LTB Order LTB-T-072660-22

O. under Section 31 Residential Tenancies Act, 2006 2023 ONLTB 71388 (CanLII) Citation: SOUTHGATE-NICHOLLS v B., 2023 ONLTB 71388 Date: 2023-11-03 File Number: LTB-T-072660-22 In the matter of: B, 75 BYRON AVENUE KITCHENER ON N2C1Z7 Tenant Between: M. SOUTHGATE-NICHOLLS A. L. K. B. M. SOUTHGATE-NICHOLLS (the 'Tenant') A. F. an O. D. T. K. B. (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 A. harassed, obstructed, coerced, threatened or interfered with the Tenant. (T2 Application) The Tenant also A. F. an O. D. T. the L. collected or retained money illegally. (T1) This application was heard by videoconference on October 16, 2023. The Tenant’s agent, Zoe Brown, the Tenant, the L.’s Legal Representative, Peggy Frost, A. the L. attended the hearing. Zoe Brown (ZB) has power of attorney F. property F. the Tenant. ZB filed the application on behalf of the Tenant A. represented the Tenant at the hearing. Determinations: 1. As explained below, the Tenant did not prove the allegations contained in the T2 application on a balance of probabilities. Therefore, the application is dismissed. T2 Application O. Page 1 of 6  File Number: LTB-T-072660-22 Relevant facts 2. The residential complex is a house. The rental unit is the main floor. The tenancy agreement also gave the Tenant exclusive access to a workshop attached to the house. The L. occupies the basement. 2023 ONLTB 71388 (CanLII) 3. The parties do not dispute the following facts T. are relevant to the application: • April 14, 2021: The Tenant was arrested A. removed from the rental unit by police. • April 15, 2021: ZB attended the rental unit, met with the L. A. removed some of her belongings from the rental unit. ZB told the L. T. she would attend the unit again on the weekend to remove additional items. • April 16, 2021: ZB texted the L. to attend the property. The L. informed ZB T. he spoke to his paralegal A. would not be able to let her in the unit or enter again himself until he posted 24-hour notice of entry on the door, which he was planning to do T. evening. • April 17, 2023: ZB attended the rental unit to gather the mail. In the mail was a notice of termination from the L. A. a note on the Tenant’s door advising T. the locks had been changed A. the Tenant was to contact the L. F. the keys. • April 24, 2021: ZB sent the L.’s representative an email, stating T. she had the Tenant’s permission to enter the rental unit to remove his belongings from the unit A. T. the Tenant’s representative would be sending a letter to confirm T. permission. The L.’s legal representative arranged F. ZB to receive a key to the rental unit T. evening. ZB entered the rental unit before the L. received confirmation from the Tenant’s representative T. ZB had the Tenant’s permission to remove his belongings. Therefore, when ZB entered the rental unit T. evening, the L. called the police to have her removed. • April 25, 2021: The Tenant’s legal representative provided confirmation T. the Tenant consented to ZB removing his belongings from the rental unit. The L. then told ZB T. she could come the following day because there had been a break-in in the unit the night before. • April 26, 2021: ZB got access to the rental unit to remove the Tenants belongings. • April 30, 2021: The parties signed an N11 with a termination date of April 30, 2021 A. the tenancy terminated pursuant to T. agreement. O. Page 2 of 6  File Number: LTB-T-072660-22 4. In the application, the Tenant alleges T.: • The L. entered the unit illegally on April 15, 2021, when ZB requested to go into the unit to retrieve a few of her personal belongings from the rental unit. 2023 ONLTB 71388 (CanLII) • The L. changed the locks on April 17th, 2021 A. did not provide the Tenant with a key. • The L. obstructed A. interfered with the Tenant by failing to allow ZB to remove personal belongings of the Tenant within a reasonable time period. Illegal entry 5. Based on the evidence before me, I am not satisfied on a balance of probabilities T. the L. entered the rental unit illegally. On April 15, 2021, ZB attended the property to retrieve some of her personal belongings A. the L. went into the unit to grab them A. ZB stood at the door. ZB has power of attorney F. the Tenant’s property. Since ZB consented to the L. entering the rental unit F. the purpose of removing ZB’s belongings from the unit, A. the L. entry the unit F. this limited purpose, I cannot find T. this was an illegal entry. Accordingly, this claim is dismissed. Changing the locks 6. Based on the evidence before me, I am not satisfied on a balance of probabilities T. the L. changed the locks without giving them to the Tenant. When the police attended the rental unit on April 15, 2021, they broken down the door to enter the unit A. arrest the Tenant. The police subsequently secured the rental unit before they left on April 15, 2021. In O. to ensure T. the unit was secure, the L. changed the locks. The L. posted a note on the rental unit door to advise the Tenant, if he returned to the unit, T. the locks had been changed A. T. he could get a copy of the new key from the L.. When ZB attended the rental unit on April 17, 2021 she saw this note on the rental unit door. 7. It subsequently took the L. A. his legal representative several days to confirm ZB’s relationship to the Tenant A. T. the Tenant gave her permission to remove his property from the unit. Once both the L.’s representative A. the L. were satisfied T. ZB was authorized by the Tenant A. had the Tenant’s consent to enter the rental unit A. remove the Tenant’s belongings, ZB was given a key to the rental unit. I find T. it was reasonable