LTB Order LTB-T-018059-22

2023 ONLTB 70924 (CanLII) O. under Subsection 30 Residential Tenancies Act, 2006 Citation: U. v Y., 2023 ONLTB 70924 Date: 2023-11-03 File Number: LTB-T-018059-22 In the matter of: 476 LOLITA GDNS MISSISSAUGA ON L5A2B2 Between: D. U. T. A. H. Y. L. D. U. (the 'T.') A. F. an O. D. T. H. Y. (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 October 4, 2023. The L., the T., A. the T.’s representative Michelle Mont attended the hearing. Determinations: 1. As explained below, the T. proved on a balance of probabilities T. the L. breached his maintenance obligations under the Act. Therefore, the L. must pay the T. $6,501.98 F. a rent abatement A. costs. 2. The T. moved into the rental unit on October 1, 2017 A. vacated April 30, 2022. The rental unit is a single-family home. Limitation Period 3. Much of the T.’s application concerns maintenance issues T. existed throughout her 5-year tenancy but were never resolved. However, section 29(2) of the Act establishes T. O. Page 1 of 7  File Number: LTB-T-018059-22 no application regarding a L.’s breach of their maintenance obligations can be made more than one year after the conduct giving rise to the application occurred. I note T. there is no similar limitation on conduct going forward from the date an application is filed. 4. This application was filed March 29, 2022. As such I can consider whether a breach 2023 ONLTB 70924 (CanLII) occurred A. whether a remedy is appropriate F. the period between March 29, 2021 A. the day the T. vacated April 30, 2022. I will however review the entire history of the maintenance issues F. context. Holes in the Roof – The Evidence 5. The T. testified T. since 2020 there were three holes in the roof of the rental unit. One of the holes was over the kitchen, one was over a bedroom, A. one was over the garage. Photographs taken on September 2, 2021 show multiple extremely large holes in the roof. 6. The L. testified T. there were holes in the rental unit roof during the tenancy. The L. testified T. the holes were caused because the T. was never home, A. T. someone needed to be on the property to chase animals away who were causing the holes. In an undated email the L. tells the T. T. maintaining the premises falls on the T.. 7. On September 10, 2021 the City of Mississauga issued a property standards O. which required the L. to repair all holes A. any other deficiencies on the roof in a workman like manner by October 25, 2021. Despite the work O., notes from a city inspector state T. one hole remained during a follow up inspection in January 2022. The City Inspector contacted the L. about the remaining hole A. the L. responded T. the hole was new as he fixed the previous ones. The T. testified T. is not true A. the hole T. remained was an old hole T. the L. never fixed. 8. The L. testified T. after the T. vacated he installed a steel roof over the existing roof to address the problem. Racoons A. Squirrels in the Attic – The Evidence 9. The T. testified T. there were racoons A. squirrels living in the attic throughout her tenancy. The T. testified T. at nighttime she would hear the animals screeching A. it scared her children because they feared the animals would come through the roof. On January 1, 2020 the T. sent the L. an email notifying him about the problem: “This is an emergency!!! The last few nights we are having really bad noises coming from the attic. My kids are scared… They are banging A. scratching inside the attic. It’s terrible. At first, I thought it was the wind or something but now is clear sound of scratching. O. Page 2 of 7  File Number: LTB-T-018059-22 10. The L. did not address the problem A. as such the T. hired a company who remove two racoons from the attic. This happened on January 21, 2020. Unfortunately, the T. testified T. this did not resolve the issue A. new racoons moved into the attic. 11. On August 12, 2020 the L. sent the T. the following email about the racoon 2023 ONLTB 70924 (CanLII) issue: “… I am sorry you are in the same trouble as before. In my last email re this, I warned you the animals will come again A. again if you believe the GUY who got them out the first time, saying to you they came through the chimney which is a flat LIE cause chimneys don’t have access to the attic. It has been the T.’s decision to want to live in detached house A. not in apartment A. I think he or she should know a few things about homes A. how things work. If you don’t heed my advice as how to deal with trades people re this there is no budget F. this. Your rent is already at least $500 per month below average. If I had to deal with the same problem, I would make it conditional on not only on chasing animals out but also fixing entry point most likely the fascia before “paying your bill”…” 12. In an email dated September 3, 2020 the L. tells the T. to have her children yell at the squirrels with their arms in the air A. T. if they do this the squirrels might understand T. they are not welcome. 