LTB Order LTB-T-041357-22

2023 ONLTB 51666 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: D. v G., 2023 ONLTB 51666 Date: 2023-07-27 File Number: LTB-T-041357-22 In the matter of: Basement, 75 Pepperwood Cres Kitchener Ontario N2A2R4 Tenants Between: V. D. N. L. A. L. S. G. V. D. A. N. L. (the 'Tenants') A. F. an O. D. T. S. G. (the 'L.'): • substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of their household. • withheld or interfered with their vital services or care services A. meals in a care home. This application was heard by videoconference on July 13, 2023. The L. S. G. A. the Tenants V. D. A. N. L. attended the hearing. Determinations: 1. This T2 application alleges the L. withheld a vital service A. substantially interfered with the Tenants’ reasonable enjoyment of the rental unit. 2. The rental unit is a two-bedroom apartment in the basement of a bungalow. The monthly rent was $1,600.00. The Tenants vacated the rental unit on March 19, 2022. 3. Section 21(1) of the Residential Tenancies Act, 2006 (the Act) reads as follows: O. Page 1 of 7  File Number: LTB-T-041357-22 A L. shall not at any time during a tenant’s occupancy of a rental unit A. before the day on which an O. evicting the tenant is executed, withhold the reasonable supply of any vital service, care service or food T. 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. 2023 ONLTB 51666 (CanLII) 4. Section 22 of the Act also states: A L. shall not at any time during a tenant’s occupancy of a rental unit A. before the day on which an O. evicting the tenant 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 tenant or members of his or her household. Hot Water 5. It was not disputed T. on Saturday, December 4, 2021, the hot water tank in the rental unit failed. One of the Tenants was having a shower A. noticed there was no hot water A. reported it to the L.. The parties agreed the problem was resolved four days later on Tuesday, December 7, 2021. 6. The Tenants position was the L. could have resolved the problem sooner but did not want to incur the increased cost of a weekend service call. The Tenants stated they had to shower in the upstairs unit while the problem was addressed. 7. The L. stated he had arranged F. a weekend service call to address the problem on the day it occurred however the Tenants emailed him stating they would be away until the following day. The L. explained T. since he does not live close to the unit, the Tenants needed to home to provide access to a technician. The L.’s evidence was a technician attended the unit on Monday, December 6, 2021 to diagnose the problem A. repaired it the following day. 8. I do not find on a balance of probabilities the L. withheld a vital service to the Tenants. Nothing in the evidence suggested the L. withheld hot water from the Tenants or T. he deliberately interfered with the supply of hot water. The hot water tank suffered a failure A. the L. had the issue resolved within four days. Two of those days were over a weekend. 9. I find the L. acted diligently A. the period the Tenants were without hot water was not unreasonable in the circumstances. While the Tenants may have been inconvenienced by having to shower in the upstairs unit, in my view this does not amount to a substantial interference with the Tenants reasonable enjoyment, particularly since the L. would have no way of knowing the hot water tank would fail. Again, when he was advised, the O. Page 2 of 7  File Number: LTB-T-041357-22 problem was rectified in a reasonable time. F. these reasons, this portion of the 2023 ONLTB 51666 (CanLII) application will be dismissed. Electrical Outlets 10. The Tenants application states they had two electrical plugs in their bathroom T. did not work. The application contains no dates of when the L. was advised apart from an estimate T. it was when the Tenants moved in. The L. stated he was not aware of the issue A. I did not find it would be procedurally fair to expect the L. to respond to the allegation in a meaningful way given the lack of details on the application. F. this reason, the claim in relation to the electrical outlets was not considered. Draft Above the Stove 11.The Tenants testified there was a draft above the stove T. caused their heating costs to increase to $200.00 in February of 2022. The L. acknowledged the Tenants told him about the issue in an email on December 4, 2021. The parties agreed the L. attended the unit A. used spray foam to seal the draft although the Tenants stated the draft could still be felt afterwards. 12. The Tenants evidence was not clear as to when the L. attended unit to apply the spray foam. One Tenant testified it was within a month while the other Tenant’s evidence was it was within a couple of days. The date range given by the Tenants varied from a couple of days to January or February of 2022. They could not say when the L. attended the unit to address the issue. 