A. appropriate F. the L. to have denied ZB access to the rental unit as neither the Tenant nor ZB had provided him with the Tenant’s written consent proof to allow ZB to enter his rental unit A. remove his belongings until April 25, 2021. The L. had no legal obligation to provide ZB with access to the rental unit prior to receiving O. Page 3 of 6  File Number: LTB-T-072660-22 confirmation on April 25, 2021 T. the Tenant had authorized her to do so. ZB was given access to the unit the following day. Accordingly, this claim is dismissed. Obstructed or Interfered with the Tenant 2023 ONLTB 71388 (CanLII) 8. ZB alleges T. the L. obstructed or interfered with her ability to access the rental unit on behalf of the Tenant. The evidence before me establishes T. the Tenant did not provide the L. proof T. ZB had permission to enter the rental unit until April 25, 2021 A. ZB was given access to the unit the following day. There is no evidence to suggest T. the L. obstructed or interfered with ZB’s access to the rental unit on or after April 26, 2021. The Tenant himself was never denied access to the rental unit. 9. ZB further alleges T. the L. failed to secure the rental unit resulting in the loss of some of the Tenant’s belongings. However, the evidence establishes T. after the police broke down the door to the rental unit, the police secured the unit A. then the L. further secured the unit by changing the locks. There was insufficient evidence before me to prove T. the L. was responsible F. items going missing from the rental unit between April 15, 2021 when the Tenant was arrested A. April 26, 2021 when ZB removed the Tenant’s remaining belongings from the unit. F. example, there were no pictures of the unit A. its contents from before April 26, 2021 to compare with the photographs from April 26, 2021. On the other hand, there was evidence T. the police removed certain items from the rental unit when the Tenant was arrested A. T. there were several break-ins into the rental unit after the Tenant was removed. The L. is not responsible F. these events. 10. Newspaper articles submitted by the L. indicate T. police seized a number of items from the Tenant’s unit T. police believe were stolen. No evidence was presented by ZB establishing T. the L. failed to secure the rental unit following the Tenant’s removal by police 11. As the applicant, ZB bears the burden of proof. I find T. ZB has failed to sufficient establish T. the L. obstructed or interfered with her access to the rental unit or T. the L. is responsible F. any loss of items. T1 Application 12. As explained below, the Tenant did not prove the allegations contained in the application on a balance of probabilities. The L. did not illegally retain the Tenant's rent deposit. 13. The parties do not dispute T. at the beginning of the tenancy, the L. collected a rent deposit from the Tenant. However, the parties disagree about what happened to the deposit A. if/how it was used. O. Page 4 of 6  File Number: LTB-T-072660-22 14. The L. testified T. the Tenant did not pay his rent F. November 2020 A. instead the parties agreed T. the L. would apply the rent deposit to the Tenant’s rent F. T. month. The Tenant testified T. he did pay his rent F. November 2020 in cash, he paid all his rent dung the tenancy A. T. the L. is still holding his rent deposit, which should be returned to him. 2023 ONLTB 71388 (CanLII) 15. Based on the evidence before me, I prefer the L.’s evidence T. the parties agreed the rent deposit would be A. to November 2020’s rent A. it has, therefore, already been used. The L.’s evidence was specific A. it was corroborated by a detailed rent ledger T. he submitted. The ledger shows the Tenant’s other rent payments, including several payments T. were made in cash. On the other hand, the Tenant did not have any evidence to support his claim T. he paid the rent F. November 2020 (ex: his bank statement or a bank withdrawal slip). Accordingly, the L. is not ordered to pay the Tenant the rent deposit. 16. However, it was undisputed T. the L. did not pay the interest on the last months rent deposit. Accordingly, the L. shall be ordered to pay the Tenant $67.74, which represents interest on the deposit up to October 31, 2020, which is the last day of the rental period before the rent deposit was used. This amount is calculated as follows: • The rent deposit was $1,600.00. It was collected September 1, 2018. Interest is owing F. the period September 1, 2018 to October 31, 2020. • Interest owing F. September 1, 2018 – August 31, 2019: $28.80 • Interest owing F. September 1, 2019 – August 31, 2020: $35.30 • Interest owing F. September 1, 2020 – October 31, 2020: $5.88 • Total interest owing is $69.98 It is ordered T.: 1. The Tenant’s application about Tenant’s Rights (T2) is dismissed. 2. The total amount the L. shall pay the Tenant is $122.98. This amount represents interest owing on the last month’s rent deposit ($69.98) A. the cost of filing the application ($53.00). 3. The L. shall pay the Tenant the full amount owing by November 28, 2023. 4. If the L. does not pay the Tenant the full amount owing by November 28, 2023, the L. will owe interest. This will be simple interest calculated from November 29, 2023 at 7.00% annually on the balance outstanding. 5. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. O. Page 5 of 6  File Number: LTB-T-072660-22 November 17, 2023 ____________________________ Date Issued Teresa Hunt Member, L. A. Tenant Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 2023 ONLTB 71388 (CanLII) If you have any questions about this O., call 416-645-8080 or toll free at 1-888-332-3234. O. Page 6 of 6