LTB Order LTB-T-043424-22

O. under Section 31 Residential Tenancies Act, 2006 Citation: Xu v Wu, 2023 ONLTB 23303 Date: 2023-04-04 2023 ONLTB 23303 (CanLII) File Number: LTB-T-043424-22 In the matter of: Master bedroom, 223 KNUDSON DR KANATA ON K2K2N7 Between: Q. L. T. W. Xu A. H. Wu L. Q. L. A. W. Xu (the 'T.') A. F. an O. D. T. H. Wu (the 'L.'):  entered the rental unit illegally.  altered the locking system on a door giving entry to the rental unit or residential complex without giving the T. replacement keys.  substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of the T.’ household.  harassed, obstructed, coerced, threatened or interfered with the T..  withheld or interfered with the T.’ vital services or care services A. meals in the care home. This application was heard by videoconference on September 1, 2022. The L. A. the T. attended the hearing. The L.’s Legal Representative J. Tao, a Mandarin Interpreter Lilian Xao A. T.’ witnesses Gavin Cui A. Shuang Zhu were also present. Determinations: 1. As explained below, I find T. the Residential Tenancies Act, 2006 (“Act”) does apply to this tenancy. Therefore, the Board has jurisdiction to consider the T.’ claims. 2. The T.’ application states 223 KNUDSON DR, Kanata as their rental address whereas during their testimony the T. revealed T. they only rent the master bedroom at the property address 223 KNUDSON DR, Kanata. Hence on my own motion I am amending the application to list the rental unit as ‘Master bedroom, 223 Knudson Dr, Kanata’ as all parties were in agreement. Does the Act apply? O. Page: 1 of 8  File Number: LTB-T-043424-22 3. Section 5(i) of the Residential Tenancies Act, 2006 (“Act”) states T. the Act does not apply to: living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s 2023 ONLTB 23303 (CanLII) child or parent, A. where the owner, spouse, child or parent lives in the building in which the living accommodation is located 4. The property is a 3-bedroom house with all bedrooms on second floor A. a room A. a rec room in the basement. There is one kitchen in the house but the T. have their own attached bathroom in the rental unit. T.’ evidence 5. The T. testified T. they moved into the house on April 21, 2022 A. have never shared a bathroom or kitchen with the L.. The T. rent the master bedroom A. there are other T. who live in other two rooms upstairs. 6. The T. testified T. the L. does not live at the rental property but instead has a house in Quebec A. his vehicle is registered in Quebec as well. The Tenant stated T. the L. also rented out the basement room F. a month so it is not possible F. the L. to be living in the basement. 7. Tenant's witness Shuang Zhu who lived at the property from May 6, 2022 to May 30, 2022 testified T. she never saw the L. live at the property A. she has not been in contact with L. ever since. She also testified T. the L. never told T. her T. she will be sharing the kitchen A. bathroom with L., but he did tell T. if the other room is rented, she will share the bathroom with the other tenant A. she assumed she will be sharing the kitchen too. 8. The T.’ second witness Gavin Gui (GG) testified T. his parents rented the basement room F. 3 days before moving to a room upstairs when it became available. They stayed at the rental property F. a period of three months A. while he himself did not live there he regularly visited his parents A. did not see the L. there. L.’s evidence 9. The L.’s Legal Representative stated T. the lease states T. the kitchen A. bathroom are shared with the L.. The lease was submitted as evidence. 10. The L. testified T. he has a short-term rental agreement with the T. A. it was clearly stated T. the T. will be sharing kitchen A. bathroom. The L. does live there occasionally since he is a contractor A. takes projects in Ottawa, so he lives at the rental property every now A. then. The L. also testified T. his family members live in Montreal but since a lot of his renovation projects are in Ottawa its not possible to return to Montreal every night. 