighbouring tenant quiet enjoyment of his premises. 28. Subsection 23(4) of the Act states T. a L. shall not harass, obstruct, coerce, threaten or interfere with a tenant. There is no definition of “harassment” under the Act but generally speaking harassment is usually considered to be a course of conduct T. a reasonable person knows or ought to know would be most unwelcome. 29. In relation to the noise issue, I am not persuaded T. the conduct of the L. rises to the level of harassment or substantial interference. I find T. the L. communicated swiftly with all occupants in the complex whenever he received complaints. He testified T. it was back A. forth of mediating between two T. who did not get along. It was the L.’s evidence, also supported by the T.’ documentary evidence, T. the L. responded to messages A. relayed complaints back A. forth to the parties, asking them to respect each other. I find T. the L.’s responses A. communications with the T. were appropriate attempts to meet the L.’s obligations, as the L. equally has the obligation under section 22 of the Act to both T.. I accept the L.’s testimony T. the noise complaints ceased A. T. he took the lack of further complaints to mean T. the issue had resolved. The evidence before me was T. the noise issue was short term over about 2 weeks in January 2022 A. the L. responded during these periods. Accordingly I do not find T. the L. interfered with the T. by failing to address noise issues. This portion of the application is dismissed. 30. In relation to the heat issue, I am not persuaded T. the conduct of the L. rises to the level of harassment or substantial interference. I find T. the L.’s actions to discontinue access to the app F. all T. in April 2022 was an appropriate step to take when the ongoing issue persisted. I was not persuaded by the T.’ evidence T. the unit was colder than 20 degrees. With the exception of one manual thermometer reading in an unknown location A. on an undocumented date, there was no evidence to support the T.’ assertions T. the unit was consistently less than 20 degrees. The evidence before O. Page 6 of 9  File Number: LTB-T-010861-22 me was T. the L. requested a screen shot from the T. of the temperature reading from the app, which they did not provide. The L. provided a letter from the City of London confirming T. the L. was in compliance with the local property standards. If there was a lack of heat in contravention of the municipal standard, I would expect there to be evidence of this. There was inconsistent testimony from the T. about 2023 ONLTB 74102 (CanLII) access to the app A. temperatures in the unit. I prefer the L.’s evidence which was more concise A. direct, T. the unit was maintained at 20 degrees Celsius every time he checked the temperatures. I therefore find the L.’s resolution to the heat issue appropriate in the circumstances A. T. the L. did not interfere with the T. with issues related to heat. Accordingly, this portion of the application is dismissed. 31. I am not persuaded T. the L.’s conduct rises to a level of harassment. The L. testified T. he requested the T. move out of the unit by way of a text message A. a notice on the door in mid-February 2022. The T. deny receiving the door notice. The T. responded to the L.’s text, asserting their rights A. advising T. they would not be moving out of the unit on April 30, 2022, T. they intended to continue their tenancy on a month-to-month basis. Therefore, I am not persuaded T. the T. moved out on June 30, 2022 as a result of the L.’s request from February 2022. I am also not persuaded T. the L.’s texts A. calls from February 14-24, 2022 rise to a level of harassment or substantial interference. While it was likely unwelcome to receive so many messages over a 10-day period, I accept the L.’s testimony T. he was seeking information from the T., particularly, a copy of their application. He testified T. he believed the relationship to be in good standing A. was taken aback to be notified by the Board T. the T. had filed an application. The T. could likely have mitigated the situation by sending a copy of their application to the L.. I do not find T. this allegation rises to a level of harassment A. accordingly, this portion of the application is dismissed. 32. While the L. admits to the use of a derogatory term toward AW, I do not think this can reasonably be considered harassing or interfering. The L. testified T. the term “mental” was used in a state of frustration over so many issues with the T.. He also testified T. he was exhausted, with a newborn baby at home A. he admitted T. it was inappropriate to use the term. There was no evidence led to support T. there was any impact suffered as the result of this comment A. it was not an ongoing issue. Accordingly, this portion of the claim is dismissed. 33. Based on the evidence before me, I am not satisfied T. the T. led sufficient evidence T. the L. interfered with the T. regarding the tree removal. I am satisfied, based on the evidence before me T. the L. arranged F. tree removal service when the T. requested it in August 2021. I accept the L.’s testimony T. the company had them on a wait list which took some time. No evidence was led to support T. the T. suffered any impact due to the delay of the tree removal A. the T. testified T. there was no damage incurred. Therefore, this portion of the Tenant’s application is dismissed. O. Page 7 of 9  File Number: LTB-T-010861-22 34. Based on the evidence before me, I am not satisfied T. the T. led sufficient evidence T. the L. interfered with the T. by removing a gate on the property. The L. testified T. he did not remove the fence, T. he believes the upstairs tenant removed it, but T. the T. immediately put up a piece of chain link fence which they 2023 ONLTB 74102 (CanLII) removed when they moved out of the unit. There was no evidence to support the out- ofpocket costs claimed A. the T. have possession of the chain link fence in any event. This portion of the application is therefore dismissed. 35. Based on the evidence before me, I am satisfied T. the L. interfered with the T. as a result of a flood in the bathroom on September 22, 2021 A. October 3, 2021. The evidence before me demonstrates T. the issue occurred after significant rainfalls on September 22, 2022 A. October 3, 2021. The evidence was T. a contractor attended to address the issue on October 16, 2021. Meantime, the T. had to clean up the water with towels on two occasions over a two-week period A. had to wait F. the issue to be repaired. The inconvenience of water in the bathroom on two occasions in a span of 10 days A. the repair taking about 2 additional weeks, in my view rises to a level of substantial interference to which I find T. an abatement of 5% is reasonable. I say this because there was no evidence T. water leak continually in the bathroom over T. period of time, or T. the bathroom was in any way inoperable or inaccessible. Rather, there were two isolated incidents similar in nature on the stated dates. Therefore, I find T. a 5% rent abatement reasonably represents the interference with the reasonable enjoyment of the unit by the T. over the stated 3-week period. There was no evidence led to support T. the issue recurred after the repair of October 16, 2021 A. therefore, the abatement shall be limited to one month. 36. F. the reasons given, there shall be a 5% rent abatement F. one month F. the flooded bathroom issues between September 22, 2021 A. October 16, 2021. The total amount of abatement shall be $65.00. The balance of the T.’ application is dismissed. It is ordered T.: 1. The L. shall pay to the T. $65.00 which represents an abatement of rent F. the flood in the T.’ bathroom. 2. The L. shall pay to the T. $48.00 F. the cost of filing the application. 3. The total amount the L. owes the T. is $113.00 4. The L. shall pay the T. the full amount owing by December 8, 2023. O. Page 8 of 9  File Number: LTB-T-010861-22 5. If the L. does not pay the T. 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% annually on the outstanding balance. November 27, 2023 _______________________ 2023 ONLTB 74102 (CanLII) Date Issued Donna Adams Member, L. A. Tenant Board Head Office: 777 Bay Street, 12th Floor Toronto Ontario M5G2E5 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