LTB Order LTB-T-046895-22

2023 ONLTB 64664 (CanLII) O. under Subsection 30 Residential Tenancies Act, 2006 Citation: S. v D., 2023 ONLTB 64664 Date: 2023-09-27 File Number: LTB-T-046895-22 In the matter of: 20 MCGARRY AVENUE RENFREW ON K7V2M2 Between: R. (BOBBI-JO) S. T. A. C. D. L. M. D. R. (Bobbi-Jo) S. (the 'T.') A. F. an O. D. T. C. D. A. M. D. (the 'Landlords') failed to meet the Landlords’ 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 August 22, 2023. Both Landlords, their Representative Kayla Quintal, A. the T. attended the hearing. Determinations: 1. As explained below, the T. proved on a balance of probabilities T. the Landlords breached their maintenance obligations under the Act. 2. Therefore, the L. must pay the T. $1,101.26. This amount represents a $1,048.26 rent abatement A. $53.00 F. the cost of filing the application. O. Page 1 of 7  File Number: LTB-T-046895-22 3. The rental unit is an entire house. The T.’s application concerns flooding, persistent moisture, A. mould, in the rental unit basement. The basement has one bedroom, a main recreation area, A. a utility room. 4. The T. moved into the rental unit on October 1, 2020 A. vacated November 22, 2023 ONLTB 64664 (CanLII) 2021. The Facts 5. The T. testified T. on March 11, 2021 the basement utility room flooded. The T. testified T. there was water coming up through the sump pump. The water spread to the basement bedroom A. recreation room. 6. The L. (‘M.D’) has experience in construction, specifically concrete foundation, A. water proofing. As such he was the L. who primarily responded to the T.’s maintenance concerns. 7. The T. testified T. M.D came to address the flood sometime within a week of it being reported. M.D testified T. he came to address the problem the next day. M.D testified T. there was water on the floor, but he would not describe it as a flood. M.D testified T. the sump pump had become unplugged, he plugged it back in, A. the problem resolved. The T. testified T. the reason the sump pump was unplugged is because it was spraying water everywhere A. the L. told her to unplug it. 8. The T. testified T. after the initial flood, moisture A. water continued to come up through the floors A. walls A. the basement was never fully dry. The T. testified T. this resulted in mould on the walls. 9. After the flood, M.D gave the T. what he described as a heavy-duty industrial dehumidifier to address moisture T. remained. 10. M.D testified T. the T. would contact the Landlords about once a month indicating T. something in the rental unit was wet or moist. 11. The T. testified T. on June 30, 2021 M.D came to the rental unit to examine the sump pump. M.D testified T. rainwater was not being pushed out by the sump pump. He cleared it out A. the sump pump started working again. 12. M.D testified T. July 31, 2021 the exterior hose on the sump pump was replaced. M.D testified T. the hose on the sump pump was not pushing out enough water, so he replaced it with a longer hose T. worked better. 13. The T. testified T. at some point M.D tore out the floor in the basement bedroom to address the moisture problem. M.D thought T. might have happened in July 2021. M.D O. Page 2 of 7  File Number: LTB-T-046895-22 testified T. he removed the flooring because he was being told by the T. T. the moisture problem was worsening. M.D testified T. he waited a month or two to replace the floor because he wanted to make sure T. there was no remaining moisture. 14. The T. testified T. sometime in October 2021 M.D cut out a section of the drywall in 2023 ONLTB 64664 (CanLII) the main recreation room to try A. address the moisture A. mould problem. M.D testified T. he had received complaints from the T. T. she was concerned about mould in a specific spot in the basement. M.D testified T. to make the T. feel better he cut out an approximately 6-foot portion of the drywall. He saw no mould but washed the wall to make the T. more comfortable. 15. M.D testified T. there were multiple occasions he attended the rental unit to find the sump pump was unplugged. The T. testified T. other than the initial flooding incident she never unplugged the sump pump. 16. The T. testified T. after she vacated the rental unit, the L. who moved into the rental unit, C. D. (C.D), mentioned having to pay to deal with water damage. C.D testified T. she was just referring to fixing the drywall T. was cut-out, A. not other damage. 