13. The L. explained the vent above the stove is not airtight as it is meant to allow venting when the stove is in use. His evidence was he attended the unit two days after being notified A. A. spray foam as a precautionary measure. 14. The Tenants submitted no evidence the draft above the stove contributed to increased hearing costs. It was their evidence T. the increase had to “come from somewhere”. The Tenants submitted no utility bills to support their claim T. an increase in hearing costs occurred. F. these reasons, I am not satisfied on a balance of probabilities the Tenants have proven the draft above the stove substantially interfered with their reasonable enjoyment of the rental unit A. this portion of the application will be dismissed. Flood O. Page 3 of 7  File Number: LTB-T-041357-22 15. The parties agreed T. on February 16, 2022, a flood occurred in the rental unit. The Tenants first noticed a puddle on the floor A. originally thought it might be cat urine. The Tenants confirmed it was water A. eventually determined it was coming from the living room wall. Their insurance company suspected there was a crack in the foundation of the property. The L.’s evidence was the cause of the flood was the window well. 2023 ONLTB 51666 (CanLII) 16. The Tenants submitted video evidence showing an area carpet T. was completely saturated with water. They submitted video evidence showing water seeping up through the vinyl flooring planks in the rental unit. The video also shows the base of the walls in an unfinished area A. they are clearly wet. 17. The Tenants evidence was they asked the L. F. fans to dry the area A. he refused. The Tenants testified they had to mop up the water several times a day F. the first week after the problem began A. then twice a day in the second week. Their evidence was they had put down towels A. blankets to absorb the water A. within two weeks the issue stopped. They also moved their belongings to prevent anything else from being damaged. 18. The L. disputed the duration of the issue stating his insurance company’s contractor attended the unit the day after the flood was reported. He submitted their initial report T. states the Tenants had placed towels A. blankets soak up the water. The L. testified he attended the rental unit two days after the flood was reported A. saw no ongoing issues with water entering the rental unit. 19.The L. stated there was a significant rain event at the time the flood occurred. He denied the Tenants ever asked F. drying fans. It was his evidence T. he took no other steps based on his inspection of the unit. The L. acknowledged he did not return to the unit over the two-week period the Tenants claim the issue persisted. 20. The Tenants testified they were fearful of another flood A. the potential F. mold. Their evidence was T. because of these fears, they moved out of the rental unit on March 19, 2022. They acknowledged they did not provide the L. with the 60 days notice required under section 44 of the Act but stated the L. agreed to their vacating the rental unit without giving the required notice. The Tenants also stated the L. agreed to return their rent deposit. The Tenants submitted no evidence of such an agreement A. stated they were verbal conversations. 21. The L. testified the tenancy agreement was under a lease agreement T. was due to expire on June 30, 2022. He submitted an email dated March 6, 2022 in which he advises the Tenants he has no problem with them moving out however they are breaking the lease if they move out by the end of March 2022. He goes on to state the Tenants are providing him less than one month’s notice. The L. states he cannot guarantee he will return the rent deposit to the Tenants but will if a new tenant is found by the time they vacate the rental unit. O. Page 4 of 7  File Number: LTB-T-041357-22 22. The L. also submitted an email from the Tenant N. L. dated April 9, 2022 2023 ONLTB 51666 (CanLII) asking the L. if she could move back into the rental unit. The L.’s position was the Tenant’s request to move back into the unit less than one month after they vacated was evidence T. undermined the Tenants’ position they were fearful of another flood A. mold. The L. testified a new tenant moved into the rental unit on May 1, 2022 A. no issues had been reported by the new tenant. 23. I am satisfied on a balance of probabilities the Tenants have proven the L. substantially interfered with their reasonable enjoyment of the rental unit in relation to the flood T. occurred on February 16, 2022. While the L. cannot be faulted F. significant rainfall, in my view, his response to the resulting flood led to the Tenants taking on the entire burden of dealing with the results of the flood. 