LTB Order LTB-T-059904-22

Order under Subsection 135 Residential Tenancies Act, 2006 2023 ONLTB 63422 (CanLII) Citation: B. v TOOR, 2023 ONLTB 63422 Date: 2023-09-26 File Number: LTB-T-059904-22 In the matter of: BASEMENT UNIT - 146 HOWLAND A. T. O. M5R3B5 Between: J. B. N. P. T. A. Landlord JESSIE TOOR J. B. A. N. P. (the 'T.') applied for an order determining that JESSIE TOOR (the 'Landlord') collected or retained money illegally. This application was heard by videoconference on September 6, 2023. The Landlord, Jessie Toor (“JT”), A. the T., N. P. (“NP”) A. J. B. (“JB”) attended the hearing. Preliminary Issues: 1. At the onset of the hearing, the T. requested the application be amended to include “basement unit” in the address of the application A. be amended to seek the illegal retention of a $25.00 key deposit A. the recovery of the last month’s rent deposit in the amount of $1,450.00. The application filed seeks recovery of the last month’s rent deposit in the amount of $1,485.00. The Landlord consented to the amendments. Therefore, I granted the amendments. Determinations: 2. As explained below, the Tenant proved the allegations contained in the application on a balance of probabilities. Therefore, the Landlord must pay the T. $745.38. 3. The tenancy agreement commenced August 15, 2021 for a fixed term ending August 31, 2022. T.’ Evidence 4. The T. gave the Landlord a N9 notice with a termination date of February 28, 2022.  Order Page 1 of 4 2023 ONLTB 63422 (CanLII)  File Number: LTB-T-059904-22 5. The T. sought to end the tenancy even earlier A. advised the Landlord they would post advertisements online to assist the Landlord in finding a new tenant. On January 5, 2022, NP responded to a online message from a person named Tayania who was interested in the rental unit. NP provided the Landlord’s contact information to Tayania. 2023 ONLTB 63422 (CanLII) 6. NP testified the T. moved out January 21, 2022 A. advised the Landlord the keys were left in the storage room in the basement on January 22, 2022. Furniture was left in the unit as the Landlord had indicated there was a possibility of the new tenant wanting the furniture. After the Landlord informed them the new tenant did not want the furniture, the T. removed all belongings on January 29, 2022. 7. There was a group chat with all the T. of the property. NP submitted a screenshot of a message from another tenant in the property on February 9, 2022 advising the group: “the new downstairs tenant Tayania thinks she has heard rodent noises.” 8. The T. allege that the Landlord re-rented the unit A. there was a new tenant in the unit as of February 9, 2022. Therefore, the Landlord should refund them their last month’s rent deposit of $1,450.00 A. their key deposit of $25.00. Landlord’s Evidence 9. JT testified the T.’ furniture was not removed until the first week of February 2022 A. she eventually got the keys back but could not recall the date. 10. The unit was re-rented but the new tenant could not move in due to a mice problem that was discovered by the Landlord’s maintenance person the first week of February 2022. JT submitted that JB A. NP caused the mice problem by leaving the door or vent open while they were moving in the cold weather. JT had to address the mice issue before the new tenant could move in. 11. JT testified that while the new tenant was able to drop off belongings in the unit, the new tenant could not move in until February 15 or 20, 2022 A. JT could not charge rent until such date. The unit was re-rented for $1,500.00 inclusive of utilities. JT collected $3,000.00 for first A. last month’s rent deposit but could not recall what date the payment was made. 12. The Landlord alleges that the T. broke the lease as the fixed term ends August 2022 A. she incurred costs to re-rent the unit due to the T.’ unilateral decision to vacate early. The T. gave notice with a termination date of February 28, 2022 A. the unit was not occupied until after mid-February 2022 A. as such, the Landlord should not have to refund the T. the last month’s rent deposit A. the application should be dismissed. Analysis 13. Section 88 (1) of the Residential Tenancies Act, 2006 (the 'Act') stipulates: If a tenant abandons or vacates a rental unit without giving notice of termination in accordance with this Act A. no agreement to terminate has been made or the landlord has not given  File Number: LTB-T-059904-22 notice to terminate the tenancy, a determination of the amount of arrears of rent owing by the tenant shall be made in accordance with the following rules: 1. If the tenant vacated the rental unit after giving notice that was not in accordance with this Act, arrears of rent are owing for the period that ends on the earliest termination date 2023 ONLTB 63422 (CanLII) that could have been specified in the notice, had the notice been given in accordance with section 47, 96 or 145, as the case may be. 14. Section 47 of the Act states that: A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. [emphasis added] 15. Pursuant to the Act, the T. are liable for the rent for the period of notice they could have given to the landlord to properly terminate the tenancy. In this case, that would at the end of the fixed term A. the T. are potentially liable for rent up to A. including August 31, 2022. 16. I say “potentially” because I must also consider whether or not the parties took steps to mitigate their losses. Section 16 of the Act states: When a landlord or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses. 17. There is no dispute NP offered to assist the Landlord in finding a new tenant A. that the unit was occupied by a new tenant sometime in February 2022. 18. Based on the evidence before me, I find that the two tenancies overlap as of February 15, 2022. I am not satisfied that the T. proved that the new tenant moved in February 9, 2022. 19. The T. submitted a screenshot of a message from another tenant residing in the property on February 9, 2022 but the author of the message was not in attendance to provide direct evidence nor was any other T. that was residing at the property at that time in attendance. 20. The T. did not provide additional evidence that would lead me to a finding that the new tenant moved in or the Landlord was paid rent monies as of February 9, 2022 or earlier. 21. I find the Landlord’s testimony to be ambiguous as she could not remember the date for when the new tenant moved in, the date the new tenant paid the deposit, the date the mice problem was discovered A. corrected, A. the date she ultimately acquired the keys left by the T.. 22. However, the Landlord admitted that the unit was re-rented A. the new tenant moved in February 15 or 20, 2022. Therefore, I find it, more likely than not, the unit was re-rented A. the new tenant moved in as of February 15, 2022.  File Number: LTB-T-059904-22 23. The Landlord cannot collect rent from different T. for the same rental period. Therefore, I find that the T. are entitled for a refund of their last month’s rent deposit in the amount of $667.38, representing 14 days of rent at a daily rent of $47.67 from February 15, 2022 to February 28, 2022 the Landlord collected from the new tenant. 2023 ONLTB 63422 (CanLII) 24. With respect to the $25.00 key deposit, section 17 of O.Reg. 516/06 under the Act states that a Landlord can collect payment of a refundable key, remote entry device or card deposit, not greater than the expected direct replacement costs. 25. I find the Landlord, by her own admission, eventually acquired the keys to the rental unit from the T.. Therefore, the key deposit of $25.00 must be refunded to the T.. 26. As the T.’ application is successful, the T. are entitled to reimbursement for their costs of filing the application in the amount of $53.00. It is ordered that: 1. The total amount the Landlord shall pay the T. is $745.38. This amount represents: o $667.38 for the last month's rent deposit. o $25.00 for the key deposit. o $53.00 for the cost of filing the application. 2. The Landlord shall pay the T. the full amount owing by October 7, 2023. 3. If the Landlord does not pay the T. the full amount owing by October 7, 2023, the Landlord will owe interest. This will be simple interest calculated from October 8, 2023 at 6.00% annually on the balance outstanding. 4. The T. have the right, at any time, to collect the full amount owing or any balance outstanding under this order. September 26, 2023 Date Issued Vicky Liu Member, Landlord A. Tenant Board 15 Grosvenor Street, Ground Floor T. ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234.