LTB Order LTB-T-018717-22

O. under Section 22 Residential Tenancies Act, 2006 Citation: C. v. C. 2023 ONLTB 22515 2023 ONLTB 22515 (CanLII) Date: 2023-03-30 File Number: LTB-T-018717-22 In the matter of: Basement, 45 WALDER AVENUE TORONTO ON M4P 2R7 Between: C. C. T. A. R. C. L. C. C. (the 'T.') A. F. an O. to D. R. C. (the 'L.') harassed, obstructed, coerced, threatened or interfered with the T.; 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; A., withheld or deliberately interfered with the reasonable supply of a vital service, care service, or food that the L. is obligated to supply under the tenancy agreement This application was heard by videoconference on January 10, 2023 at 12:01 p.m. The T. C. C. A. the L. R. C. attended the hearing. Determinations: Post Hearing Submissions 1. During the hearing, the T. attempted to rely on approximately 80 pieces of unlabeled submissions that were not organized in any logical manner A. which the T. was unable to identify in a timely manner during the hearing. I gave the T. an opportunity submit a table of contents with clearly labelled A. organized evidence after the hearing. While the T. did resubmit a portion of the evidence, approximately 8 unique documents, it was not organized as per the instructions provided. Despite these facts, I still considered the 7 text/photographic documents A. the single audio recording resubmitted after the hearing. Background 2. The residential unit is a 2-bedroom apartment in the basement of a 3-unit residential complex. There is a 3-bedroom unit on the main floor A. the L. lives on the top floor. There is also a yard which is considered common space. 3. The T. moved into the unit on May 2, 2021 A. moved out on August 31, 2021. O. Page 1 of 10  File Number: LTB-T-018717-22 4. The T2 application was filed November 14, 2021, alleging the following: a. The L. withheld or deliberately interfered with the reasonable supply of a vital service, namely the internet A. air conditioning, the L. was obligated to supply under the tenancy agreement. The T. sought $200.00 in compensation 2023 ONLTB 22515 (CanLII) F. undersupply of internet services. The T. withdrew their claim seeking compensation F. the cost of paint, as paint does not constitute a vital service. b. The L. harassed, obstructed, coerced, threatened or interfered with the T. over a series of arguments in person or through email A. an argument over termination of the tenancy. The T. sought a rent abatement. c. The L. substantially interfered with the T.’s reasonable enjoyment of the rental unit or residential complex over maintenance A. repair issues, an issue with respect to access to the backyard, common laundry room A. access to the internet. The T. sought a rent abatement, compensation with respect to the differentiation in rent from his new unit to his previous unit A. compensation F. moving expenses. 5. F. the reasons that follow, I find the T.’s harassment claims A. claims related to the L. withholding or deliberately interfering with the reasonable supply of a vital service should be dismissed. 6. As explained below, I am not satisfied on a balance of probabilities that the L. substantially interfered with the Tenants’ reasonable enjoyment of the rental unit or residential complex with respect to the T.’s claims related to maintenance A. repair issues or access to the backyard A. internet. Therefore, these claims are dismissed. 7. However, I am satisfied on a balance of probabilities that the L. substantially interfered with the T.’s reasonable enjoyment of the unit of residential by restricting the T.’s access to the laundry machine. Vital Services 8. The T. alleged the L. had withheld or deliberately interfered with the reasonable supply of a vital service, care service or food that they were obligated to supply under the tenancy agreement, specifically internet connectivity. The T. took the position that this same conduct substantially interfered with his reasonable enjoyment of the rental unit. 9. Section 21 of the Residential Tenancies Act, 2006 (the ‘Act’) addresses a L.’s duty not to withhold the reasonable supply of a vital service: (1) A L. 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, withhold the O. Page 2 of 10  File Number: LTB-T-018717-22 reasonable supply of any vital service, care service or food that 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. (2) F. the purposes of subsection (1), a L. shall be deemed to have 2023 ONLTB 22515 (CanLII) withheld the reasonable supply of a vital service, care service or food if the L. is obligated to pay another person F. the vital service, care service or food, the L. fails to pay the required amount A., as a result of the non-payment, the other person withholds the reasonable supply of the vital service, care service or food. 10. The Act defines vital services as:  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)  fuel  electricity  gas  hot or cold water 11. If the alleged interference concerns items that are not defined in the Act as a "vital service", such as air conditioning or internet service, then section 21 of the Act is not applicable. Therefore, I find the T.’s claims related to the L. withholding vital services are dismissed, but these issues are considered in the substantial interfere analysis below. Harassment May 2021 Argument 12. The T. testified that on May 7, 2021 an argument ensued with the L. when he requested the L. to take a look at the unit about some potential repairs. The T. further testified the L. reacted to his requests abruptly A. was being rude A. confrontational which made the T. feel uneasy. 