24. The L.’s own evidence was he attended the unit two days later A. observed no issues. He acknowledged he never re-attended the unit to check on the status. His evidence was he believed the Tenants’ actions had mitigated any issues A. he believed the problem was not ongoing. In short, he did nothing to assist the Tenants with the water T. had clearly entered the rental unit. 25. I accept the Tenants’ evidence T. they were burdened with the task of mopping A. soaking up the flood water A. T. the problem persisted F. approximately two weeks. The only evidence of the conditions in the rental unit after the L.’s visit came from the Tenants. I am therefore convinced the inaction on the part of the L. has substantially interfered with the Tenants reasonable enjoyment of the rental unit A. this portion of the Tenants’ application will be granted. Remedies 26.The Tenants’ application seeks $1,600.00 in a rent abatement which is equivalent to one month’s rent. 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 tenant should be entitled to abatement equal to the difference in value. 27. While I find the Tenants are entitled to a rent abatement F. the flood issue, in my view a 100% rent abatement F. a problem T. lasted approximately two weeks is not reasonable. The unit was habitable, A. the Tenants provided no evidence they had to relocate while the issue was ongoing. Given the work the Tenants had to perform in the absence of any assistance from the L., I find a rent abatement of 25% F. the twoweek period is reasonable in the circumstances. This amounts to $200.00. I calculate this by dividing the O. Page 5 of 7  File Number: LTB-T-041357-22 monthly rent in half to reach the approximately two-week period being considered. This amounts to $800.00. 25% of $800.00 equals $200.00 A. this amount will be ordered. 28. The Tenants sought $300.00 F. the area rug T. was destroyed because of the flood. They submitted no evidence showing the replacement cost of the rug. However, I am 2023 ONLTB 51666 (CanLII) satisfied area rugs are not free A. will O. $150.00 F. the damaged area rug based on my knowledge of the cost of an entry level rug. 29. The Tenants sought an O. terminating the tenancy effective March 19, 2022, the day they vacated the rental unit. I am not convinced the parties agreed to terminate the tenancy on this date. While the Tenants evidence was the L. verbally agreed to their vacating without notice I find the L.’s evidence far more reliable. The L., in the email submitted, clearly informed the Tenants they were breaking the lease agreement A. not providing the notice required under the Act. 30. Further, I am not convinced on a balance of probabilities the Tenants vacated the rental unit out of necessity. The unit was habitable, A. the flood resolved more than two weeks before the Tenants vacated. I do not accept the Tenants’ explanation T. they were fearful of another flood or the potential F. mold as a valid reason to vacate the unit not in accordance with the Act. The Tenants’ reason is speculative A. not evidence of any peril they would face by remaining in the rental unit. I do not find the Tenants had to vacate the rental unit based on the actions of the L. or the conditions of the rental unit. 31. Additionally, three weeks after vacating, the Tenant N. L., emailed the L. advising she would be interested in re-renting the unit. I agree with the L. T. this email from the Tenant undermines the proposition the unit had to be vacated based on the conditions of it. F. these reasons, the Tenants’ request F. an O. terminating the tenancy effective March 19, 2022 is denied. 32. The Tenants also sought an O. F. moving A. storage expenses A. out of pocket expenses related to their move from the rental unit. Since I have found the Tenants were not required to vacate the rental unit based on the L.’s actions or the conditions of the rental unit, these remedies will be denied. It is ordered T.: 1. The total amount the L. shall pay the Tenants is $403.00. This amount represents: • $200.00 F. a rent abatement. • $150.00 the reasonable costs T. the Tenants will incur to replace the area rug T. was destroyed as a result of the L.'s actions. O. Page 6 of 7  File Number: LTB-T-041357-22 • $53.00 F. the cost of filing the application. 2023 ONLTB 51666 (CanLII) 2. The L. shall pay the Tenants the full amount owing by August 7, 2023. 3. If the L. does not pay the Tenant the full amount owing by August 7, 2023, the L. will owe interest. This will be simple interest calculated from August 8, 2023 at 6.00% annually on the balance outstanding. July 27, 2023 ____________________________ Date Issued John Cashmore 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 7 of 7