11. There is a bedroom in the basement T. the L. has kept F. his own use, A. he uses it more often in winters when travelling often is not safe. Also, he only leases the O. Page: 2 of 8  File Number: LTB-T-043424-22 property F. short term as he wants to keep his option open to gain possession of the rental property with one month’s notice if he requires it F. himself A. his family exclusively. He uses the garage A. the basement to store his personal stuff. He also added T. the bedroom in the basement was only given F. few days in July 2022 to a friend of his A. not a month as testified by the T.. 2023 ONLTB 23303 (CanLII) 12. The L. further testified T. he finishes work late A. if he comes to the property to sleep, he may not encounter other T., but the T. see him every week when he comes to deliver mail A. they also see him regularly when he mows the lawn or does maintenance or repair work at the property. He also added T. if he gives out his basement to a friend, he does not need permission from the T. to do so. Analysis 13. Based on the testimony before me, I find T. the L. does use the basement occasionally F. his personal use. Since the property only has one kitchen, he has to use the same when he stays at the property over night. The lease also clearly states T. the kitchen A. bathroom will be shared with the L.. 14. However, what I need to determine is if the L.’s occasional usage of the kitchen is sufficient to result in the rental unit being exempt from the Act pursuant to section 5(i). As set out above, this exemption only applies if “the owner, spouse, child or parent lives in the building in which the living accommodation is located.” 15. I have also contemplated s.202 of the Act which directs me to examine the real substance of the interactions between the parties A. their activities. 16. Based on the evidence, I find T. the exemption from the Act contained in s.5(i) does not apply with respect to this tenancy. I say this F. the following reasons:  The term “lives” is not defined in the Act, A. in the apparent absence of any on- point jurisprudence, I will be guided by the dictionary definition of this term. The Oxford Canadian Dictionary (2004) defines “live” as “make or have one’s abode”. Applying this definition, I find T. the second condition found in subsection 5(i) is not satisfied. While the L. occasionally spends the night in the residential complex, his habitual or primary abode is in Montreal. This is the address where he sleeps A. resides a majority of the time A. is the address, he provides F. official purposes such as his drivers license.  The L.’s evidence was T. he shared the property quite a few times during this tenancy; the L.’s evidence was also T. he had unrestricted access to common areas, but the L. failed to establish the he occupied this house as his primary residence. I draw an adverse inference from the L.’s failure to provide mor reliable evidence as to how many days the L. actually occupied rental property. 17. I am not satisfied T. the L. shared a bathroom A. a kitchen under s.5(j) of the Act. Therefore, the Act applies to this tenancy. O. Page: 3 of 8  File Number: LTB-T-043424-22 T2 application 18. The T. application includes following issues: a) The L. changed the locks of the rental unit; 2023 ONLTB 23303 (CanLII) b) The L. illegally entered the rental unit; c) The L. substantially interfered with their reasonable enjoyment; b) The L. harassed them; A. c) The L. withheld the vital service of air conditioning. 19. On any application before the Board the person making an allegation bears the burden of proof. This means the T. must lead sufficient evidence to establish T. it is more likely than not T. the L. did what they allege he did. In this case, I am satisfied T. L. substantially interfered with the T.’ reasonable enjoyment or harassed the T.. Though I am not satisfied based on evidence presented at the hearing T. the L. deliberately interfered with or withheld a vital service. Changed the locks of the basement 20. The Tenant alleges T. the L. changed the locks of the basement area where his stuff was stored A. did not give him the keys to access the basement area. 21. Based on the testimony provided the rental unit is the master bedroom of the property which is shared with other T. who rent other bedrooms in the property. The L. occasionally occupies the basement bedroom of the property. The L. asked the T. to remove their belongings from the garage A. the basement area but the T. failed to do so. Since the T. were entering the personal space of the L. in the basement A. also playing with the power panel which could be dangerous, he changed the locks of the basement room. 22. The T. also allege T. the L. rented out the basement of the property F. four days in June 2021 A. F. one month in July 2021, which interfered with their access to the basement where they stored their belongings which substantially interfered with them. 23. The T. also allege T. the L. failed to provide them with the mailbox key. The L. replied T. the L. only has one key to the mailbox A. the mailbox is where the mail is delivered F. all T., A. he cannot share the same with the T.. He comes at least once every week A. hands out the mail to the T. himself. 