LTB Order LTB-T-013625-23

2023 ONLTB 35213 (CanLII) O. under Section 31 Of the Residential Tenancies Act, 2006 Citation: I. I. O. v F. R. W., 2023 ONLTB 35213 Date: 2023-05-10 File Number: LTB-T-013625-23 In the matter of: 31, 331 TRUDELLE ST SCARBOROUGH ON M1J3J9 Between: I. I. O. T. A. F. R. W. L. S. W. I. I. O. (the 'T.') A. F. an O. D. T. F. R. W. A. S. W. (the 'L.') harassed, obstructed, coerced, threatened or interfered with the T., altered the locking system on a door giving entry to the rental unit or residential complex without giving the T. replacement keys A. substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of the T.'s household. This matter was heard on April 27, 2023. The T., the T.’s legal representative, Nasser Ahmed, the L., A. the L.’ legal representative, Michael J. Panacci, attended the hearing. Preliminary Issue: 1. The L.’ legal representative indicated T. S. W. (‘SW’) is the landlord as he is the owner of the property. He stated T. F. R. W. (‘FRW’) is the wife of SW A. acts as the property manager. 2. FRW did not dispute the validity of the Residential Tenancy Agreement admitted into evidence by the T. or T. it is her name only listed as the landlord A. T. she is the only individual who signed the agreement as the landlord. O. Page 1 out of 14  File Number: LTB-T-013625-23 3. The Residential Tenancies Act, 2006 (the ‘Act’) states T. a “landlord” includes, (a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a T. who occupies a rental unit in a residential complex A. who 2023 ONLTB 35213 (CanLII) permits another person to also occupy the unit or any part of the unit, (b) the heirs, assigns, personal representatives A. successors in title of a person referred to in clause (a), A. (c) a person, other than a T. occupying a rental unit in a residential complex, who is entitled to possession of the residential complex A. who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent. 4. FRW was a person who permitted occupancy of the rental unit. Given the definition of “landlord” A. the submissions of the parties, I find it reasonable A. appropriate to amend the application by adding SW as a named landlord to this matter as he is the owner of the rental property. Determinations: 1. The T. alleges the L. breached Sections 22, 23 A. 24 of the Act, which read as follows: 22 A landlord shall not at any time during a T.’s occupancy of a rental unit A. before the day on which an O. evicting the T. is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located F. all usual purposes by a T. or members of his or her household. 23 A landlord shall not harass, obstruct, coerce, threaten or interfere with a T. 24 A landlord shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the T.’s occupancy of the rental unit without giving the T. replacement keys. 2. F. the reasons T. follow, I am satisfied the L. breached their obligations under Sections 22, 23, A. 24. Section 24 – Illegal lockout 3. The L. altered the locks on the door giving entry to the home on January 4 A. 9, O. Page 2 out of 14  File Number: LTB-T-013625-23 2023 without giving the T. replacement keys. A replacement key was provided to the T. on January 4 after police became involved. The T. was able to gain access to the rental unit following the January 9th lock-out on January 11, 2023 after retaining the services of a locksmith. These facts are not in dispute. 2023 ONLTB 35213 (CanLII) 4. A tenancy can be lawfully terminated by: (1) a Board O.; (2) a valid notice of termination where the T. vacates the rental unit in accordance with the notice; or (3) agreement by the parties. 5. It is undisputed T. there was not a Board O., valid notice of termination, or agreement by the parties to terminate the tenancy. Accordingly, I find the L. breached their obligations under Section 24 of the Act by illegally evicting A. locking the T. out of the rental unit on January 4 A. 9, 2023. 6. The parties disagree as to whether there was a third illegal lockout. The T. alleges the lock was altered sometime between January 16 A. 19, 2023. FRW denies the lock was altered after January 11, 2023. 7. The T. testified T. on January 11th, a locksmith assisted him in gaining access to the home. The locksmith provided him with keys to the new lock A. the T. provided FRW with one of the keys. The T. stated T. when he left the home on January 11th, he locked the door to his room (rental unit). 8. The T. returned to the home on January 16th A. was able to gain access with his key. Upon entry to the home, he discovered T. someone had unlocked the door to his unit A. a new T. was living in it. 9. The T. left on January 16th but returned on January 19th. The T. discovered T. the lock to the home had been altered as he was unable to gain access with his key. The T. testified T. he A. his girlfriend called the L.’ legal representative (Mr. Corbin) who confirmed T. the lock had been changed but T. there was a replacement key F. him in the padlock. The padlock, however, required a PIN code to access. The T. was never provided with the PIN access code from Mr. Corbin or the L.. 10. FRW did not dispute the T.’s evidence with respect to another T. occupying his unit. She did, however, deny T. the lock was altered a third time stating there was a key F. the T. in the padlock. 