13. The L. denied these allegations A. claimed if anything the T. was being mean, testifying she merely told him she would fix the items as soon as possible. The L. submitted a written statement from the other T. in the complex, Ron Hoffman, who was a witness to the events that substantiated the L.’s testimony. Cat Email in July 2021 14. The T. further testified on or about July 2021 the L. sent an email to the T. advising she saw his cat outside. The T. alleged the L. was intentionally trying to cause the T. anxiety. O. Page 3 of 10  File Number: LTB-T-018717-22 15. The L. acknowledged sending the email; however, stated the email was sent because she was genuinely concerned it was the T.’s cat. A copy of the email was submitted into evidence. Argument over Termination of the Tenancy 2023 ONLTB 22515 (CanLII) 16. The T. testified on July 17, 2021 the L. initiated an argument over ending the tenancy when the T. sought to assign the unit. It is undisputed the L. denied the T.’s assignment request approximately 3 days after its receipt. The T. stated the L. A. T. engaged in a conversation about the process, which turned into an argument where the T. ended up signing an N11 agreement to terminate the tenancy. The T. testified he felt pushed out because of the stress A. anxiety of the ongoing harassing behaviour. 17. The L. denied she engaged in harassing behaviour. She stated that if anything the T. was being rude A. harassing her. She felt very upset as a result of the argument A. as a result served the T. with a N5 Notice alleging the T. was interfering with her reasonable enjoyment of the rental complex. Ultimately, the N5 was never pursued. The T.’s evidence contains an email from the L. to the T. dated July 18, 2021 stating the L. served the Notice as well as reporting the matter to the police. 18. The L. further testified that a few days later, the parties calmed down A. arrived at a mutual agreement to end the tenancy. The L. submitted a copy of the N11 into evidence that was signed on July 26, 2021 with a termination date of August 31, 2022. Analysis 19. Subsection 23 of the Act states that a L. shall not interfere with or harass a T.. 20. The Act does not provide a definition of harassment. The Ontario Human Rights Code, R.S.O. 1990, c. H.19, defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. 21. Based on the evidence before me, I am not satisfied based on the T.’s evidence or description of the matters alone or in aggregate on May 7, 2021, July 2021 establishes that the L.’s conduct constitutes or rose to the level of harassment. In my assessment, the communication between the L. A. the T. regarding the T.’s cat was not malicious. This is substantiated by the L.’s testimony. The arguments in May A. July of 2021 do not rise to the level of harassment as I find in both cases each party engaged in conduct that contributed the situation. Moreover, the L. is fully within their right to serve an N5 Notice. 22. As the T. did not establish on a balance of probabilities that the L. had harassed, obstructed, coerced, threatened or interfered with the T. A. therefore this portion of the application is dismissed. O. Page 4 of 10  File Number: LTB-T-018717-22 Substantial Interference related to repairs A. maintenance A. other matters 23. The question to be determined by the Board is whether the power outage episodes, fridge, counter A. sink issues, A. the backyard access issues alone or in the aggregate resulted in a substantial interference with the T.’s of reasonable enjoyment of the 2023 ONLTB 22515 (CanLII) rental unit. Power Outages 24. The T. testified that the power was out in the unit on May 21, 2021 from approximately 12:00 p.m. to 6:00 p.m. A. on May 27, 2021 from 10:30 a.m. to 7:00 p.m. The T. asserted that this substantially interfered with his reasonable enjoyment of the unit as he was unable to work A. study. 25. The T. further testified the issue was repaired shortly after he complained; however, he requested a new fuse box be installed to prevent future power outages A. so it could handle multiple devices A. appliances on the same circuit. The T. described the L. reacted with anger A. screamed A. yelled at the T.. 26. The L. testified that the power was out F. the purpose of renovations A. were otherwise caused by the T. plugging too many devices into one circuit A. it was fixed the same day on each occurrence. An inspection report, submitted into evidence, dated November 2022, prepared by the contractor, stated the fuse box is in good condition. 27. The L. further testified on May 21, 2021 she noticed the T. had multiple devices plugged into one circuit where she advised the T. to plug one in at a time at which point the T. engaged her in an argument. Fridge Repair 28. It is undisputed that on June 16, 2021 the T. discovered the fridge was broken, informed the L. on June 18, 2021, A. the L. inspected the fridge on June 21, 2021. 