LTB Order LTB-T-048685-23

2023 ONLTB 66155 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: M. v H., 2023 ONLTB 66155 Date: 2023-10-18 File Number: LTB-T-048685-23 In the matter of: 763 Main Street West North Bay Ontario P1B2V6 Tenant Between: A. M. A. L. B. H. A. M. (the 'Tenant') A. F. an O. D. T. B. H. (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 Tenant replacement keys. • harassed, obstructed, coerced, threatened or interfered with the Tenant. This application was heard by videoconference on August 22, 2023. The L., the L.’s representative, S. Bailey A. the Tenant attended the hearing. Determinations: 1. As explained below, the Tenant proved the allegations contained in the application on a balance of probabilities. Therefore, the L. must: • Pay to the Tenant $1,453.00, which represents damages resulting from the L.’s breaches of the Act A. costs. • Pay an administrative fine of $1,000.00 to the Board. 2. The crux of the Tenant’s application surrounds events T. took place on June 6, 2023. Where it is undisputed T. the L. changed the key combination to the lock of the Tenants rental unit, prohibiting him from retaining entry to the rental unit. The L. O. Page 1 of 6  File Number: LTB-T-048685-23 acknowledged T. he moved the Tenant’s belongings out of the rental unit on June 6, 2023. 3. The L. also acknowledged T. there was no O. of the Board evicting the Tenant from the rental unit, no notice of termination was served on the Tenant, A. there was no 2023 ONLTB 66155 (CanLII) written agreement terminating the tenancy. The L. testified T. he changed the locks A. moved the Tenant’s belongings out of the rental unit due to safety concerns F. his family. 4. The L. also submitted T. there was a verbal agreement A. T. the Tenant had an intent to leave June 1, 2023. 5. Based on the evidence adduced at the hearing, I find T. the L. entered the rental unit illegally, in contravention of 26 A. 27 of the Act, A. altered the locking system in contravention of section 24 of the Act. ANALYSIS & REMEDIES Illegal Entry: 6. Section 25 of the Act states T. a L. may only enter a rental unit on in accordance with the Act. 7. Section 26 of the Act states in part, T. a L. may enter a rental unit at any time without written notice in cases of an emergency or if the tenant consents at the time of entry. 8. Based on the evidence it does not appear T. the Tenant consented to the entry by the L. on June 6, 2023, as it was undisputed T. he was at work at the time the L. entered the rental unit A. removed his belongings. The L. may have also had his own reasons as to why he accessed the rental unit A. the items were removed, however they do not amount to an “emergency” T. the Act generally contemplates (fire, flood, something requiring immediate attention). The L. did not serve a notice of entry A. therefore, I find T. he entered the rental unit illegally. Illegal Lockout: 9. Section 24 of the Act states: Alandlord 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. 10. Section 39 of the Act states: O. Page 2 of 6  File Number: LTB-T-048685-23 Alandlord shall not recover possession of a rental unit subject to a tenancy unless, a) the tenant has vacated or abandoned the unit; or b) an O. of the Board evicting the tenant has authorized the possession. 2023 ONLTB 66155 (CanLII) 11. The simplest characterization of what happened in this case is T. the L. engaged in self remedy A. did not follow due legal process. The L. may have had his motives in wanting to evict the Tenant, however the Board A. the Act have processes in place, none of which include changing the locks on the Tenant, removing their belongings from the rental unit, A. essentially rendering them homeless. 12. In tenant applications the most common remedy awarded is abatement of the rent. Abatement is a contractual remedy which is designed to address the idea T. if a tenant is paying rent F. a bundle of goods A. services A. not receiving them, then the rent should be abated in an amount proportional to the difference between what is being paid F. A. what is being received. The unit was obviously not abandoned as the Tenant was sleeping in the unit the night before June 6, 2023, A. there was no O. of the Board authorizing possession. Therefore, I find T. the L. illegally evicted the Tenant. Remedies: 13. The Tenant, in their application seeks a rent abatement of $1,400.00 which equates to 100% abatement F. one month. 14. The difficulty T. arises in the context of a breach of privacy rights under the Act is T. abatement of the rent is not a good fit as a remedy. I say this because a single breach such as the one here may only deprive the tenant of his or her right to privacy F. one day, which given what abatement represents, would seem to limit the available remedy to abatement of the rent F. one day. In an average tenancy such a remedy results in an amount T. seems to me to be woefully inadequate. F. example, in the case here an abatement of one day would be only $46.03. Furthermore, awarding abatement F. breach of privacy fails to get at the full impact of the breach, which often results in lingering feelings of violation T. can continue indefinitely into the future. 