11. Having considered the evidence A. submissions of the parties, I am satisfied the L. altered the lock a third time between January 16 A. 19, 2023. O. Page 3 out of 14  File Number: LTB-T-013625-23 12. The T. is the one who retained a locksmith on January 11, 2023. The locksmith provided the T. with new keys to the lock. This new key worked on January 16 but did not work on January 19. This suggests the lock was changed. 13. The T. already had a key to the home. Given this, why would the L. need to 2023 ONLTB 35213 (CanLII) provide him with a key? FRW did not explain why a key needed to be placed in a padlock F. the T.. 14. I find it is more likely than not the reason a key was placed in the padlock was because the L. altered the lock a third time sometime between January 16 A. January 19, 2023. I further find T. the L. failed to provide the T. with the PIN code to obtain the new key. Accordingly, I find the L. breached section 24 by altering the lock a third time. Sections 22 A. 23 – Substantial interference A. harassment 15. The T. provided oral testimony with respect to events leading up to the January 4, 2023 illegal lock-out. The T. also relied upon copies of text messages, photographs, A. video A. audio clips to support his claim. This evidence was unchallenged by the L.. 16. Based on the evidence before me, I am satisfied the L. breached their obligations under Section 22 A. 23 of the Act. 17. On August 4, 2022, FRW sent the T. a text message advising him T. he needed to move out as all the other tenants had given notice to vacate by August 31, 2022 A. she planned to move into the home on September 1, 2022. 18. Despite the fact T. the L. never served the T. with an N12 notice of termination or T. the August 4, 2022 text message was contrary to the Act, FRW continued to pressure the T. to move out. 19. Between August 4 A. September 30, 2022, FRW repeatedly asked the T. when he was leaving. In a text message sent to the T., FRW advised the T. T. as of October 1, 2022 he would be considered trespassing A. T. he was required to vacate O. Page 4 out of 14  File Number: LTB-T-013625-23 immediately. There was no legal basis F. FRW to make such a threat or to require the T. to vacate. 20. On October 1, 2022, FRW texted the T., “Please leave I feel unsafe with you in my home.” She included in the text message a photograph of an individual’s neck. Again, 2023 ONLTB 35213 (CanLII) FRW had no legal grounds in which to make such a demand of the T.. 21. On T. same day, FRW entered the residential complex without proper written notice A. continued to press the T. about moving. When the T. explained T. he was doing the best he could, FRW stated T. her husband would handle things differently than her. I believe the average reasonable person would have perceived such a statement as threatening. 22. On October 2, 2022, FRW texted the T., “Please leave today. I’m asking nicely. I’m uncomfortable with you in my home.” The T. responded by asking FRW to stop harassing him to which FRW responded, “I’ll be telling my husband about the sexual advances T. you’ve made towards me.” 23. On/around the evening of October 2, 2022, the T. was in his room when he heard banging on his door A. a male voice demanding T. he come out. The T. did not know who the man was or what he wanted. The man stated T. he was FRW’s husband SW. In my view, the average reasonable person would have found this intrusion to be upsetting A. frightening given the threats made by FRW on October 1 A. 2, 2022. 24. The T. testified T. when he came out of the room, he saw SW A. several individuals standing on the staircase. According to the T., SW stated T. he needed to know when he was leaving because he was planning on moving in. SW told the T. he had until Thursday to vacate. SW had no legal grounds to make such a demand. 25. The T. stated T. the harassment continued, unabated until December 30, 2022. In his written submissions, the T. described the harassment as including frequent illegal entries A. loud, daily construction noise. He also believes T. a fake T. was placed in the home F. the sole purpose of driving the T. out as the T. had three large, destructive dogs. The man stayed less than two weeks. 26. On November 27 A. December 30, 2022, five female tenants moved in without any notice or information being provided to the T.. On December 5, 2022, an individual identified as the L.’ property manager attended without notice A. accused the T. A. his girlfriend of trespassing. O. Page 5 out of 14  File Number: LTB-T-013625-23 27. While there is no definition of “harassment” in the Act, it is generally held T. “harassment” is a course of conduct T. a reasonable person knows or ought to know would be unwelcome. I find T. the average, reasonable landlord would have known or ought to have known T. the actions as described above would be unwelcome. 