LTB Order LTB-T-073742-22

2023 ONLTB 42881 (CanLII) O. under Section 31 Residential Tenancies Act, 2006 Citation: CUERVO-LORENS v Z., 2023 ONLTB 42881 Date: 2023-10-31 File Number: LTB-T-073742- 22(CET-94007-20) In the matter of: 429 LADYCROFT TERRACE MISSISSAUGA ON L5A0A7 Tenant Between: R. CUERVO-LORENS A. L. X. Z. A. L.’s A. B. W. R. CUERVO-LORENS (the 'Tenant') A. F. an O. D. that X. Z. (the 'L.') A. B. W. (the ‘L.’s A.’): • entered the rental unit illegally. • substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of their household, A. • harassed, obstructed, coerced, threatened or interfered with the Tenant. This application was heard by videoconference on October 12, 2022. It was heard together with LTB-L-081875-22 (HOL-07041-20) which involved different parties A. issued separately. The L., the L.’s A. A. the Tenant attended the hearing. At the hearing, the parties agreed to amend the application to adjust the Tenant’s requested abatement amount to $7,020.00, A. to remove remedies related to a separate proceeding in O. Page 1 of 10  File Number: LTB-T-073742-22 CET-94007- 20 another jurisdiction. The application was also amended to add an additional allegation of illegal entry A. an additional allegation related to L.’s applications. Determinations: 2023 ONLTB 42881 (CanLII) Preliminary Matter: Naming of Parties 1. The Tenant acknowledged that the L. meets the definition of L. under the Residential Tenancies Act, 2006 (the ‘Act’), but argued that the unit was actually owned by another person who lived outside the country, A. the Tenant was concerned that any O. would not be enforceable. The L. A. the L.’s real estate A., B. W. (the ‘L.’s A.’) acknowledged that they were the named parties in the application A. understood that they would be responsible F. any amount ordered against them in the O.. The Tenant accepted the assurances of the L. A. the L.’s A., A. the hearing proceeded on its merits. T2 application 2. In their T2 application, the Tenant alleges that the L. A. the L.’s A.: • Entered the rental unit illegally, 3. The Tenant further alleges that the L. substantially interfered with the Tenant’s reasonable enjoyment of the unit by • Failing to honour the tenancy agreement, A. • Serving multiple eviction notices. 4. These allegations also formed the basis of the Tenant’s allegation that the L. A. the L.’s A. engaged in a pattern of harassment of the Tenant. 5. I am bound by the findings in Board O. HOL- 05817-19-RV, issued on December 27, 2019. The O. was voided by the Tenant. Therefore, I have not made findings with respect to the lawful monthly rent, arrears owing to January 14, 2020, A. the last month’s rent deposit. However, I have considered the parties’ testimony with respect to the Tenants rent payments as they relate to the Tenant’s allegations with respect to the lease A. service of eviction notices. 6. The Tenant vacated the unit on April 14, 2021. O. Page 2 of 10  File Number: LTB-T-073742-22 CET-94007- 20 7. The sale of the property closed on April 16, 2021. 8. The rental unit is a house with an attached garage. Illegal Entries 2023 ONLTB 42881 (CanLII) August, 2019 – February, 2020 9. In their T2 application, the Tenant alleges that the L.’s A. entered the unit illegally on multiple occasions. 10. The Tenant testified that when the L. informed the Tenant that they planned to list the property F. sale, the Tenant asked that the L.’s A. to serve the Tenant with notices of entry by email at least 24 hours prior to entering the unit. The Tenant argued that posting a notice of entry on the door to the unit was not “effective notice,” as he might not see the notice. The Tenant testified that the L.’s A. mostly complied with the Tenant’s request, but identified 6 occasions that the L.’s A. entered the unit after posting a notice of entry to the door between August, 2019 A. February 2020. 11. The Tenant submitted copies of the notices of entry A. email communications between the L.’s A. A. the Tenant into evidence. 12. The L.’s A. testified that they posted Notices of Entry in accordance with the Residential Tenancies Act, 2006 (the ‘Act’) A. that written notice was provided to the Tenant at least 24 hours before each entry. Each Notice of Entry notes reason F. entry A. the time that the notice was posted. 13. While L. may choose to accommodate Tenants’ requests with respect to entries to the unit, the L. has a right to enter the unit on 24 hours written notice in accordance with Section 27 of the Act, which reveals: 27 (1) 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 under the following circumstances: 1. To carry out a repair or replacement or do work in the rental unit. 2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit. 3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998. 4. To carry out an inspection of the rental unit, if, i. the inspection is F. the purpose of D. whether or not the rental unit is in a good state of repair A. fit F. habitation A. complies with health, safety, housing O. Page 3 of 10  File Number: LTB-T-073742-22 CET-94007- 20 A. maintenance standards, consistent with the L.’s obligations under subsection 20 (1) or section 161, A. ii. it is reasonable to carry out the inspection. 5. F. any other reasonable reason F. entry specified in the tenancy agreement. 