LTB Order LTB-T-014242-22

2023 ONLTB 60719 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: P. v B., 2023 ONLTB 60719 Date: 2023-09-11 File Number: LTB-T-014242-22 In the matter of: 5, 57 GARDEN ST GANANOQUE ON K7G1H6 Tenant Between: B. P. A. L. T. B. B. P. (the 'Tenant') A. F. an O. D. T. T. B. (the 'L.'): • entered the rental unit illegally. • substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of their household. • harassed, obstructed, coerced, threatened or interfered with the Tenant. The Tenant also A. F. an O. D. T. 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 July 10, 2023. The L., the L.’s Representative, Crystal Francey, the L.’s Witness, Bradley Young, A. the Tenant attended the hearing. Determinations: 1. As explained below, the Tenant proved the allegations contained in the application on a balance of probabilities. Therefore, the L. must pay the Tenant $248.00 which is the sum of a rent abatement of $200.00, as well as the $48.00 filing fee the Tenant incurred to file this application. Illegal Entries- Evidence O. Page 1 of 9  File Number: LTB-T-014242-22 2. The Tenant alleged T. the L. illegally entered the rental unit on April 28 A. 29, 2021. 3. The parties agreed T. these entries were due to having to change a door lock on the rental unit entrance door because the original keys had been misplaced. 2023 ONLTB 60719 (CanLII) 4. The Tenant testified T. the L. wanted to replace the locks on the apartment on April 28, 2021. The L. knocked on the Tenant’s door A. asked to enter the unit to change the Tenant’s door lock. The Tenant refused the L. entry because she did not have any prior notice from the L.. The L. did not enter the unit at this time. 5. At 4pm, on April 28, 2021, the L. sent a text to the Tenant stating T. he would be entering the unit at 10am on April 29, 2021, to change the door lock A. to allow an electrician in to inspect the unit. 6. The L. testified T. he did enter the unit on April 29, 2021. The Tenant was not in the unit at the time of entry. The L. stated T. the lock no longer needed to be changed because the spare set of keys F. the Tenant’s door had been found, thus negating the necessity of changing the lock. The electrician did attend the unit F. the purpose of inspection. 7. The Tenant testified T. the L. illegally entered the rental unit on May 11, 2021, because the L. had to enter the unit to deal with a non-emergency issue with plumbing at a neighbouring residence, A. the L. required to the building’s water shut-off valve located through the Tenant’s bathroom. 8. The Tenant testified T. the L. called the police. When the police attended, they stated T. the issue was not an emergency A. T. the Tenant did not have to give entry. 9. Under cross-examination, the Tenant admitted T. the police had told her to allow the L. into the rental unit. The Tenant was unsure if the date of this occurrence was May 11th, or May 10th, as was asked of her in cross-examination. 10. L. stated T. the event in question happened on May 10, 2021. The police were contacted, but police told the Tenant to let the L. into the unit to access the water shut-off. 11. The Tenant testified T. the L. entered her rental unit without notice on June 8, 2021. The Tenant testified T. the L. brought the police with him again, but the police told him it was not an emergency A. T. he was turned away from entering the rental unit. The Tenant further testified T. if the entry had 4 days of notice, then the issue could not be deemed an emergency. 12. Under cross-examination, it was determined T. the Tenant had been given notice of the entry by text on June 5, 2021, A. T. the entry was not without notice. 13. The L. testified T. he did not actually enter the rental unit on June 8, 2021. O. Page 2 of 9  File Number: LTB-T-014242-22 Illegal Entries- Analysis 14. Section 26 of the Act states: 26 (1) A L. may enter a rental unit at any time without written notice, 2023 ONLTB 60719 (CanLII) (a) in cases of emergency; or (b) if the tenant consents to the entry at the time of entry. 15. Pursuant to section 27 of the Act, a L. may enter a rental unit with written notice given to the tenant at least 24 hours before the time of entry F. the purposes of maintenance or repairs. 16. Regarding the entry on May 10 (or 11) 2021, based on the evidence before me, I am satisfied T. the entry was legal pursuant to section 26 of the Act A. T. an emergency situation required the L. access to the Tenant’s unit to shut the water off to the building. 