13. As stated previously the City of Mississauga issued a work O. on September 10, 2021 requiring the L. to close up the holes in the rental unit roof. The L. did close some of the existing holes, however this created a new problem. On February 17, 2022 the T. informed the L. by email T. animals were trapped inside the attic A. T. those animals were screaming A. running around trying to find a way out. The L. did not address this problem. 14. On February 27, 2022 the T. again wrote to the L. about the animal problem in the attic. The L. responded A. said “try to find a room in the house to sleep where room does not have attic above it. Like downstairs A. recreation room under the bedrooms”. 15. On March 11, 2022 the T. informed the L. by email T. the squirrels broke through the vent above the stove A. got loose in the rental unit. This resulted in the T.’s children being terrified. The email also mentions T. this means the T. will not be able to cook A. T. she prays the situation will end. Photographs entered into evidence show a large hole in the kitchen vent. 16. On March 12, 2022 the L. sent the T. an email A. said: “We will need access to the home. Weather allowing. We can work only if the conditions are safe… in the meantime chase the squirrels out of the house.” O. Page 3 of 7  File Number: LTB-T-018059-22 17. On March 31, 2022 the L. sent another email to the T. A. said: “… I will only come when it safe to do so… I have suggested to you to sleep downstairs… As far as the kitchen is concerned, you tell me T. you cannot cook. You exaggerate. What does it take to plug the hole temporarily with a rag to avoid 2023 ONLTB 70924 (CanLII) dust coming through the hole? A. if you find it too dangerous to step on a chair, put your rag on a stick A. shove it there instead of me traveling 230 km or hire someone to do T. F. you. You are not only inflicting damage on the roof, but you are inflicting damage on me financially. The house is not a charity center…The damage inflicted on the roof with 8 holes already A. counting is because there is nobody at home F. at least 12 hours a day, including weekends, A. squirrels love peace A. quite to do their thing… Have you heard the fable about the boy who repeatedly cried ‘wolf’? 18. The T. testified T. the L. never addressed the issue of the animals in the attic A. T. the problem persisted throughout her tenancy. Leaks in Bathroom – The Evidence 19. The T. testified T. every time she used the bathtub in the rental unit’s main bathroom it would leak water into the basement. The T. notified the L. about the problem shortly after moving in A. again by text message on either May 1, 2020 or May 1, 2021. The T. testified T. this problem persisted throughout the tenancy A. was not resolved. The L. testified at the hearing T. the T. could have taken showers instead of baths. 20. Photographs T. were entered into evidence show significant water damage on the ceiling of the bathroom. The City of Mississauga issued a work O. on September 10, 2021 T. required the L. to repair the ceiling in a workman like manner. Photographs entered into evidence show the L. installed a grate over the damaged ceiling. It is not clear how this would fix the problem in any way. Leak in Kitchen Window – The Evidence 21. The T. testified T. every time it rained water would pour through the kitchen window. The T. testified T. it would take approximately an hour to clean up after a rainfall because of how much water would get in. Photographs introduced into evidence show water damage around the kitchen window. The T. mentioned the problem in an email to the L. on May 1, 2021. The L. told the T. to do the following to remedy the problem: “stuff some carton in your kitchen window to stop the warm kitchen air from touching the cold outside glass. This is where the water coming from. A piece of plastic larger O. Page 4 of 7  File Number: LTB-T-018059-22 than open side of the window A. sticky tape it to the frame inside. We will respond to this as soon as we can/allowed, we don’t want things to get worse. 22. The T. testified T. the L. never resolved the problem. 