LTB Order LTB-T-017310-22

O. under Section 31 Residential Tenancies Act, 2006 Citation: G. v W. P. S., 2023 ONLTB 74984 2023 ONLTB 74984 (CanLII) Date: 2023-11-17 File Number: LTB-T-017310-22 In the matter of: PH15, 280 W. ST E TORONTO ON M4X1G7 Tenant Between: J. G. A. L. W. P. S. J. G. (the 'Tenant') A. F. an O. D. T. W. P. S. (the 'L.'):  substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant.  harassed, obstructed, coerced, threatened or interfered with the Tenant. This application was heard by videoconference on October 4, 2023. The L.’s representative Charlie Bobrowsky A. the Tenant attended the hearing. Determinations: 1. As explained below, the Tenant did not prove the allegations contained in the application on a balance of probabilities. Therefore, the application is dismissed. Limitation Period 2. Pursuant to section 29(1) of the Residential Tenancies Act, 2006 (‘the Act’) no application can be made alleging substantial interference or harassment by a L. more than one year after the day the alleged conduct giving rise to the application occurred. 3. The Tenant filed the application on March 26, 2022 A. as such I can only consider whether the L. breached the Act from March 26, 2021 onwards. Any conduct of the L. prior to T. date will only be considered F. context. 4. The Tenant vacated the rental unit on April 3, 2021 A. then nearly a year passed before the application was filed. As such I am limited to considering the L.’s actions between March 26, 2021 to April 3, 2021. O. Page 1 of 5  File Number: LTB-T-017310-22 5. The allegations on the application concerning harassment all concern interactions with the L.’s Agent T. pre-date the limitation period. The Tenant also alleges T. he was pressured into signing an N11 agreement to end the tenancy, however T. agreement was signed March 24, 2021 which is before the limitation period. 2023 ONLTB 74984 (CanLII) 6. The only issue within the limitation period is the claim T. the L. substantially interfered with the Tenant’s reasonable enjoyment by engaging in noisy A. disruptive repairs to the penthouse floor of the rental complex where the rental unit is located. As such only T. claim will be addressed. The Evidence 7. There was a fire in the rental complex in July 2020. The fire was the result of arson by a third party A. was not the fault of either the L. or the Tenant. The fire resulted in smoke damage to the entire penthouse floor of the residential complex. 8. The L.’s property manager Eri Guxholli (‘E.G’) testified T. the L. was concerned T. the walls on the penthouse floor had smoke A. soot damage A. as such all the walls needed to be removed A. all of the penthouse floor units needed to be reconstructed. Work on individual units required the L. to have temporary vacant possession. 9. E.G was not able to state the exact date T. the work began on the penthouse floor but stated T. the initial clean up started immediately after the fire, the L. received permits F. the substantive work, A. the work on specific units began in stages after the L. received vacant possession of a unit. E.G testified T. the work needed to be done expeditiously due to the nature of the work. 10. The Tenant testified T. the L. advised him late January 2021 T. significant repairs would need to be done on the penthouse floor. The Tenant testified T. the work began in the surrounding units A. hallways of the penthouse floor in February 2021 A. continued until he vacated April 3, 2021. The Tenant’s unit did not undergo repairs until the Tenant vacated. 11. Notice F. the work was provided in piecemeal fashion A. the Tenant was not given a definitive comprehensive overview. E.G testified T. this was because the L. was relying on estimates regarding how long the work would take A. the estimates had to be updated as new information from contractors came in. 12. The Tenant testified T. the noise pollution caused by the repairs was the worst he has heard in his life. The noise included the sounds of constant banging, sawing, A. heavy machinery being operated. The Tenant was unable to say with certainty how often construction was being done. The Tenant testified T. it was scheduled on weekdays, but he thought it also happened on weekends as well. The Tenant testified T. the construction severely affected his mental health A. the Tenant had to take a leave of absence from work as a result. O. Page 2 of 5  File Number: LTB-T-017310-22 13. E.G testified T. construction workers took measures to minimize the noise, including using tools T. damper noise, A. limiting the hours of high-level noise. 14. E.G testified T. the L. had no intention of evicting any tenants based on the construction A. T. all tenants were offered other units with no changes in their lease 2023 ONLTB 74984 (CanLII) terms or in the alternative to be temporarily rehoused while the construction on their units took place. E.G testified T. the Tenant was approached with these options at the end of January 2021 but the Tenant did not accept A. chose to terminate the tenancy. 