LTB Order LTB-T-073562-22

O. under Section 31 Residential Tenancies Act, 2006 2023 ONLTB 74363 (CanLII) Citation: H. v G., 2023 ONLTB 74363 Date: 2023-11-20 File Number: LTB-T-073562-22 In the matter of: 7 Pender Cres Scarborough ON M1T2M8 Between: G. H. T. C. X. A. L. G. L. G. H. A. C. X. (the 'T.') A. F. an O. D. T. L. G. (the 'L.') A. the L.'s agent harassed, obstructed, coerced, threatened or interfered with them, entered the rental unit illegally, substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of their household A. withheld or deliberately interfered with the reasonable supply of a vital service T. the L. is obligated to supply under the tenancy agreement. (T2 application). This application was heard by videoconference on July 6, 2023. The L.’s superintendent C. Chen, L.’s legal representative R. Yu A. the T. attended the hearing. Determinations: 1. As explained below, the T. proved the allegations contained in the application on a balance of probabilities. Therefore, the L. must pay a fine to the LTB in the amount of $1,600.00 A. the L. must pay the T. $45.00 F. their costs to file the application. 2. The T. moved into the unit May 19, 2019 A. they moved out of the unit February 1, 2020. Illegal entry 3. The Tenant GH testified T. the L.'s Superintendent (CC) who is the daughter of the L., entered the rental unit illegally on a weekly basis. He testified T. CC would arrive, O. Page 1 of 7  File Number: LTB-T-073562-22 mostly unannounced several times per week to check mail A. sometimes visit the men living in the lower level of the rental complex. He testified T. most often, CC was dropped off by a person who would pick her up within an hour, to two or three hours after dropping her off. He testified T. CC typically entered via the main entrance to the unit A. would, on occasion, sit in their living area to wait F. her ride to pick her up. He testified T. they asked 2023 ONLTB 74363 (CanLII) CC several times to give them notice if she was coming or use the side door entrance which leads to the lower level. He testified T. her response was to barrage the T. with profanity, citing T. she C. do what she likes as she is the L., A. making derogatory comments toward the T. about their financial status. The T. did not log all dates of entry, however GH had records of CC entering the unit on November 15, 2019 without notice after 8 pm. On November 21, 2019, GH testified T. he discovered the L. in their unit in the middle of the night, between 2:30 A. 3:00 am. The L. was at the main entrance of their unit in her pyjamas smoking with the main door open. GH testified T. the incident startled him a great deal. They later realized T. the L. had arrived from China A. was sleeping in one of the bedrooms in the lower level of the complex. 4. The L. did not attend the hearing A. the superintendent CC denied entering the unit without notice. Substantial interference, harassment, threats 5. The Tenant HG testified T. the harassment A. interference began in September 2019. On September 17, 2019, CC sent a message to the T. demanding T. they remove an item out of the sink in their unit A. to be more mindful of their electricity usage. He believes T. CC had entered their unit unlawfully on this date, otherwise, she would have no way of knowing what was in their kitchen. He testified T. they received multiple text messages from CC which were7\1.aggressive A. insulting in nature. 6. HG testified T. when the L. showed up in November 2019 she began to harass the T. to move out of the unit. She did this verbally A. by phone on at least 4 occasions over a two-week period T. the L. was present at the rental complex. He testified T. the L. threatened them by stating “I have ways of making you change your mind about moving”. This caused the T. to live in fear because they were new to Canada A. did not fully understand their rights as T.. Shortly thereafter, construction began in the lower level. The work was done by one of the occupants in the lower level, WJ, who is related to the L. A. is the on-site property manager. HG testified T. the construction started late November with no notice to them A. went on F. the duration of their tenancy. There was daily noise of saws, banging, drilling, etc., A. a lot of dust. Construction occurred daily, all day A. often into the evenings. This continued right up to the date the T. moved out of the unit. He testified T. there was an altercation with WJ when the T. complained about the renovation noise to the L. A. the fact T. they had no heat. GH testified T. WJ showed up banging on their bedroom door on January 14, 2020, angry at them F. calling 311 about the heat issue. GH testified T. WJ was verbally aggressive O. Page 2 of 7  File Number: LTB-T-073562-22 A. they found this intimidating. GH testified T. they ultimately decided to move out of the unit because of the harassment, lack of heat A. disruption from the renovations. 7. The Tenant CX also testified to the harassment, T. CC was very rude A. used abusive language toward them. She testified T. CC told them to move if they didn’t like it there A. 2023 ONLTB 74363 (CanLII) demanded rent earlier than the due date. She testified T. the construction noise was very bothersome, often going into the late evening, after 10 pm. The T. entered audio A. video evidence of some of the noise they encountered during the renovations. 