2023 ONLTB 70924 (CanLII) Leaking Water Metre – The Evidence 23. The T. testified T. she notified the L. T. the water metre was leaking sometime in 2021, but the L. never resolved the problem. Photographs show a bucket the T. had to place under the metre to collect leaking water. Analysis 24. Section 20 of the Residential Tenancies Act, 2006 (‘the Act’) establishes T. 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. 25. F. the following reasons, I find T. the L. failed to meet the L.'s obligations under subsection 20(1) to repair A. maintain the rental unit A. failed to keep the unit fit F. habitation. 26. The rental unit had holes in the roof between 2020 to September 2021. In response to a work O. from the City of Mississauga the L. patched up some of the holes, but one hole remained as of January 2022. T. hole was not fixed prior to the tenancy ending on April 30, 2022. 27. The rental unit attic had squirrels A. racoons from 2020 to the end of the tenancy. The L. did not address the problem at any point during the tenancy. The problem was exacerbated in March 2022 when the animals became trapped in the attic A. chewed through the vent in the rental unit kitchen. The animals got loose in the rental unit A. terrified the T. A. her children. 28. The shower in the rental unit bathroom A. the kitchen window leaked since at least May 2021. The L. never resolved these leaks. The L. was notified T. the rental unit water metre was leaking sometime in 2021, but the L. never resolved the problem. 29. I find T. the L.’s failure to address the animals in the rental unit attic A. the various leaks in the rental unit are a breach of his maintenance obligations. I also find the L.’s failure to address holes in the rental unit roof until September 2022, A. then the L.’s failure to sufficiently address the problem is also a breach of the L.’s maintenance obligations. O. Page 5 of 7  File Number: LTB-T-018059-22 30. It is clear from the correspondence between the parties A. the L.’s testimony at the hearing T. he believes it is the T.’s responsibility to maintain the rental unit. T. is incorrect. Section 20 of the Act establishes T. a L. is responsible F. providing A. maintaining a residential complex. 2023 ONLTB 70924 (CanLII) 31. 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. 32. I do not find T. the L. acted reasonably in the circumstances. He ignored the T.’s concerns about holes in the rental unit roof until the City of Mississauga issued a work O. A. even then the L. did not sufficiently address the problem. The L. did not address the animals in the attic A. made unhelpful suggestions to the T., such as she sleep in a different room A. to be home more to chase away the animals. The L. also did not fix the various leaks in the rental unit. 33. F. all of those reasons I find T. the L. breached their maintenance obligations under section 20 of the Act. Remedies 34. The T. seeks a 25% rent abatement F. a total of 13 months. This is the 12 months prior to the application being filed A. one month after it was filed before the T. vacated. 35. Abatement of rent is a contractual remedy based on the principle T. if you are paying 100% of the rent then you should be getting 100% of what you are paying F. A. if you are not getting T., then a T. should be entitled to abatement equal to the difference in value. 36. A rent abatement in the amount of 25% is typically awarded when there is some disruption to the T.’s normal ability to reside in the rental unit. The T. lived with holes in her roof, animals screeching in the attic, A. multiple leaks throughout the rental unit, I find a rent abatement of 25% to be reasonable in those circumstances F. the aggregate of all the problems experienced by the T.. 37. Twenty five percent of the monthly rent of $1,985.85 is $496.46. As such I will award a total rent abatement of $6,453.98 F. the relevant 13-month period. O. Page 6 of 7  File Number: LTB-T-018059-22 38. The T. also seeks to be reimbursed $450.00 F. the racoon removal she paid F. herself. However, this service was acquired outside of the limitation period of the application A. as such I cannot award it. It is ordered T.: 2023 ONLTB 70924 (CanLII) 1. The L. shall pay the T. is $6,501.98. This amount represents: • $6,453.98 F. a rent abatement • $48.00 F. the cost of filing the application. 5. The L. shall pay the T. the full amount owing by December 31, 2023. 6. If the L. does not pay the T. the full amount owing by December 31, 2023, the L. will owe interest. This will be simple interest calculated from January 1, 2024 at 7.00% annually on the balance outstanding. 8. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. November 3, 2023 ____________________________ Date Issued Amanda Kovats Member, L. A. T. 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 7 of 7