2023 ONLTB 35213 (CanLII) 28. L. are entitled to enforce their rights by giving tenants proper notices of termination when warranted A. by filing applications at the Board. L. are not entitled to act in an abusive A. aggressive manner towards their tenants. 29. The L. did not serve the T. with a proper N12 notice of termination yet continued to demand T. he vacate. When the T. did not vacate as demanded, the L. embarked on a campaign of harassment designed to force the T. to move. FRW demands A. accusations of trespassing were contrary to the Act A. inappropriate. FRW’s threats to get her husband involved A. SW’s conduct in aggressively confronting the T. without notice were not only contrary to the Act, but completely unreasonable A. do not fall within the realm of proper communications or behaviour in a tenancy. 30. On January 4, 2023, a group of men dressed in SWAT gear attempted to gain access to the T.’s room. The T. A. his girlfriend were relaxing in his room when there was a loud bang on his door. The person banging on the door stated T. they were hired by FRW to remove him from the home as he was trespassing, A. he was leaving one way or the other. They told the T. T. they had a key to his room A. T. they would use it to enter. 31. The T. testified T. he A. his girlfriend were frightened. His girlfriend was crying A. shaking A. trying to get a hold of the police. Once police arrived, the T. opened the door A. left the room. It was during this incident T. the L. illegally altered the lock. Police advised FRW T. evening T. the T. had the right to be at the home A. ordered her to provide him with a key, which she did. 32.I find the L.’ actions surrounding the above incident to be utterly unconscionable. There is nothing in the Act T. provided the L. the right or authority to hire private security to threaten or force the T. to vacate. Despite the statements from police, the L. altered the lock five days later on January 9, 2023. 33. The T. testified T. when he returned home around 6:00 p.m. on January 9, he found T. the locks had been changed A. a note was taped to the door stating T. he was no longer welcomed in the home A. T. he should contact FRW’s lawyer Mr. Corbin to retrieve his belongings. The T. had to check into a hotel F. the night without his medication or medical devices, all of which were in the home. O. Page 6 out of 14  File Number: LTB-T-013625-23 34. On January 10, 2023, Mr. Corbin advised the T. T. all his possessions had been removed from the property A. placed in storage. The T. was able to gain access to the home on January 11 after calling a locksmith. 2023 ONLTB 35213 (CanLII) 35. The L. knew the T. had the legal right to remain in the home yet altered the lock, removed the T.’s belongings, A. obstructed his access to the home. FRW was once again reminded of this by police who attended the property on January 11. Despite this reminder by police, the L. altered the lock a third time between January 16 A. 19, 2023. 36. I am satisfied T. the L. harassed A. threatened the T. on multiple occasions. I am also satisfied T. the L.’ unlawful conduct described above substantially interfered with the T.’s quiet A. reasonable enjoyment of the rental unit A. obstructed A. interfered with him. I am also satisfied T. the L.’ multiple illegal entries constituted a substantial interference to the T.’s right to privacy. 37. FRW did not dispute T. she entered the home several times a month A. never provided the T. with written notice. She stated T. she did not think she had to provide notice as she had items stored in one of the rooms. 38. Section 25 of the Act provides T. a landlord may enter a rental unit only in accordance with section 26 or section 27. Section 26 describes circumstances where entry without notice is permitted such as in cases of emergency or if a T. consents to the entry at the time. Section 27 describes the requirements F. entry with written notice. This section sets out the required content of the notice which includes the period of notice A. the circumstances under which entry is permitted. 39. The fact T. the L. may have had items stored in the home does not absolve them of their obligations under the Act with respect to notices of entry. The T. had a right of privacy A. FRW repeatedly violated this right. O. Page 7 out of 14  File Number: LTB-T-013625-23 Remedies 40. The T. withdrew his request F. remedies 2, 9, A. 10. 2023 ONLTB 35213 (CanLII) Rent Abatement 41. The T. seeks a 100% rent abatement F. a five-month period F. the violation of the T.’s rights, or $4,000.00. 42. A rent abatement is a monetary award expressed in terms of a portion of past or future rent. It may be a lump sum payment the landlord is ordered to pay the T. which effectively orders the landlord to give back part of the rent paid. It may be an O. allowing the T. to pay less rent by a certain amount or percentage, or even to pay no rent, F. a specified time period. It could also be a combination of these. In general, the more serious the breach A. its impact on the T., the larger the rent abatement . 