LTB Order LTB-T-061675-22

Order under Section 30, 31 A. 135 Residential Tenancies Act, 2006 Citation: M. v S., 2023 ONLTB 20063 2023 ONLTB 20063 (CanLII) Date: 2023-03-08 File Number: LTB-T-061675-22 In the matter of: B, 723 JAMES STREET NORTH THUNDER BAY ONTARIO P7C5M7 Between: G. M. T. A. G. S. Landlord G. M. (the 'T.') applied for an order determining that G. S. (the ‘Landlord’) has collected or retained money illegally. G. M. (the 'T.') also applied for an order determining that G. S. (the 'Landlord') failed to meet the Landlord's 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 January 18, 2023. The Landlord G. S. A. co-owners of the property, DJ Connors, Maria S., attended the hearing. The T. A. the T.’s daughter attended the hearing. Background: 1. The T. signed a 3-year lease for the period October 2017 to October 31, 2020. On November 1, 2020, it became a month-to-month tenancy. 2. The T. paid $600.00 monthly rent from August 1, 2021, until March 31, 2022. 3. The T. paid $700.00 monthly rent from April 1, 2022, until the end of his tenancy in September 2022. 4. The T. moved out in September 2022 A. an automatic rent payment was made by the T. for October 2022 in the amount of $700.00. 5. D.J. Connors spoke on behalf of the Landlords. Determinations: T1 APPLICATION Order Page: 1 of 5  File Number: LTB-T-061675-22 Illegal rent increase 6. As explained below, the Landlord has collected rent in excess of the amount allowed by 2023 ONLTB 20063 (CanLII) the Residential Tenancies Act, 2006 (the 'Act') A. collected a charge which is not allowed by the ‘Act’. 7. The parties agreed that the Landlord verbally A. gave a written notice in March 2022 that the T.’s rent would increase from $600.00 to $700.00 on April 1, 2022. The parties agreed that the Landlord did not give the T. a Notice of Rent Increase (NORI) as required by s.116 of the Act. 8. Therefore, in accordance with s.116(4), the rent increase was void A. the lawful rent remained at $600.00 per month. 9. The Landlord collected $100.00 above the lawful amount from April1, 2022 through to September 2022. 10. The T. is entitled to be reimbursed for the illegally collected rent from April 1, 2022 to September, 2022 in the amount of $600.00 Monies retained illegally 11. It was the Tenants evidence that when he vacated the unit in September 2022 the $700 monthly rent charge was taken out of his account by automatic deposit A. not returned by the Landlord. The T. testified that the Landlord never returned this payment. 12. The Landlord did not dispute that he owes the T. the $700.00. He argued that it was the T.’s responsibility to inform the bank A. to cancel the automatic deposit. The Landlord further testified that when the Landlord A. T. were negotiating a settlement, the Landlord had agreed to send the T. a $1,100.00 cheque by mail with a second cheque of $700.00 sent separately. When the T. received $1,100.00, the T. called the Landlord A. advised that he was no longer in agreement with the proposal. The Landlord testified that he never sent the T. the $700.00. 13. Based on the evidence before me, the Landlord has collected A. retained money from the T. which is contravention of s.135(1) of the Act. 14. The Landlord will be ordered to repay the T. the $700.00 he retained illegally. T6 APPLICATION – MAINTENANCE T. evidence 15. As explained below, the T. has proven on a balance of probabilities the following allegations contained in the application. 16. The T. testified that in May 2022 his basement rental unit suffered a flood caused by clogged city pipes. It happened previously in August of 2021. The T. immediately Order Page: 2 of 5  File Number: LTB-T-061675-22 advised the Landlord “Nadine S.” who lived in the unit above from the T.. The Landlord called a company to come A. clear the water from the floor. 17. The T. testified that he could not stay in the unit, was not offered alternate living accommodations by the Landlord A. he stayed at a friend’s place. When he returned to 2023 ONLTB 20063 (CanLII) the unit he was told by the Landlord that they would need to remove A. replace the bottom of the walls due to water damage. The T.’s kitchen A. furniture had to be covered with plastic A. would not be able to live in the unit until the repairs were complete. 18. The T. testified that once he left his rental unit, the Landlord started doing repairs A. could not access his belongings because they were stacked in piles A. covered with large sheets of plastic. The T. submitted to the Board 25 photos of the unit as evidence. The photos confirm the T.’s submissions A. show the T.’s belongings piled A. covered with plastic, the lower portion of the drywall cut, the baseboards, doors A. trim missing. 19. The T. further testified that he didn’t have anywhere to stay so he stayed at his trailer. On July 5, 2022 he returned to his unit A. the repairs were not yet completed. The T.’s daughter testified that she had spoken to Nadine S. about finding a new place for the T. to stay A. was told that the Landlord’s insurance does not cover that expense that if the T. had insurance that his insurance would cover that expense. The T. did not have insurance. The T.’s daughter also asked if the Landlord’s could lower the rent. N.S. responded that the contractor should be done in two weeks but did not respond to request to lower the rent. 20. The T. stated that he continued to pay his rent on time during the months he was unable to live in the rental unit. Landlord evidence 21. The Landlord did not dispute that the unit had a flood. He stated the flood happened on April 23, 2022. 