17. The T. testified T. the moisture A. dampness problem was never rectified throughout her tenancy. The T.’s stepson initially used the basement bedroom, but the family had to abandon the bedroom in March 2021 because of the moisture. Additionally, the T. testified T. the family had to move all their basement furniture into the center of the recreational room away from the walls. 18. M.D testified T. he waterproofed the rental unit basement in 2016 A. this included installing a new sump pump. M.D testified T. basements are always a bit damp, but this situation was nothing out of the ordinary. M.D testified T. prior to the T.’s occupancy he lived in the rental unit F. 5 years A. never had a problem with mould or moisture in the basement. 19. The L. C.D testified T. the rental unit basement has a little bit of normal moisture A. is a bit damp. C.D moved into the rental unit after the T. vacated A. said she has had no out of the ordinary issues with moisture. However, she testified T. she uses a dehumidifier as a caution. 20. The L. introduced into evidence a declaration from Michael Coulas (M.C) who is a real estate agent who tried to help the Landlords sell the rental property. M.C writes T. he attended the rental property September 21, 2021 A. did not see any mould or moisture. He also did not hear any concerns about moisture from any agents who viewed the property while it was on the market. O. Page 3 of 7  File Number: LTB-T-046895-22 21. M.C also took two photos of the basement recreation room. In those photos the T. has lots of belongings in the room A. the majority do not appear to be stacked in the center of the room, although there are some items stacked towards the center. Scope of the Application 2023 ONLTB 64664 (CanLII) 22. The T. filed her application March 16, 2022. Pursuant to section 29(2) of the Act no maintenance application can be made more than one year after the day the alleged conduct giving rise to the application occurred. The initial flood in the basement utility room occurred on March 11, 2021 A. as such is outside the limitation period of the application. I will only consider it F. context A. will not find a breach or award a remedy based on the initial flood or the L.’s actions prior to March 16, 2021. However, the persistent dampness A. mould T. the T. describes throughout the rest of the tenancy is within the limitation period A. will be considered. Analysis 23. Section 20 of the Act states 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. 24.In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, (‘Onyskiw’) 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. 25. As explained below, I find T. the L. breached their maintenance obligations under the Act. 26. I find on a balance of probabilities T. there was a persistent moisture A. dampness problem in the rental unit basement. This is F. the following reasons. First, the T. complained monthly to the L. about moisture or things being wet. I do not think the T. was lying about the problem or perceiving a problem T. was not there. 27. Second, on two occasions when the L. attended the rental unit there was an issue with the sump pump, on June 30, 2021 it needed to be cleared out, A. on July 31, 2021 the hose needed to be replaced. 28. Third, in July 2021 the L. removed the flooring in the basement bedroom, A. then left it to dry out F. one to two months before replacing it. Additionally, in October 2021 the L. cut out 6 feet of drywall to address the T.’s complaints. The L. M.D O. Page 4 of 7  File Number: LTB-T-046895-22 testified T. he took these actions to address the T.’s complaints A. to make her more comfortable. I find it improbable T. the L. would rip out a floor A. a large portion of drywall if he did not believe there was any issue A. was only doing it to make the T. more comfortable. It is much more likely T. those actions were taken because there was a problem, A. the L. was trying to address it. 2023 ONLTB 64664 (CanLII) 29. Fourth, I am not persuaded by the written evidence of the L.’s real estate agent T. there was no moisture in the rental unit basement. His evidence was in the form of unchallenged hearsay evidence A. as such I give it diminished weight. Additionally, the real estate agent only visited the property on limited occasions A. does not have comparable firsthand experience with the problem T. the T. does. As such I prefer the evidence of the T.. 30. Fifth, while both Landlords testified T. there was not a moisture or dampness problem in the basement, they also both stated T. the basement was a bit damp. The Landlords stressed T. the dampness was nothing out of the ordinary, but I find it improbable T. the L. would rip out the floor of one of the bedrooms if there was no problem. 