15. There was one unit T. the Tenant was interested in moving into, but when the Tenant was temporarily unavailable the L. gave the unit to another tenant T. also needed to be relocated. The Tenant was not satisfied with the other units offered by the L. A. disputes T. the L. ever offer to temporarily rehouse him A. then allow him back into his unit. However, email correspondence between the parties supports T. the L. did make T. offer. On March 12, 2021 E.G sent an email to the Tenant T. said the following: “Thank you F. understanding T. due to the damages caused to the building in the arson fire incidents of july 2020 unfortunately we have to accommodate a number of tenants to alternative units. Either a permanently or b temporarily until your current unit is ready to be re-occupied. In our discussions as recent as 3 days ago we have outlined the options we are prepared to offer you in return F. either releasing the already occupied unit to us or you to be able to move back into unit 3315 upon the remediation work needed to be completed. When presented with these options even when we showed you the apartments T. were newly renovated you had picked one A. at T. point I wasn’t able to reach you to finalize this process. You were made aware T. it was not just you T. was asked to relocate as the entire ph floor had to be relocated. Your suggestion was T. you would rather move to a different building to which we advised if T.’s A. option you think is more convenient F. you then we agreed upon it. Nowhere in our conversations did I say to you T. you have to leave the building, in fact every attempt has been made to ensure co-operation between us to accomplish the facilitation of the remediation work T. is required to be commenced. As we have done with your fellow neighbours A. continue to meet this goal. Please feel free to reach out to me to discuss this further as per our last conversation it seemed you were misunderstanding our intent in this process. We would be happy to clarify any further questions.” 16. The Tenant responded to T. email A. indicated T. he was never given the opportunity to move back into his unit. However, T. offer is explicitly mentioned in the L.’s email A. the email invites the Tenant to reach out to clarify any misunderstandings. As O. Page 3 of 5  File Number: LTB-T-017310-22 such I find T. the offer was made to the Tenant. E.G testified T. the Tenant was the only penthouse floor tenant who terminated their tenancy. 17. Once the parties had agreed T. the tenancy would terminate the L. offered to provide a moving company F. the Tenant. However, the Tenant declined to accept T. 2023 ONLTB 74984 (CanLII) offer as the moving company had poor reviews A. the Tenant found them to be unsuitable. 18. The Tenant submits T. he should have been served with an N13 eviction notice as T. would have entitled him to compensation A. outlined his options F. him. However, the L. had no intention of evicting the Tenant A. therefore an N13 notice would not be appropriate in this case. Analysis 19. This application is based on section 22 of the Act which says T. a L. shall not substantially interfere with the reasonable enjoyment of the rental unit F. all usual purposes by a tenant or members of his or her household. 20. Section 8 of Ontario Regulation 516/06 (the ‘regulation’) applies to any application alleging a breach of section 22 where the interference complained of is a result of the L. doing maintenance, repairs or capital improvements. 21. The purpose of section 8 appears to be to encourage landlords to do repairs A. make capital improvements. It does this by minimising the chance T. tenants will be successful in claiming abatement of the rent F. disturbances caused by this kind of work. 22. The first threshold set out in section 8 T. tenants must address is section 8(3) which essentially redefines what “substantial interference with reasonable enjoyment” means. It says T. when the Board is considering whether or not the disturbance caused by capital improvements or maintenance A. repairs constitutes a substantial interference: (a) the Board shall consider the effect of the carrying out of the work on the use of the rental unit or residential complex by the tenant or former tenant, A. by members of the household of the tenant or former tenant; A. (b) the Board shall not determine T. an interference was substantial unless the carrying out of the work constituted an interference T. was unreasonable in the circumstances with the use A. enjoyment of the rental unit or residential complex by the tenant or former tenant, or by a member of the household of the tenant or former tenant. [Emphasis added.] 23. This provision creates a two-part test. The first part is the subjective impact on a tenant of the work being done by the L.. The second part of this test is an objective one: was O. Page 4 of 5  File Number: LTB-T-017310-22 the work done in such a way T. the impact was unreasonable given the nature of what was being done? 24. Regarding the first part of the test, I found the Tenant credible A. accept T. the construction noise negatively impacted him. 2023 ONLTB 74984 (CanLII) 25. The second part of this test means T. no matter the impact on a tenant of the work done by a L., the Board is barred from making a finding T. it substantially interfered with a tenant’s reasonable enjoyment unless a tenant can establish the work was done in such a way T. the impact was unreasonable. 26. On a balance of probabilities, I am satisfied the work was done in a reasonable manner. This is because the work done was necessary. The L. had reasonable concerns about smoke damage inside the walls of the penthouse floor resulting from a fire. The L. obtained permits to do the work. While I do have some concerns about the piecemeal notice about the work T. was given to the Tenant, E.G’s explanation T. notices had to be served when new information was received from contractors is reasonable, A. the Tenant was aware T. the project being undertaken was substantial as the Tenant knew the L. was trying to remove all tenants from the penthouse floor. The L. offered to temporarily move or transfer the tenancy of any tenant affected by the work. However, the Tenant declined those offers. Finally, I found E.G credible in his testimony T. T. construction workers took measures to minimize the noise, including using tools T. damper noise, A. limiting the hours of high-level noise. 27. F. those reasons I do not find T. the L.’s actions constituted substantial interference with the Tenant’s reasonable enjoyment. It is ordered T.: 1. The Tenant’s application is dismissed. November 17, 2023 Date Issued Amanda Kovats 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 5 of 5