2023 ONLTB 42881 (CanLII) (2) A L. or, with the written authorization of a L., a broker or salesperson registered under the Real Estate A. Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. Contents of notice (3) The written notice under subsection (1) or (2) shall specify the reason F. entry, the day of entry A. a time of entry between the hours of 8 a.m. A. 8 p.m. 14. Rule 3.2 of the Board’s Rules of Procedure provides: 3.2 A notice of entry under section 27 of the RTA may also be served by posting it on the door of the rental unit. 15. In the present case, it is not disputed that the L. served the 6 notices of entry in question in accordance with the above provisions of the Act A. the Board Rules. Therefore, based on the evidence before me, I find, on a balance of probabilities, that the L. or the L.’s A. did not enter the Tenant’s unit illegally between August 2019 A. February 2020. February 14, 2021 entry 16. It is not disputed that the L.’s A. entered the unit without notice to serve an N12 Notice of Termination on February 14, 2021. The Tenant was not at home, A. discovered that the L. A. the L.’s A. had entered the unit, when he returned home. The Tenant alleges that this entry was concerning to him because he had not been informed, A. that the L.’s A. was aware of the Tenant’s concerns about the security of his possessions A. his confidential documents. 17. Therefore, I find that the L.'s A. entered the rental unit illegally on February 14, 2021, A. in view of the impact of the illegal entry on the Tenant, I determined that a rent abatement of $500.00 is appropriate under the circumstances. O. Page 4 of 10  File Number: LTB-T-073742-22 CET-94007- 20 Lease 18. The Tenant entered a tenancy agreement with the L. on June 24, 2018 F. a term ending July 14, 2019. The Tenant submitted a copy of the lease into evidence. The Tenant 2023 ONLTB 42881 (CanLII) paid by post-dated cheques A. provided the last month’s rent deposit A. 11 post-dated cheques to the L.. The L. testified that the Tenant requested to pay by postdated cheque. 19. In May, 2019, the L. contacted the Tenant by email to negotiate a new one-year lease beginning in July, 2019 at an increased rent. The Tenant submitted email communications with the L. A. the L.’s A. into evidence. 20. In their response to the email, the Tenant argued that the L. could only increase the rent by the guideline amount in accordance with the Act, A. informed the L. that he would agree to a one-year extension of the lease, with at a rent increase of 1.8%, the Board’s guideline rent increase. 21. The L. responded to the Tenant by agreeing to a 1.8% increase, stating that the new rent would be $2,350.00. The L. did not mention a renewal period in her response, A. no new lease was signed. The Tenant provided the L. with 5 postdated cheques in the amount of $2,350.00 dated July 15, 2019 through November 15, 2019, A. promised to provide the remaining cheques as soon as he received new cheques from his bank. 22. The emails reveal that after the Tenant gave the cheques to the L., he informed the L. that the rent increase was closer to 2.2%, A. the L. confirmed that they had made a calculation error. The Tenant sent an email to the L. on June 18, 2019, asking the L. to destroy the cheques, A. stating that he would replace them with new cheques at the correct rent once he received new cheques from his bank. 23. It is not disputed that the Tenant did not pay the June 15, 2019 rent. The Tenant testified that he thought that his last month’s rent deposit should be A. to the June rent because the previous lease ended on July 14, 2019. The Tenant’s documentary evidence reveals that the L. A. the L.’s A. repeatedly requested that the Tenant pay their June rent. 24. The L.’s A. sent a clarifying email to the Tenant on June 27, 2019. It outlined that the tenancy would continue on a month-to-month basis, the L. would hold the last month’s rent deposit until the last month of the tenancy, that the L. would pay the interest on the last month’s rent deposit, A. that rent was due F. June 15, 2019. The rent increase would be A. to the September 15, 2019 rent. O. Page 5 of 10  File Number: LTB-T-073742-22 CET-94007- 20 25. The Tenant did not respond to the L.’s A.’s June 27, 2019 email or follow-up emails, A. the L. served the Tenant with an N4 Notice of Termination F. the outstanding rent F. June 15 on July 8, 2019. 2023 ONLTB 42881 (CanLII) 26. On July 12, 2019, the L.’s A. notified the Tenant of the L.’s intention to sell the property, A. the Tenant responded by insisting that he had a one-year lease, did not consent to the sale, A. would not cooperate with any showings of the property. 27. After a series of emails, A. attempts by both parties to negotiate the termination of the tenancy, the property was listed F. sale, A. the L.’s A. began showing the property in August, 2019. 28. The basis of the Tenant’s allegations of substantial interference A. harassment is that the parties had agreed to a one-year lease F. the period from July 15, 2019 to June 14, 2020, A. that the L. had attempted to sell the house during a period when the Tenant had a right to occupy the property. 