8. The L.’s superintendent CC denied mocking the T. about their financial status. She testified T. she sent reminders about saving energy in the unit but never harassed or used abusive language toward the T.. She denied asking F. rent before the due date. She also denied refusing to address issues raised by the T.. She testified T. she relayed all concerns of noise, maintenance, including the heat issues to the property manager. She testified T. the T. were advised in advance of the renovations starting A. T. efforts to minimize inconvenience F. T. included hanging the plastic cloths to keep dust contained in the lower level. 9. The L.’s property manager, WJ testified T. he lives in the lower level of the rental complex. He testified T. he started doing minor renovations in November 2019 F. the L.. He testified T. he typically worked between 10 am A. 7 pm, 5 or 6 days a week. He testified T. he set up plastic sheeting A. protective cloth to separate the Tenant’s unit from the area under renovation. He testified T. his work did not produce significant noise on a regular basis A. if there was expected noise on a given day, he would notify the T. ahead of time. He testified T. one other person worked with him A. the work lasted about a month. He denied having any disputes with the T.. He testified T. once the T. questioned him about having heat in the house. It was not an argument, just a discussion A. he attempted to address the matter. Vital services 10. The T. testified T. the unit’s temperature was up A. down over the winter A. always well below 20 degrees Celsius. On January 14, 2020, they had no heat in their bedroom or kitchen. They had called 311 to complain about this issue as it was not being addressed by the L.. GH testified T. the issue was with regulation of heat throughout the complex due to inadequate ventilation. The heat was kept lower in an attempt to average out the temperature in the property. Some areas are too warm, A. some are too cold. This resulted in the T. having insufficient heat in their unit. GH testified T. WJ did attempt, but was not able to fix the lack of heat issue. 11. The L.’s witnesses did not dispute the heating issue in the unit. Analysis O. Page 3 of 7  File Number: LTB-T-073562-22 12. Subsection 21(1) of Residential Tenancies Act, 2006 (the 'Act') states T. a L. shall not at any time during a tenant’s occupancy of a rental unit withhold the reasonable supply of any vital service or deliberately interfere with the reasonable supply of any vital service. 13. “Vital Service” is defined in subsection 2(1) of the Act as “hot or cold water, fuel, electricity, 2023 ONLTB 74363 (CanLII) gas or, during the part of each year prescribed by the regulations, heat.” The Act also defines as part of vital services heat from September 1 to June 15, in most cases a minimum temperature of 20 degrees Celsius as set out in section 4 of O. Reg. 516/06. 14. Section 22 of the Act states: A L. shall not at any time during a tenant’s occupancy of a rental unit A. before the day on which an O. evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located F. all usual purposes by a tenant or members of his or her household. 15.Section 23 of the Act states T. a L. shall not harass, obstruct, coerce, threaten or interfere with a tenant. 16. Section 25 of the Act established a Tenant’s right to privacy A. states T. a L. may enter a rental unit only in accordance with section 26 or 27. 17. Pursuant to section 26 of the Act L. is permitted to enter a rental unit without notice: in emergencies; where the tenant consents at the time of entry; where the tenancy agreement requires the L. to enter at regular intervals in O. to clean; A. to show the unit to prospective T.. 18. Subsection 27(1) of the Act states T. a L. may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry. 19. Based on the evidence before me A. on a balance of probabilities, I find T. the conduct of the L. A. L.’s superintendent CC constitutes a breach of sections 22, 23 A. 27 of the Act. 20. I do not find T. the L. has breached subsection 21(1) of the Act, which prohibits the L. from withholding or interfering with the reasonable supply of heat in the Tenant’s unit. The Tenant’s evidence is T. there was an issue with the heating/HVAC system which is failing to vent heat evenly throughout the property. I accept the Tenant’s evidence T. in January 2020, there was insufficient heat in their unit A. they called 311. However, based on the T.’ evidence I find T. the lack of heat is not as a result of the L. deliberately withholding or interfering with the reasonable supply of heat, but rather, as a result of the failure to maintain the heating system. Accordingly, I do not find there is a breach under subsection 21(1) of the Act A. this portion of the claim is dismissed. O. Page 4 of 7  File Number: LTB-T-073562-22 21. I find T. CC A. the L. interfered with the T.’ reasonable enjoyment of the unit, harassed A. threatened the T. A. in contravention of sections 22 A. 23 of the Act A. T. this conduct caused the T. to move out of the unit. CC testified T. she never used harsh or profane language toward the T., however, the evidence before me contradicts this assertion. Text messages entered into evidence clearly demonstrate a very 2023 ONLTB 74363 (CanLII) harsh A. aggressive tone A. at times, with the use of profanity by CC toward the T.. I found the T. to be forthright A. credible in