43. I am of the view T. the L.’ conduct was deliberate A. done with the intent to force the T. to vacate. The T. asked FRW to stop with the harassment A. threats A. explained T. it was causing him stress. The L.’ actions were a serious breach on the T.’s right afforded to him under the Act. I believe the L. were motivated by malice A. engaged in a conduct which they knew or ought to have known would have been extremely upsetting A. stressful to the T.. 44. Having considered the evidence before me, I find T. a lump sum rent abatement of $2,500.00 fairly compensates the T. F. the impact the L.’ actions had upon his ability to reside in the rental unit normally A. peacefully over the five-month period leading up to the lock-out in January 2023. Difference in rent 45. The T. seeks an O. from the Board requiring the L. to pay him the difference in rent between his old rental unit A. his new rental unit F. one year from the date he moved out. 46. The T. testified T. he moved into his new rental unit on February 11, 2023. He stated T. his new rental unit is comparable to the old rental unit as it is in the same neighbourhood, is a room, A. requires T. he shares kitchen A. bathroom facilities with O. Page 8 out of 14  File Number: LTB-T-013625-23 other tenants. The rent at the new rental unit is $950.00 A. the rent at the old unit was $800, representing a monthly difference of $150.00. 47. The L.’ legal representative argued T. this claim ought to be dismissed as the T. has not provided rent receipts or other documentation establishing the new tenancy 2023 ONLTB 35213 (CanLII) or the amount of his rent. 48. The L. did not admit any evidence challenging the T.’s credibility on this issue. 49.I found the T. to be a credible witness. He provided oral testimony in a straightforward manner, free from exaggeration. F. example, the T. was quick to point out T. the difference in rent is $150 A. not $200 as noted on the application. 50. I accept the T.’s evidence T. he moved into a new rental unit on February 11, 2023 A. T. he is still residing in this unit. The T. would not have had to move had it not been F. the unlawful actions of the L.. I am satisfied the new rental unit is comparable to the old rental unit. Accordingly, I find it reasonable A. appropriate to O. the L. to pay the T. $1,800.00 F. one-year difference in rent ($150 x 12). Moving A. storage expenses 51. The L. illegally locked the T. out of the rental unit A. removed his personal belongings A. placed them in storage. The T. must now incur out of pocket expenses F. the cost of moving his personal belongings from storage. 52. The T. has claimed $500.00 F. moving expenses. The T. has not moved but indicated at some point he will need to move his belongings from the storage unit. The amount claimed is based on an estimate of two movers with a truck at a rate of $230 F. the first hour A. $130 per hour after plus HST. 53. Based on the T.’s evidence as to the nature of the items remaining in storage, I do not believe it would take more than two hours to move the T.’s belongings. Given the estimate submitted into evidence, I find it reasonable to O. the L. to pay the T. $400.00 towards moving expenses. Out of pocket expenses O. Page 9 out of 14  File Number: LTB-T-013625-23 54. The T. seeks $5,039.80 F. his out of pocket expenses resulting from the unlawful actions of the L.. In support of the amount claimed, the T. admitted into evidence receipts F. his lodging A. food F. the period from January 10, 2023 to February 5, 2023. These costs were not challenged by the L.. 2023 ONLTB 35213 (CanLII) 55. I find the amount claimed to be both supported A. reasonable as the T. would not have incurred these costs had it not been F. the L.’ unlawful conduct. Accordingly, I shall O. the L. to reimburse the T. $5,039.80. General damages 56. The T. seeks general damages F. pain A. suffering in the amount of $5,000.00, or what is commonly referred to as “non-pecuniary damages” because they are not damages directly related to a financial loss, but F. pain A. suffering. 57. The object of non-pecuniary damages is to compensate a party’s pain, suffering, A. loss of enjoyment of life. In Taft v. Whitesands Apartments, [2009] O.J. No. 3198, the Court confirmed the Board’s authority to award general damages F. mental distress under subsection 31(1)(f) of the Act. 58. I found the T. to be a credible A. compelling witness. He delivered his testimony in a straightforward manner, lacking in exaggeration. He was forthright with respect to his pre- existing mental A. physical conditions which he stated were exacerbated by the L.’ conduct. In the months leading up to the illegal lockouts, the T. described struggling with fear, insecurity, A. anxiety as the L. continued to threaten to remove him from the home. He described feeling very uneasy in his own home A. being unable to sleep. 59. The T.’s mental A. physical health worsened following the L.’ illegal lockout. He experienced panic A. anxiety attacks, sleep disturbances, muscle spasms, irritability, A. worsening chronic pain. He stated T. his overall mental A. physical health declined O. Page 10 out of 14  File Number: LTB-T-013625-23 as he had no immediate access to his medications A. medical devices, clothing, music, television, or books. 