29. It is not disputed that no new lease was signed. The Tenant argues that there was an agreement in place, while the L. argues that the Tenant’s original lease remained in place on a month-to-month basis. I therefore turned my mind to whether there was a meeting of the minds, or a verbal agreement with respect to the terms of a new lease F. the period between July 15, 2019 A. July 14, 2020. 30. Based on the evidence before me, including the testimony of both parties A. multiple emails dated prior to July 15, 2019 detailing the dispute about the lease renewal between the parties, I cannot find that there was a meeting of the minds with respect a new lease. With the exception of a guideline rent increase, there were no changes to the Tenant’s 2018 lease. Therefore, I find, on a balance of probabilities, that no new lease was in effect A. the tenancy continued on a month-to-month basis after July 14, 2019. 31. With respect to the listing of the house, the L. is not required to seek or attain the consent of the Tenant to list the property. A., in keeping with the principle that covenants run with the land, if the property is sold, the tenancy continues, unless the Purchaser requires the use of the unit F. personal use, A. the provisions of Section 49 of the Act are met. Section 49 reveals: 49 (1) A L. of a residential complex that contains no more than three residential units who has entered into an agreement of purchase A. sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit F. the purpose of residential occupation by, (a) the purchaser; (b) the purchaser’s spouse; O. Page 6 of 10  File Number: LTB-T-073742-22 CET-94007- 20 (c) a child or parent of the purchaser or the purchaser’s spouse; or (d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (1); 2021, c. 4, Sched. 11, s. 31 (1). 2023 ONLTB 42881 (CanLII) A.… (3) The date F. termination specified in a notice given under subsection (1) or (2) shall be at least 60 days after the notice is given A. shall be the day a period of the tenancy ends or, where the tenancy is F. a fixed term, the end of the term. 2006, c. 17, s. 49 (3). 32. I found above that the tenancy was on a month-to-month basis as of July 15, 2019, A. therefore the Tenant was entitled to 60 days notice should a purchaser require the property F. personal use. While the L. entered an agreement of purchase A. sale in February 2020, the sale did not close, A. the L. did not serve an N12 Notice of Termination on the Tenant until February, 2021, pursuant to a subsequent agreement of purchase of sale, which closed on April 16, 2021. The Tenant did not lead evidence that there had been any discussions between the L. A. Tenant about a further lease renewal in F. the period between July 15, 2020 A. June 14, 2021. 33. As noted above, the Tenant remained in the unit until April 14, 2021. Therefore, I find that the Tenant has not proved that the L. A. the L.’s A. failed to honour the Tenant’s lease with respect to the listing A. sale of the unit. 34. F. the reasons above, I find, on a balance of probabilities that the L. A. the L.’s A. did not substantially interfere with the Tenant by failing to honour the tenancy agreement. I further find, on a balance of probabilities that the L. A. the L.’s A. did not harass the Tenant by failing to honour the tenancy agreement. Eviction Notices 35. The Tenant alleges that the L. served the Tenant with an excessive number of eviction notices. The Tenant testified that the L. served the Tenant with 4 N4 Notices of Termination between July 8, 2019 A. November 18, 2019, A. one N5 Notice of Termination on November 18, 2019. N5 Notice 36. The L. served the Tenant with an N5 Notice of Termination on November 18, 2019 alleging that the Tenant had damaged the interior of the garage door. The Tenant could void the notice by repairing the damage or paying the L. $2,000.00 O. Page 7 of 10  File Number: LTB-T-073742-22 CET-94007- 20 37. The Tenant did not dispute that he damaged the door or that he did not void the N5 notice within 7 days of the Notice being served. The Tenant testified that he had informed the L. that he would repair the damage. 38. It is not disputed that the Tenant completed the repair in March, 2020, prior to the 2023 ONLTB 42881 (CanLII) application being heard, A. that the L. sought the application filing fee at the hearing. 39. The Tenant alleges that the amount sought by the L. was excessive F. the repair needed, A. that as he had repaired it prior to the hearing, the L. should not have proceeded with the hearing F. the filing fee. 40. Landlords are entitled to enforce their legal rights through the service of notices of termination A. the filing of applications. In the present case, the Tenant testified that he damaged the door, A. did not repair it F. several months after the N5 notice was served. The L. incurred a cost F. filing the application, the Tenant had not paid the filing fee at the time of the hearing, A. the L. was entitled to seek reimbursement F. the filing fee. 41. Therefore, based on the evidence before me, I find, on a balance of probabilities, that the L. A. the L.’s A. did not substantially interfere with the Tenant with respect to the serving of the notice or with respect to the hearing process. I further find that the L. A. the L.’s A. did not harass the Tenant with respect to the N5 Notice or L2 application. N4 Notices 42. The Tenant testified that he was confused by the N4 notice he received on July 8, 2019, F. the rent owing on June 15, 2019, because he believed that the L. should have A. the last month’s rent to the June rent. 43. The L. served the Tenant with the 2nd N4 Notice of Termination with a termination date of August 19, 2019, claiming rent F. June, 2019 A. July, 2019. The Tenant alleges that he did not believe that the Tenant was in arrears because he had given the L. post-dated cheques F. July 2019 to November 2019. 