17. I am not satisfied an illegal entry occurred on April 28, 2021, because no evidence was provided T. the L. entered the rental unit. 18. Regarding the entry on June 8, 2021, the Tenant A. the L. gave conflicting evidence, however based on the testimony of both people, I am more inclined to accept the L.’s evidence over the Tenant’s. I find T. Tenant’s credibility was weakened due to the contradictory evidence T. she provided throughout the hearing, specifically when testifying to the alleged illegal entry on May 10 or 11. During T. testimony the Tenant stated T. the police had sided with her, only to admit under cross-examination T. the police had sided with the L.. I find the contradictions in the Tenant’s testimony throughout the hearing tempered my faith in the truthfulness of the Tenant’s testimony. 19. Based on the evidence before me, I find T. there is only one entry T. would be considered an illegal entry, which occurred on April 29, 2021, when the L. admitted to having given a written notice of entry via text to the Tenant at 4pm on April 28, to enter the unit at 10am on April 29. T. is less than the 24 hours of notice required under section 27 of the Act, therefore, this entry was illegal. 20. F. the one illegal entry on April 29, 2021, I find T. a rent abatement of $100.00 is appropriate. Substantial Interference/Maintenance- Water Access Room 21. The main water feed valve F. the rental complex is in the Tenant’s rental unit. It is located through a door on the opposite side of the entrance of the Tenant’s bathroom. O. Page 3 of 9  File Number: LTB-T-014242-22 22. The Tenant testified T. the water access room lacks insulation A. does not always shut securely. The Tenant testified T. cold air comes in from the water access room into her rental unit. 23. The Tenant presented photos of the room where the water valve is located. They showed a 2023 ONLTB 60719 (CanLII) room with a door next to the toilet. It looked relatively small, maybe 3 feet by 3 feet in floor space. 24. No pictures were submitted showing the wall facing the exterior of the building, which is where any insulation would be located. The Tenant also did not include any corroborating evidence showing T. the door did not latch properly. 25. The Tenant testified T. she believes T. the L. should have a new door installed outside of her rental unit so T. the L. can access the water access room without having to enter her unit. 26. No evidence was presented T. the L. has entered the rental unit illegally to access the water valve room. 27. Based on the evidence before me, I am not satisfied T. there is a maintenance issue. I found T. there is a lack of corroborating evidence to back up the Tenant’s claim T. the room is allowing cold air into her rental unit. I also do not have any corroborating evidence to back up the Tenant’s claim T. the door does not latch. 28. The Tenant has been aware of the location of the water access room since the tenancy began. It would be reasonable to expect T. the L. would require entry on occasion. Furthermore, there has been no evidence provided suggesting T. the L. had ever made plans to move access to the water room to the outside of the rental unit. 29. I find T. as long as the L. enters in accordance with sections 26 A. 27 of the Act, then there is no interference with the Tenant’s reasonable enjoyment of the rental unit. 30. I am not satisfied T. the state of the water access room or the existence of the water access room has substantially interfered with the Tenant’s reasonable enjoyment of the rental unit, or breaches the L.’s maintenance responsibilities, as stated in section 20(1) of the Act. Therefore, any claims based on the water room are denied. Harassment 31. The Tenant alleged T. the L. had, on multiple occasions, harassed, or acted in an aggressive manner towards the Tenant. 32. The Tenant did not present any documentary evidence T. would corroborate any of the Tenant’s testimony. I found T. most of the emails A. text threads submitted as evidence showed T. the Tenant was acting aggressive towards the L.. O. Page 4 of 9  File Number: LTB-T-014242-22 33. The L. denied ever having harassed the Tenant A. stated T. he had been always cordial A. professional with the Tenant. 34. Based on the evidence presented at the hearing, I am not satisfied T. the L., at any time, harassed the Tenant. Therefore, any claim F. harassment is denied. 