15. However, the Divisional Court in Mejia v. Cargini, [2007] O.J. No. 437, found T. the phrase “any other O. T. it considers appropriate” in the remedies section of the Act (which is now found in paragraph 31(1)(f)) means T. the Board has the power to award “damages F. the breach of contract of lease”. F. the reasons stated above it seems to me T. in breach of privacy cases, approaching remedy as a matter of damages arising from a breach of the tenancy agreement is more logical A. appropriate than describing the remedy as abatement of the rent. 16. The leading case with respect to breach of privacy is Wrona v. Toronto Community Housing Corp., [2007] O.J. No. 423 (Ont. Div. Ct.). In T. case the Tenant was provided O. Page 3 of 6  File Number: LTB-T-048685-23 with notice but the notice failed to meet the mandatory requirements of what is now section 27 in T. the time of entry was a window of several hours rather than a specific time. The Court awarded the tenant $1,000.00 F. a single illegal entry. As Wrona is the leading case from the higher courts of Ontario with respect to privacy rights, I believe the remedy awarded by the Court in T. case is the starting point F. D. the appropriate 2023 ONLTB 66155 (CanLII) amount to award the Tenant in this case. 17. In Wrona there had been at least one previous application brought to the Tribunal by the tenant about the same issue. In other words, there was a history of dispute between the parties about what constituted a legal entry. Here there was no prior application between the parties. The other significant difference between the two cases is T. in Wrona the tenant was provided some notice to the entry, albeit the notice was invalid. In the present case the Tenant was provided no advance notice A. came home from work to find the locks changed A. his stuff removed from the rental unit. Later T. night he went to stay at a family trailer. 18. Based on the precedent established by Wrona, the differences between the two cases, my knowledge of previous applications before the Board, A. the evidence of impact on the Tenant of the L.’s actions, I am of the view T. a reasonable amount F. damages arising from the L.’s illegal entry A. illegal lockout of the rental unit is $1,400.00. Other Remedies: 19. On consent of the parties, the Tenant no longer seeks recovering possession of the rental unit, to recover their possessions, or F. the L. to pay costs associated with damaged, destroyed, or disposed of property. As such the application is amended to remove these claims. 20. The Tenant, in their application also sought out-of-pocket expenses in the amount of $3,500.00. Which represents an anticipated first A. last month’s rent in a new rental unit. However, the Tenant did not adduce any evidence to support this claim. Did not provide a lease agreement to a new place nor proof T. they paid a L. first A. last at another property. If a party is claiming an out-of-pocket expense, I find it only logical T. they would retain proof of same A. rely on it as evidence at the hearing. As this was not done this claim is dismissed. 21. Finally, the Tenant requests T. the Board imposes an administrative fine on the L.. The Board’s Guideline 16 suggests T. the purpose of a fine is to encourage compliance with the Act A. to deter landlords from engaging in similar activities in the future. It goes on to say “this remedy is most appropriate in cases where the L. has shown a blatant disregard F. the Act A. other remedies will not provide adequate deterrence A. compliance.” O. Page 4 of 6  File Number: LTB-T-048685-23 22. On this point the L. stated T. they had mutually agreed on a date F. the Tenant to move out A. it appeared as though the Tenant was take an additional grace period A. T. the Tenant was a long-term friend T. he knew from high school A. was helping him out by letting him stay in the rental unit. 2023 ONLTB 66155 (CanLII) 23. The Act does not create different “classes” of tenants. The relationship of the parties in this case may be relevant in some degree, but not with respect to the rights afforded under this Act. Some fundamental principles of this Act are security of tenure, A. to prevent tenants from unlawful evictions [Emphasis added], which is exactly what happened here. There was also some acknowledgement of substance abuse issues T. the Tenant was working through at the time A. so T. could also increase the vulnerability of this individual. The L. also asserted T. he has been a L. F. at least 13 years in Ontario, A. so given this length in time I would expect a greater level of understanding of the Act A. a course of conduct T. demonstrates a respect F. our processes. 24. I am not satisfied T. the remedies sought by the Tenant A. granted in this O. would sufficiently deter the L. from engaging in similar activity in the future. It is a very serious breach of the Act to change a tenant’s locks illegally. This is behaviour T. warrants an administrative fine. 25. At the hearing the L.’s representative relied on two Board decisions; TNT-54848-12 A. NOT-00793-12 T. speak to quantum of an administrative fine. I am not bound by other Board decisions- however I find T. some of the considerations A. factual matrix are present in this case. As well as there are a considerable amount of other decisions issued by the Board which award $1,000.00 as an administrative fine, in these circumstances. Therefore, I find it appropriate to award the same $1000.00 fine in this case. Further, if there are such actions by the L. in the future, it should result in a substantially greater fine. It is ordered T.: 1. The total amount the L. shall pay the Tenant is $1,453.00. This amount represents: • $1,400.00, which represents damages arising out of the L.’s breaches of the Act. • $53.00 F. the cost of filing the application. 2. The L. shall pay the Tenant the full amount owing by October 29, 2023. 3. If the L. does not pay the Tenant the full amount owing by October 29, 2023, the L. will owe interest. This will be simple interest calculated from October 30, 2023 at 6.00% annually on the balance outstanding. O. Page 5 of 6  File Number: LTB-T-048685-23 4. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. 5. The L. shall pay to the L. A. Tenant Board an administrative fine in the amount of $1,000.00 by October 29, 2023. 2023 ONLTB 66155 (CanLII) October 18, 2023 ____________________________ Date Issued Curtis Begg 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. 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