44. The Tenant testified that in August, 2019, the Tenant checked his bank statements A. discovered that the cheques had not been cashed, at which point the Tenant began to withhold rent. The L. served the Tenant with 2 subsequent N4 notices. 45. The L. filed an L1 application which initially heard on November 8, 2019, A. was dismissed as abandoned. The L. filed a review of the O., the review was granted, A. the application was resolved by Board O. HOL-05817-19-RV on December 27, 2019. The Tenant paid the amount owing into the Board to void the O. on January 10, 2020. The Tenant’s request to review the December 27 O. was denied. O. Page 8 of 10  File Number: LTB-T-073742-22 CET-94007- 20 46. I do not find the Tenant’s testimony that he was confused by the July N4 Notice to be credible. As noted above, the L. A. the L.’s A. had repeatedly communicated with the Tenant by email that the rent was due F. June 15, 2019, A. that the last month’s rent was being held until the last month of the tenancy, prior to the 2023 ONLTB 42881 (CanLII) issuance of the July 8, 2019 N4 Notice. 47. As noted above, the Tenant’s own evidence reveals that the Tenant had requested that the L. destroy the post-dated cheques F. July to November, 2019, A. that he would replace the cheques with new cheques with the correct rent. The L. testified that she had destroyed the cheques at the Tenant’s request. In the L.’s A.’s June 27, 2019 email to the Tenant, the L.’s A. outlined the amount of rent charged F. each of the 12 post-dated cheques that the Tenant had agreed to provide, including the amounts requested F. the months of July – November, 2019. The Tenant did not replace the cheques, did not provide the L. with any further post-dated cheques, A. refused to pay the rent by e-transfer, when it was suggested by the L.. 48. The Tenant testified that he began to withhold rent in August, prior to receiving the September A. November N4 notices. 49. The L.’s A. testified that the L. served monthly N4 notices as they were not familiar with Board processes or the Act. While it is the L.’s responsibility to familiarize themselves with the Act that governs the business in which they are engaged, I am not satisfied that the service of 4 N4 notices rises to the level of substantial interference or harassment in the circumstances of this case. I say this because while the Tenant alleges he was confused by the notices, the N4 notices were consistent in that each subsequent notice changed only by reflecting the additional rent owing, the Tenant was aware that the L. was seeking payment F. the June, 2019 rent A. by the Tenant’s own admission, he knew that the L. had not cashed the incorrect cheques, A. began withholding rent in August, 2019. 50. F. the reasons above, I find, on a balance of probabilities that the L. A. the L.’s A. did not substantially interfere with the reasonable enjoyment of the rental unit or residential complex by the Tenant with respect to the 2019 N4 Notices. I further find that the L. A. the L.’s A. did not harass the Tenant with respect to the 2019 N4 Notices. 51. I considered the Tenant’s allegations individually A. found above that the L. A. the L.’s agents did not harass the Tenants with respect to the individual allegations of honouring the lease A. the service of notices. I also found above that the L. A. the L.’s A. did not enter the rental unit illegally between August, 2019 A. February 2020. Therefore, I find that the L. A. the L.’s A. did not harass, obstruct, coerce, threaten or interfere with the Tenant with respect to the individual allegations, or collectively with respect to the Tenant’s allegation of a pattern of harassment. 52. This O. contains all of the reasons in this matter A. no further reasons will issue. O. Page 9 of 10  File Number: LTB-T-073742-22 CET-94007- 20 Remedies 2023 ONLTB 42881 (CanLII) 1. The Tenant is entitled to a rent abatement of $500.00 F. the illegal entry on February 14, 2021. 2. The Tenant paid an application filing fee of $53.00, A. the Tenant is entitled to reimbursement of this cost. It is ordered that: 1. The total amount the L. A. the L.’s A. shall pay the Tenant is $553.00. This amount represents: • $500.00 F. a rent abatement, A. • $53.00 F. the cost of filing the application. 2. The L. A. the L.’s A. shall pay the Tenant the full amount owing by November 11, 2023. 3. If the L. A. the L.’s A. do not pay the Tenant the full amount owing by November 11, 2023, on November 12, 2023, the L. A. the L.’s A. will owe interest. This will be simple interest calculated from at 7.00% annually on the balance outstanding. 4. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. October 31, 2023, ____________________________ Date Issued Kathleen Wells 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. Page 10 of 10