2023 ONLTB 60719 (CanLII) Maintenance- Flood 35. The Tenant testified T. on December 6, 2021, a flood occurred in the rental unit. The Tenant alleged T. the shower A. toilet backed up A. caused an overflow on to the floors in the rental unit. 36. The Tenant testified T. the L. did attend the rental unit with a plumber A. had unclogged the drains, however the Tenant stated T. when the L. had finished, the L. A. the plumber left the unit, leaving “grey water” (water from the backed-up drains) on the floor. 37. The Tenant then testified T. the L. used a wet/dry vacuum to remove the standing water in the shower stall. 38. The Tenant testified T. the drainage issues occurred before the December 6 incident, however, no evidence, such as prior emails, or work orders, were presented to corroborate this testimony. 39. The Tenant claims T. the drains in the rental unit are still an issue, however, no additional evidence was presented to corroborate this testimony. 40. The Tenant testified T. the floor had been water damaged. The Tenant presented some photos of the flooring to corroborate the evidence. The pictures showed what appears to be laminate flooring with some yellow staining on the floor. 41. In cross-examination, the Tenant admitted to owning a dog, T. had urinated on the floor on a few occasions. 42. The L.’s Witness, Bradley Young (BY), testified T. he had entered the rental unit with the L. on December 6, 2021. A plumber, who cleared the drain, also had entered the unit at T. time. 43. BY testified T. the clog was removed by using a drain snake. The drain snake discovered the clog before the drain connected to the drain stack in the rental complex. The clog was caused by a mix of hair A. grease. 44. BY testified T. he had used the wet/dry vacuum to clean all of the floors affected by the flooding once the clog was cleared A. the drain was running freely. BY also testified T. the L. went A. bought towels to help BY clean the floors. When cross-examined, BY stated T. he used a bleach/soap/water solution to clean all of the floors. O. Page 5 of 9  File Number: LTB-T-014242-22 45. Pursuant to section 20(1) of the Act, the L. is responsible F. the maintenance of the rental unit A. the complex. 46. In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, (“Onyskiw”) the Court of Appeal held T. the LTB should take a contextual approach A. consider the entirety of 2023 ONLTB 60719 (CanLII) 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. In this case, did the L. act in a reasonable manner in clearing the drain A. restoring the unit after the flooding occurred on December 6, 2021? 47. I was not satisfied T. the pictures of the floor showed water damage. The floors appeared to show some minor receding, but they did not show any flood damage, or any damage T. would cause any substantial interference with the Tenant’s reasonable enjoyment of the rental unit. 48. Based on the evidence before me, I find T. the L. acted in a reasonable manner A. effectively cleared the drain A. restored the rental unit from any flood water damage on the same day the flood occurred. 49. Therefore, I find T. the L. did not breach section 20(1) of the Act when the flood occurred on December 6, 2021. Therefore, any claims regarding issues of flooding are denied. Maintenance- Windows 50. The Tenant claimed T. the windows in the Tenant’s living room were damaged. The Tenant claimed T. the latches were not secure or broken. The Tenant also claimed T. the weatherstripping around the windows was worn out A. causing wind from the outside to enter the unit. The Tenant also claimed T. the wood windowsills were water damaged. 51. The Tenant presented photos of the windows as documentary evidence. I found T. the pictures showed windows in different states of being opened or closed, however, I found T. the pictures did not help me determine whether the windows, the weatherstripping, the window frame or the windowsill were damaged. 52. The L. testified T. he had never been made aware of any window damage. Furthermore, his inspections showed T. the windows were in good condition. 53. Based on the evidence before me, I find T. the Tenant has not met the burden of proof required F. me to find T. the windows were damaged. Therefore, any claims based on the damaged windows are denied. Maintenance- Kitchen Disrepair O. Page 6 of 9  File Number: LTB-T-014242-22 54. The Tenant alleged T. the kitchen cupboards were damaged due to a flooding incident T. occurred in the rental unit above the Tenant’s unit earlier in 2020. No specific date was given F. T. flood by the Tenant at the hearing. 