22. The Landlord testified that they cleaned up the water but the water was still seeping in A. the T. continued to mop it up. 23. The Landlord was informed on May 14, 2022, by his insurance company that they could not start the renovation repairs until the September 2022 or the fall. He then contacted a private contractor to complete the remediation. The contractor took off 2 feet of drywall, baseboard, frames A. doors. The Landlord covered everything with plastic. 24. The Landlord testified that the T. was told to let the Landlord know when he was returning, A. he would have the unit finished A. fixed for him. 25. The Landlord testified that they tried to do the repairs as soon as possible A. that they were completed by the end of September 2022. He stated the unit was habitable A. advised the T. that they would make it more livable. Order Page: 3 of 5  File Number: LTB-T-061675-22 Analysis A. Legislation 26. Section 20(1) of the ‘Act’ states that: 20 (1) A landlord is responsible for providing A. maintaining a residential complex, 2023 ONLTB 20063 (CanLII) including the rental units in it, in a good state of repair A. fit for habitation A. for complying with health, safety, housing A. maintenance standards. 27. In Onyskiw v. CJM Property Management, 2016 ONCA 477 (CanLII), the Court of Appeal determined that a contextual approach should be adopted when considering a landlord’s potential breach of subsection 20(1) of the Act A. a breach will not be found if the landlord’s response to a maintenance issue was reasonable in the circumstances. 28. The Landlord was not responsible for the flood in the T.’s unit on April 23, 2022, A. I am satisfied that the Landlord took reasonable steps to dry up the water immediately after the flood. The Landlord also had an obligation to the T. to complete the repairs promptly make all efforts to address the disrepair A. to ensure the unit was habitable. I find that the Landlord did not meet this obligation A. was therefore in breach of s.20(1) of the Act. 29. Both parties confirmed that the repairs were finalized in September 2022, approximately five months after the flood. While the Landlord testified that they did the best they could under the circumstances, I do not find 5 months a reasonable time to complete the repairs. The Landlord waited for the Insurance company to respond A. were advised the work would be completed in the fall. The Landlords then contacted a private contractor for the repairs however they were not completed in a timely manner. There was no explanation as to why the contractor remediation took so long to finalize. I also find it unreasonable for the Landlord to require the T. to specify a date when he wanted to return to his unit. The Landlord should have taken all steps to have the repairs completed as quickly as possible. Furthermore, the Landlord did not offer any rent reduction or alternative accommodation A. the T. continued to pay his rent in full A. on time every month. 30. Based on the evidence summarised above, I am satisfied that the Landlord did not respond in a timely manner of repairs after the flooding occurred A. the T. is entitled to some remedy. REMEDY 31. Abatement of the rent is a contractual remedy designed to address the idea that if a T. is paying for a bundle of goods A. services A. not receiving them, the rent should be abated proportional to the difference between what was being paid for A. what was being received. 32. The T. is seeking a rent abatement in the amount $2,100.00 which represents a 100% rent abatement for $700 for three months. Order Page: 4 of 5  File Number: LTB-T-061675-22 33. In this case the T. provided photographic evidence of the state of the rental unit. I find the T. credible based on the photos A. his testimony that the unit was completely inhabitable. The T. thru the daughter request had made attempts to have alternate living arrangements until the T. can return. The Landlord testified that the unit was 2023 ONLTB 20063 (CanLII) habitable but did not provide A. further proof that it was. As such the T. has shown that on a balance of probabilities it was more likely than not the unit was inhabitable for the T.. The T. will be awarded 100 % abatement of rent for the three months the T. claimed in the application in the amount of $1,800.00. 34. The T. is seeking an order which prevents the Landlord from increasing the rent until the work has been finished. The T. also is requesting the Landlord not to give two months notice. Since the Landlord A. the T. have confirmed the T. is no longer in the unit as of the end of September 2022, it is no longer necessary to consider this relief. It is ordered that: 1. The Landlord shall pay to the T. sum of $1,300, for the illegal rent increase A. the monies collected A. retained illegally. 2. The Landlord shall pay to the T. $1,800.00 for the rent abatement for the three months the T. claimed. 3. The Landlord shall also pay the T. $53.00 for the cost of filing the application. 4. The total amount the Landlord owes to the T. is $3,153.00 5. If the Landlord does not pay the T. the full amount owing by March 5, 2023, the Landlord will owe interest. This will be simple interest calculated from March 6, 2023, at 5.00% annually on the outstanding balance 6. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this order. March 8, 2023 Date Issued Nicole Huneault Member, Landlord A. T. Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. Order Page: 5 of 5