24. Pursuant to s. 24 of the Act: 24 A L. shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys. O. Page: 4 of 8  File Number: LTB-T-043424-22 25. None of the locks described by the T. fall under this definition. Section 24 applies to the locking system of the rental unit which in this case is the master bedroom A. the residential complex which is the main door to enter into the property. I find based on this T. the claim F. L. changing the locks of the rental unit, are dismissed. 2023 ONLTB 23303 (CanLII) Withheld Vital Services 26. The Tenant also allege T. the air conditioning of the property was not working from July 24 2021 till August 5, 2021 A. the L. did not do enough to repair the air conditioning. 27. Pursuant to s. 21 of the Act: 21 (1) 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. 28. The definition of “vital service” in s.2(1) “vital service” means hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat. 29. Subsection 21(1) does not apply to a disrepair or maintenance problem. The wording of the provision shows it is intended to address the situation where a L. deliberately interferes with or withholds a vital service. T. is not what happened here, so this part of the Tenant’s application must be dismissed. Illegal entries 30. The T. alleged the following illegal entries by the L. on the following dates:  July 25 2021  July 27, 2021 from 1 pm to 3 pm 31. The T. testified T. the L. entered the property on both these occasions, but none of the entries were in the rental unit. The Tenant W. Xu testified T. he was afraid T. the L. may enter his bedroom too, but he never did. 32. I do not find based on the Tenant’s testimony T. the L. entered the rental unit which in this case is the master bedroom. The L. does use the basement bedroom occasionally A. also comes to maintain the property. Based on those circumstances the L. does not need to give the T. a notice under the Act to enter the property unless he is specifically entering the T.’ rental unit. 33. The T.’ claim F. illegal entries is dismissed. O. Page: 5 of 8  File Number: LTB-T-043424-22 Substantial interference A. harassment 34. The T. alleged harassment A. substantial interference F. these issues:  AC stopped working from July 24 till August 5, 2021 2023 ONLTB 23303 (CanLII)  L. cut off electricity on July 25 A. July 27, 2021  L. threatened to throw out T.’ belongings from garage A. basement  July 27, 2021 incident with T.’ paralegal  July 18, 2021 L. threatens to impose fine if rent is late 35. The Tenant W. Xu testified T. the AC at the rental unit stopped working on July 24 2021 A. the T. had to deal with unbearable heat A. the L.’s negligence in fixing the AC F. so many days, which led to interference of reasonable enjoyment. On July 27, 2021 the L. came A. turned off the power of the house. The power was on A. off multiple times sometimes F. 5 minutes A. sometimes F. longer. This also interfered with the Tenant’s work. 36. The Tenant did state T. the L. texted later T. he was repairing the AC A. T. was the only text he received F. AC repair. 37. The L. testified T. on July 24, 2021 the Tenant messaged him to come look at the AC A. there are phone records F. July 25, 2021 @ 17:09 pm where the L. states he told the T. he will be there to fix the AC. The T. also called the police the same day when he disconnected power to fix the AC. 38. The AC did not function properly even after the L. fixed it on July 25, 2021 so he told the T. he will come back the next day via a text message. 39. The electricity cuts on July 25 A. July 27, 2021 were related to the AC repairs. The L. agreed T. he disconnected power F. one hour in the evening of July 25, 2021 but on July 27, 2021 even though he was at the property but there were no power cuts at all. 40. The Tenant alleged T. the L. threatened to remove their personal belongings from the garage A. the basement. The find this to be interference since they were allowed additional storage space in the lease agreement. The lease does not mention the exact space F. additional storage in the lease. 41. The Tenant testified T. the L. threatened to throw his personal belongings from the garage A. the basement in a text sent on July 25, 2021. 