their testimonies. The L. chose not to attend the hearing to refute the T.’ allegations T. the L. harassed them A. threatened to find ways to make them move. Based on the evidence before me A. on a balance of probabilities, I am satisfied T. the harassment, threats A. interference by the L. A. CC caused the T. to move. 22. There was insufficient evidence led by the T. F. me to determine T. CC demanded rent before the due date. I am also not satisfied T. L. began construction in an effort to force the T. to move. I find T. it is more likely a coincidence T. renovations began about the same time T. the relationship broke down. T. said, the evidence before me supports T. the T. dealt with noise A. some level of disturbance F. the last two months of the tenancy which I find rises to a level of interference with the T.’ enjoyment of the unit A. their ultimate decision to move. 23.I do not find T. WJ harassed or threatened the T. in contravention of section 23 of the Act. In reviewing the text messages between the T. A. WJ, I find T. the parties reached a level of frustration on both sides over heating problems A. renovations, however, the text messages point to the parties being amicable with each other overall. In fact, the parties confirm several times T. they do not have an issue with each other. Therefore I do not find T. the communications between the L.’s property manager WJ A. the T. rises to a level of harassment or threats toward the T.. 24. I find T. CC unlawfully entered the rental unit without notice in contravention of section 27 of the Act on November 15, 2019 A. the L. entered unlawfully on November 21, 2019. I also find T. on a balance of probabilities, CC entered the unit unlawfully on September 17, 2019 when she ordered the T. to move an item from their sink A. to turn lights off. While the above were the only exact dates provided, I accept the testimony of the T. T. there were many additional unlawful entries by CC during the tenancy. Remedies 25. The T. requested T. the Board O. an administrative fine against the L. in the amount of $1,600.00 A. T. the Human Rights Tribunal (HRTO) review this matter. 26. As explained to the T. at the hearing, the L. A. Tenant Board (LTB) is a body separate A. apart from the HRTO A. the LTB has no jurisdiction to refer matters to the HRTO. The T. were urged to seek legal advice in relation to Human Rights. O. Page 5 of 7  File Number: LTB-T-073562-22 27. This leaves me to consider the T.’ request F. an administrative fine to be ordered. Administrative fines are described in the Board’s Interpretation Guideline 16 which states: An administrative fine is a remedy to be used by the Board to encourage compliance with the Residential Tenancies Act, 2006 (the "RTA"), A. to deter landlords from 2023 ONLTB 74363 (CanLII) engaging in similar activity in the future. This remedy is not normally imposed unless a L. has shown a blatant disregard F. the RTA A. other remedies will not provide adequate deterrence A. compliance. Administrative fines A. rent abatements serve different purposes. Unlike a fine, a rent abatement is intended to compensate a tenant F. a contravention of a tenant's rights or a breach of the L.'s obligations. 28. I find T. this is an appropriate case F. an administrative fine to promote deterrence. I say this because the T. failed to request any other remedies under this Board’s jurisdiction, so there is no monetary award to the T. other than reimbursement of their costs to file the application. I find such an O. to be unlikely to ensure adequate deterrence. 29. In terms of quantum, the Board’s Interpretation Guideline says: In setting the amount of the fine, the Member may consider: • the nature A. severity of the breach • the effect of the breach on the tenant • any other relevant factors. The amount of the fine should be commensurate with the breach 30. In this case, I find the nature A. severity of the L.’s breach to be substantial. CC gave very inconsistent testimony during the hearing in an effort to circumvent the Act. I find T. the L. A. CC took full advantage of the T.’ lack of information, being new to Canada A. unfamiliar with their rights under the Act. This type of behaviour on the part of landlords must be condemned. Given the above A. my knowledge of similar cases before the Board, I find the T.’ request F. a fine in the amount of $1,600.00 to be reasonable in all of the circumstances. It is ordered T.: 1. The total amount the L. shall pay the T. is $45.00 F. the cost of filing the application. 2. The L. shall pay the T. the full amount owing by December 1, 2023. 3. If the L. does not pay the T. the full amount owing by December 1, 2023, the L. will owe interest. This will be simple interest calculated from December 2, 2023 at 7.00% annually on the balance outstanding. O. Page 6 of 7  File Number: LTB-T-073562-22 4. The Landlords shall pay to the L. A. Tenant Board an administrative fine in the amount of $1,600.00 by December 1, 2023. 2023 ONLTB 74363 (CanLII) November 20, 2023 ____________________________ Date Issued Donna Adams 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. Payment of the fine must be made to the LTB by the deadline set out above. The fine C. be paid by certified cheque, bank draft or money O. made payable to the Minister of Finance. If paying in person, the debt C. also be paid by cash, credit card or debit card. O. Page 7 of 7