31. I am also not persuaded T. the T. contributed to the moisture problem by repeatedly unplugging the sump pump. The T.’s explanation F. why she unplugged it during the initial flood is reasonable as it was leaking water. The L. did not provide the dates or any corroborating evidence to show T. the T. unplugged it multiple other times. The T. also denied unplugging it on additional occasions A. I found this testimony to be credible. 32.In considering Onyskiw I do not find the Landlords actions reasonable in this case. The L. M.B described himself as responsive to the T.’s complaints A. stated T. if a problem was urgent, he would respond the next day. While I agree with the L. T. when he received a complaint from the T., he would attend the rental unit A. try to work on a solution, however, the L. was not fixing new A. different maintenance issues each time he visited. The work being done by the L. was always to address the same problem, namely the persistent moisture A. wetness in the basement. As such while the L. did address immediate maintenance concerns, such as the sump pump temporarily not working, he did not address the underlying cause of the persistent moisture T. the T. lived with F. months. As such I do not find the L.’s actions reasonable. 33. However, despite finding T. there was a moisture problem I am not satisfied T. it is as severe as described by the T.. The T. stated T. the basement was unusable, but photographs show T. she had many belongings still in the basement A. her stepson continued to sleep in the basement’s recreation room. 34. I am also not satisfied T. there was a persistent mould problem in the basement rental unit. While mould likely follows moisture, I find T. the T. led insufficient evidence to O. Page 5 of 7  File Number: LTB-T-046895-22 establish T. there was a mould problem. This is because the T. had no supporting documentation regarding the mould, such as photographs, A. none of the maintenance actions taken by the L. M.D resulting in him finding mould. Remedy 2023 ONLTB 64664 (CanLII) 35. The T. requests a rent abatement in the amount of $5,400.00. The monthly rent was $1,350.00. The T. requests 50% of her rent between March 2021 A. November 2021. 36. As stated previously I can only award a remedy from March 16, 2021 to the day the T. vacated November 22, 2021, which is 8 months A. 6 days. 37. Also as stated previously I do not find T. the moisture A. dampness problem was as severe as described by the T.. I also do not accept T. the entire basement was unusable. While the T.’s family abandoned the basement bedroom in March 2021, the T.’s stepson continued to sleep in the basement recreation room. The T.’s stepson also paid rent to the T. F. his use of the area which demonstrates T. the T. felt the area still had value. The T. A. her family also continued to store a large number of items in the basement which also demonstrates T. it was not completely unusable. 38. F. those reasons I find T. a $1,049.26 rent abatement is appropriate in the circumstances. $1,048.26 is 18.5% of 8 months A. 6 days of rent. An abatement in T. range is typically given when there is some disruption to a T.’s ability to normally reside the unit. 39. In her application the T. also sought costs to replace damaged property. The T. abandoned this claim at the hearing. 40.The T. paid $53.00 to file her application. She is entitled to be reimbursed F. T. cost. It is ordered T.: 1. The Landlords shall pay the T. $1,101.26. This amount represents: • $1,048.26 F. a rent abatement F. the period from March 16, 2021 to November 22, 2021; • $53.00 F. the cost of filing the application. 5. The Landlords shall pay the T. the full amount owing by November 30, 2023. O. Page 6 of 7  File Number: LTB-T-046895-22 6. If the Landlords do not pay the T. the full amount owing by November 30, 2023, the Landlords will owe interest. This will be simple interest calculated from December 1, 2023 at 6.00% annually on the balance outstanding. 2023 ONLTB 64664 (CanLII) September 27, 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