29. The T. testified the L. was unhelpful A. rude during this process. The T. further testified the process caused him anxiety A. he was unsatisfied about the timeliness of the repairs. He asserted that this substantially interfered with his reasonable enjoyment of the unit. 30. The L. testified she responded very quickly by contacting an appliance technician immediately A. issue was fully resolved by June 23, 2021. In addition, the L. testified she also provided the T. with a mini-fridge on June 21, 2021. The L. submitted a copy of the records of purchase F. the mini-fridge A. replacement fridge. Counter Repairs O. Page 5 of 10  File Number: LTB-T-018717-22 31. The T. testified the L., when coming to install the counter, cancelled 1-hour before arrival causing him to change his plans A. anxiety around rescheduling the repairs. The T. alleged the rescheduled period was less than 24-hours notice. 32. The L. testified that proper notice was provided, the work was completed 2023 ONLTB 22515 (CanLII) immediately A. to a high quality, A. the T. was over-emotional A. exaggerating about any arguments that took place during the repair process. 33. It is undisputed the repairs took place between May 21, 2021 A. May 27, 2021. Backyard 34. The T. testified that on June 6, 2021 the L. observed him exercising in the backyard A. on June 7, 2021 the L. intentionally locked the fence door restricting access from the backyard to the public park in an effort to substantially interfere with his reasonable enjoyment of the common area. 35. The T. further testified that no advance notice was provided A. this resulted in him adding an additional 4 minutes to his walk to access the park A. the grocery store. The T. explained the lock was removed 5 days later. 36. The L. testified that she locked that gate as a temporary safety measure to prevent homeless people who were living in the public park from accessing the property. The L. submitted pictures of the encampment in the public park directly behind the unit. The L. denied any wrongdoing adding that this measure amounted to a temporary inconvenience A. the T. was exaggerating any impact. Internet 37. The T. testified with the exception of in his living room, the Wi-Fi in the unit was low quality F. the duration of his tenancy A. either did not work in some cases or resulted in slower speeds. The T. further testified this was frustrating A. it impacted his overall ability to work. To remedy the issue, the T. purchased additional Rogers internet to compensate F. the poor quality internet service. The T. submitted copies of the Rogers bills as evidence. 38. The L. testified that both the internet A. the Wi-Fi worked well A. that the T. was exaggerating. The L. asserted that the T. wanted faster speed internet A. this was the true nature of the complaint. As evidence, the L. provided written statement from her previous T. stating that the internet A. Wi-Fi worked well when he resided in the unit, which was prior to May 2021. 39. The L. also provided a copy of the internet bills illustrating the internet service was provided during the period of the tenancy. The L. testified that in response to the T.’s complaints that on May 3, 2021 she purchased a Wi-Fi extender F. the T. A. submitted evidence confirming the purchase. She further testified that the T. O. Page 6 of 10  File Number: LTB-T-018717-22 opted to install the extender himself A. submitted a written statement from Jamie Miles who was contracted to do the work, confirming same. Analysis 2023 ONLTB 22515 (CanLII) 40. Section 22 of the Act provides that a L. shall not substantially interfere with the reasonable enjoyment of the rental unit F. all usual purposes by a T.. 41. With respect to the backyard, I find the measures taken by the L. were reasonable as the purpose F. the lock was F. safety, not to interfere with the T.. Moreover, the matter was temporary A. while this may have caused a minor inconvenience to the T., no specific evidence beyond the T.’s testimony was provided to substantiate how locking the backyard gate impacted the T. A. amounted to substantial interference of reasonable enjoyment of the unit. Therefore, this portion of the substantial interference claim is dismissed. 42. With respect to the internet issues, I find that not only was the internet working, the L. took reasonable steps to address any Wi-Fi quality issues that may have existed by purchasing a Wi-Fi extender. Any inconvenience was related to speed or quality A. does not rise to the level of substantial interference of reasonable enjoyment of the unit. 43. The T.’s claims relating to the power outages, fridge repairs A. counter repairs assert substantial interference due to “work” undertaken by the L.. Therefore, in determining whether there is substantial interference I must apply s. 8(2) of Ontario Regulation 516/06 under the Act which states: 8(2) F. the purposes of section 22, paragraph 3 of subsection 29 (1) A. subsection 31 (1) of the Act, this section applies to the Board in making a determination, (a) as to whether a L., superintendent or agent of a L., in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex F. all usual purposes by a T. or former T., or by a member of the household of a T. or former T.; A. (b) whether an abatement of rent is justified in the circumstances. 