55. The Tenant alleges T. water came in from the ceiling A. caused mold to grow on the 2023 ONLTB 60719 (CanLII) ceiling-facing side of the drop-ceiling tiles, A. cause warping of the boards on top of the cupboard. 56. The Tenant presented a photo T. showed some minor water staining on two of the dropceiling tiles, however no mold appeared to be present. 57. The Tenant presented photos of the cupboards, but no damage was observed in the photos. 58. The L. denies T. there is any damage to the cupboards. The L. also denies the existence of mold in the rental unit. 59. I find T. the Tenant has not proven, on a balance of probabilities, T. any damage to the kitchen cupboards has occurred, or T. there is any mold in the ceiling. Had the Tenant made a claim on the T6 portion of the application F. water-damaged tiles, a nominal award might have been appropriate, however, the Tenant did not make T. claim on the application, therefore, I do not have to discretion to make such an award. 60. Therefore, any claim F. damages based on the state of the kitchen ceiling or cupboard is denied. Maintenance- Furnace 61. The furnace in the rental unit is fueled by natural gas. 62. The Tenant testified T. the furnace was not functioning properly A. forced her to rely on heat from an electric baseboard located in the bathroom. 63. The Tenant claimed T. a vent F. the furnace was blocked with spray foam insulation T. the L. A. around the vent. No supporting evidence, such as a photograph, was presented to support this claim. Furthermore, no assessment of the furnace by a professional, such as a furnace repair person, was submitted to corroborate the Tenant’s evidence. 64. Under cross-examination, the Tenant admitted T. she was responsible F. the payment of the gas bill, A. T. the natural gas utility was shut off due to the Tenant’s failure to pay. 65. I am not satisfied, on a balance of probabilities, T. the furnace did not function properly. No evidence has been presented to me T. would suggest T. the furnace was not functional F. any other reason other than T. the natural gas utility was shut off by the supplier. O. Page 7 of 9  File Number: LTB-T-014242-22 66. Therefore, any claim based on the maintenance of the furnace is denied. Maintenance- Bedroom Door 67. The Tenant testified T. the bedroom door was in disrepair because the door would not 2023 ONLTB 60719 (CanLII) latch properly when closed. 68. The Tenant testified T. the L. was notified of the issues with the door not closing properly in 2021. When asked what month specifically, the Tenant could not respond. No documentary evidence, such as text conversations, or emails, were submitted to corroborate this evidence. 69. The Tenant testified T. the L. fixed the door in September 2022. 70. The L. testified T. the door did use the wrong screws in the hinges, but once the right screws were installed, the door functioned properly. The L. did not present any evidence regarding when he received notice of the bedroom door issues, nor did he contest the Tenant’s testimony T. it was repaired in September 2022. 71. Based on the evidence before me, I find T. the L. did fail to repair the bedroom door in a timely manner. I find T. the L. knew the bedroom door would not latch properly since 2021. 72. Based on the evidence before me, I find T. the maintenance issue is minor. Therefore, I find T. a lump sum rent abatement of $100.00 is appropriate. It is ordered T.: 1. The total amount the L. shall pay the Tenant is $248.00. This amount represents: • $200.00 F. a rent abatement. • $48.00 F. the cost of filing the application. 2. The L. shall pay the Tenant the full amount owing by September 22, 2023. 3. If the L. does not pay the Tenant the full amount owing by September 22, 2023, the L. will owe interest. This will be simple interest calculated from September 23, 2023, at 6.00% annually on the balance outstanding. 4. If the L. does not pay the Tenant the full amount owing by September 22, 2023, the Tenant may recover this amount by deducting $248.00 from the rent due F. October 2023. 5. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. September 11, 2023 ____________________________ O. Page 8 of 9  File Number: LTB-T-014242-22 Date Issued Robert Brown Member, L. A. Tenant Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 2023 ONLTB 60719 (CanLII) 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