42. The L. does not deny the same A. testified T. he told the T. to vacate the garage A. the basement as they were only paying F. the master bedroom A. the basement was F. his own personal use. He added T. the Tenant called the police on July 25, 2021 A. they told the T. after seeing the stuff T. he must clean up. O. Page: 6 of 8  File Number: LTB-T-043424-22 43. The incident on July 27, 2021 was related to the T.’ paralegal coming to the house A. the L. forcefully stopping the Tenant from opening the main door of the house A. also making threatening gestures towards them. A sworn statement from the paralegal was sent as evidence. The sworn affidavit states T. the Tenant told him T. the L. prevented him from opening the door A. he heard the L. tell him to 2023 ONLTB 23303 (CanLII) not open the door. He further adds the L. was making threatening gestures, so he advised his clients to call the police. He also states T. once the L. left the house they prevented him from entering again. 44. The L. testified T. the paralegal was preventing him from entering his own property A. using his bedroom in the basement which is illegal. 45. The Tenant also provided some text messages from the L. stating T. if his rent is late then he will be fined $100.00 F. each day of delay A. he finds T. these text messages are harassing A. interferes with their reasonable enjoyment. The L. did not address this evidence. Analysis 46. While the term “harassment” is not defined in the Act, it is generally held T. “harassment” is a course of conduct T. a reasonable person knows or ought to know would be unwelcome. 47. Pursuant to s.22 of the Act: 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 48. I find based on the totality of evidence provided T. the T. have proved on a balance of probabilities some of the claims of harassment or substantial interference by the L.. 49. I do not find the L. has substantially interfered when he came to repair the AC which was requested by the T.. The L. came to check the very next day after he received the complaint A. showed records of calling the T. to inform of his visit. The power cuts were also related to the repair, A. I do not find T. any inconvenience the T. experienced as a result of these repairs constitutes harassment or substantial interference. 50. The L. telling the T. to move their stuff out of the garage A. the basement was reasonable since the T. were only renting the master bedroom, but the lease agreement was vague in specifying the additional storage. The L. should not have threatened to throw the stuff out if its not cleared. 51. The L. was clearly not entitled to threaten the T. with fines if their rent was late. Such charges are prohibited by section 134(1) (a) of the Act. Landlords may file an application if the T. do not pay rent in time or pay rent late persistently. I find the O. Page: 7 of 8  File Number: LTB-T-043424-22 L. texting the T. to pay a per day fine is not acceptable A. constitutes substantial interference A. harassment. 52. The Tenant’s testimony A. the paralegal’s sworn statement establishes on a balance of probabilities T. the L. did make threatening assertions towards the Tenant A. 2023 ONLTB 23303 (CanLII) the paralegal on July 27, 2021. Even if the T. were preventing the L. from entering the rental property, he should not have engaged in an aggressive behaviour. While this was a single incident, it was serious enough to substantially interfere with the Tenant’s reasonable enjoyment. The T. having a guest attend the property does not allow the L. to prevent their entry or show such aggression. 53. On the whole, I find T. based on the allegations of substantial interference A. harassment the T. have been able to prove some of the claims made by them. Based on al the circumstances I shall grant the T. a lumpsum rent abatement of $500.00. The L. also must stop the activities if the T. are still residing at the rental unit. It is ordered T.: 1. The total amount the L. shall pay the Tenant is $548.00. This amount represents:  $500.00 F. a lumpsum rent abatement.  $48.00 F. the cost of filing the application. 2. The L. shall pay the Tenant the full amount owing by April 30, 2023. 3. If the L. does not pay the Tenant the full amount owing by April 30, 2023 the L. will owe interest. This will be simple interest calculated from May 1, 2023 at 6.00% annually on the balance outstanding. 4. If the L. does not pay the Tenant the full amount owing by April 30,2023, the Tenant may recover this amount by deducting the amount from the rent in May 2023 if they are still T. at the rental unit. 5. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. April 4, 2023 Date Issued Sheena Brar Member, L. A. Tenant Board 15 Grosvenor St, 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: 8 of 8