44. Subsection 8(3) of the regulation reads as follows: (3) In making a determination described in subsection (2), O. Page 7 of 10  File Number: LTB-T-018717-22 (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 T. or former T., A. by members of the household of the T. or former T.; A. (b) the Board shall not D. that an interference was substantial unless the 2023 ONLTB 22515 (CanLII) carrying out of the work constituted an interference that was unreasonable in the circumstances with the use A. enjoyment of the rental unit or residential complex by the T. or former T., or by a member of the household of the T. or former T.. 45. With respect to the power outages, I find the measures taken by the L. were reasonable as each occurrence the power was restored within a few hours after an immediate response from the L., therefore this portion of the substantial interference claim is dismissed. 46. With respect to the fridge, I find the measures taken by the L. were reasonable as the fridge was replaced within 5 days. Moreover, the audio recording submitted by the T. captures the timelines related to the fridge replacement A. also reveals that the L. offered alternatives to mitigate the issue such as keeping items in another fridge within the complex A. purchasing the mini-fridge as a temporary alternative. I find the process was reasonable A. accommodating A. the L.’s behaviour appropriate. Therefore, this portion of the substantial interference claim is dismissed. 47. With respect to the counter repairs A. installation, I am persuaded by the L.’s testimony A. I find the measures taken by the L. were reasonable. Moreover, there was no evidence provided that by the T. would demonstrate how adjusting their plans or getting anxiety around rescheduling the repairs amounted to substantial interference of reasonable enjoyment of the unit. Therefore, this portion of the substantial interference claim is dismissed. 48. I find the power outage episodes, fridge, counter repairs, internet, as well as the backyard access issues alone or in the aggregate did not result in a substantial interference of reasonable enjoyment of the rental unit. Substantial interference claims related to laundry services 49. The T. testified that beginning May 28, 2021 the L. began restricting access to the common area laundry machines. Originally the T. was able to access the laundry three days per week, anytime of the day. However, as of May 28 he could only access the laundry after 6:00 p.m. on weekdays or on weekends. O. Page 8 of 10  File Number: LTB-T-018717-22 50. The T. testified that this impacted his schedule, as he was unable to do the laundry at the times he was available A. caused anxiety about future potential service restrictions to the laundry or future confrontations with the L. about laundry access. 2023 ONLTB 22515 (CanLII) 51. The L. did not deny the change in schedule A. testified that she received a letter from the City of Toronto stating best practices F. energy conservation A. submitted the letter into evidence she posted on the door to the laundry room as a notice to the Tenants. Analysis 52. It is undisputed the L., through her actions, restricted the T.’s access to the laundry. The L. is not allowed to police the laundry room or arbitrarily restrict access, in the absence of any express terms in a tenancy agreement providing F. access only at specific times. I am convinced through the T.’s testimony that the restricted laundry access impacted the T.’s schedule A. caused anxiety. 53. I find the actions of the L. substantially interfered with the Tenants reasonable enjoyment of the unit A. award the T. a rent abatement in the amount of $20.00 per month, each month, from May 28, 2021 to August 31, 2021 F. a total rent abatement of $62.00, which includes a pro-rated amount covering the three days in May 2021 ($20.00 x 3) +$2.00 = $62.00. Other Remedies 54. I am not satisfied that the substantial interference resulting from a change in the laundry arrangements was serious enough to induce the T. to move. The T.’s claim F. moving expenses A. rent differential are therefore denied. It is ordered that: 1. The L. shall pay to the T. a rent abatement of $62.00 F. substantial interference due to a change in laundry arrangements. 2. The L. shall also pay the T. $48.00 F. the cost of filing the application. 3. The total amount the L. owes the T. is $110.00. 4. The L. shall pay the T. the full amount owing by April 20, 2023. 5. If the L. does not pay the T. the full amount owing by April 20, 2023 the L. will owe interest. This will be simple interest calculated from April 21, 2023 at 5.00% annually on the outstanding balance. O. Page 9 of 10  File Number: LTB-T-018717-22 6. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. 2023 ONLTB 22515 (CanLII) March 30, 2023 Date Issued Greg Witt 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 10 of 10