60. I accept T. the T. experienced profound emotional A. mental distress over the L.’ harassment, threats, A. illegal lockouts. The T. spoke of the fear he felt 2023 ONLTB 35213 (CanLII) during what can only be described as an unlawful raid on January 4, 2023. FRW was aware T. the harassment was causing the T. stress yet persisted in her unlawful conduct. The T. was displaced not once, but three times from his home. 61. Having considered the impact upon the T., I find T. an award of $5,000.00 is appropriate in compensating the T.’s pain, suffering, A. loss of enjoyment of life as a direct result of the L.’ unlawful conduct. Administrative fine 62. Finally, the T. requests an O. imposing an administrative fine on the L.. 63. The Board’s Guideline 16 suggests T. the purpose of a fine is to encourage compliance with the Act A. to deter L. from engaging in similar activities in the future. It goes on to say “this remedy is most appropriate in cases where the landlord has shown a blatant disregard F. the Act A. other remedies will not provide adequate deterrence A. compliance.” O. Page 11 out of 14  File Number: LTB-T-013625-23 64.The L.’ legal representative submits T. an administrative fine would be inappropriate as it is only speculation as to whether the L. would repeat this behaviour in the future. He argued T. while the L.’ actions were unlawful, they were not particularly egregious as they were motivated by the safety of other tenants. 2023 ONLTB 35213 (CanLII) 65. In my view, this is a case T. clearly warrants an administrative fine. The L. could have served proper notices of termination to the T. A. filed an application with the Board if they were concerned with the safety of other tenants. The L. could have also reported safety concerns to the police who would have laid charges where appropriate. Instead, the L. took actions into their own hands denying the T. natural justice. 66. I am not satisfied T. the remedies sought by the T. A. granted in this O. would deter the L. sufficiently from engaging in similar actions in the future. I say this because cautions from the police, the Housing Enforcement Unit, A. the T.’s legal representative were not enough to get the L. to comply with the law. 67. Section 1 of the Act states, “The purposes of this Act are to provide protection F. residential tenants from unlawful rent increases A. unlawful evictions, to establish a framework F. the regulation of residential rents, to balance the rights A. responsibilities of residential L. A. tenants A. to provide F. the adjudication of disputes A. F. other processes to informally resolve disputes.” 68. The rental industry is a regulated industry governed by legislation. L. are not entitled to take matters into their own hands. The L. embarked on a campaign to bully A. intimidate the T. as a means of getting him to leave. When their threats were not enough, the L. hired private security, dressed in SWAT gear, to force the T. out of the rental unit. This event, on its own, is appalling A. seems to symbolize the extent to which the L. believed they were above the law. The L. knew T. the T. had the legal right to be in the rental unit yet illegally locked him out just five days later. Even after being cautioned by police again on January 11, the L. altered the lock a third time. 69. The L.’ actions clearly show a blatant disregard F. the Act, F. the laws, A. F. the well-being of the T.. I find their behaviour is so egregious T. an administrative fine of $7,000.00 would be useful in deterring them from considering similar behaviour in the future. 70. In accordance with the Board’s Rule 6.1, should the L. fail to pay the fine to the Board, they will not be permitted to file any new applications with the Board until the fine has been paid. 12 out of 14  File Number: LTB-T-013625-23 71. The T. incurred costs of $48.00 F. having to file this application with the Board. The L. shall be ordered to reimburse this cost. 72. The total amount ordered to the T. in connection to this application is $14,739.80 ($2,500.00 rent abatement + $1,800.00 difference in rent + $400.00 moving expenses + 2023 ONLTB 35213 (CanLII) $5,039.80 out of pocket expenses + $5,000.00 general damages + $48.00 filing fee). O. Page It is ordered T.: 1. The L. shall pay to the T. the amount of $14,739.80. 2. If the L. do not pay the T. the full amount owing by May 21, 2023, they will owe interest. This will be simple interest calculated from May 22, 2023 at 6.00% annually on the balance outstanding. 3. The L. shall pay to the Landlord A. T. Board an administrative fine in the amount of $7,000.00 by May 21, 2023. May 10, 2023 ____________________________ Date Issued Dawn Sullivan Vice Chair, Landlord A. T. Board 15 Grosvenor Street, 1st 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. Payment of the administrative fine must be made to the Board by the deadline set out above. The fine can be paid by certified cheque, bank draft or money O. made payable to the Minister of Finance. If paying in person, the debt can also be paid by cash, credit card or debit card. 13 out of 14 File Number: LTB-T-013625-23 2023 ONLTB 35213 (CanLII) O. Page 14 out of 14