LTB Order LTB-T-073804-22

Order under Section 31 Residential Tenancies Act, 2006 Citation: He v C., 2023 ONLTB 33734 Date: 2023-05-23 2023 ONLTB 33734 (CanLII) F. Number: LTB-T-073804-22/ SWT-45223-20 In T. matter of: 15 CHEPSTOW GATE LONDON ON N6G3S6 Between: J. He T. A. M. C. L. Y. L. Y. F. H. B. M. to T. L. A. T. Board’s new case management system, T. Tribunals Ontario Portal. Y. new F. number is LTB-T-073804-22. J. He (T. 'T.') applied for an order determining that Y. L. A. M. C. (T. 'L.') substantially interfered with T. reasonable enjoyment of T. rental unit or residential complex by T. T. or by a member of T. T.'s household. This application was heard by videoconference on October 27, 2022. T. T. A. T. L. attended T. hearing. T. T. was represented by Sofia D’Amico A. Barbara Warner, A. called as a witness: Rongyou Jiang (‘Oliver’). Helen C. acted as T. T.’s interpreter. T. L. testified on their own behalf A. were represented by Aleksei Grachev. Min Xu acted as T. L.’ interpreter. Determinations: 1. This application is about a student who shared T. rental unit with three other students. They signed a tenancy agreement for a one-year fixed term commencing September 1, 2018. At T. end of T. school year in May of 2019, they scattered for T. summer. T. T. went home to China. When T. students returned in August to get ready for T. coming school term, T. T. discovered some of her possessions were missing. She seeks compensation for T. missing items. 2. T. issues between T. parties are almost entirely factual. T. T. alleges one or more of T. L. or one of their agents disposed of her possessions. T. L. deny knowing anything about T. T.’s possessions. They did not see them, touch them, or move them A. have no idea who might have done so. They argue T. T. Order Page 1 of 7  F. Number: LTB-T-073804-22/ SWT-45223-20 H. not even proven T. bags of her possessions even exist, A. if they did exist, they say T. T. H. failed to prove T. value of their contents. 3. For T. reasons that follow I am satisfied that T. T.’s evidence establishes she left possessions in T. rental unit over T. summer of 2019, some of those possessions went 2023 ONLTB 33734 (CanLII) missing during T. course of T. tenancy, A. T. L. are liable to T. T. for that loss. I assess T. reasonable replacement cost of T. disposed of possessions to be $$7,613.74. PRELIMINARY ISSUES 4. T. application is amended to name both L. as respondent L.. They are mother A. daughter. T. second-named L. above is on title so she meets T. definition of “L.” under T. Act, but she played no role in T. tenancy. Her mother, T. first-named L. above, is not on title but performed all of T. functions of a L. A. rent was payable to her personally under T. terms of T. written tenancy agreement. So she also meets T. definition of “L.” under T. Act. 5. In these reasons, T. singular “L.” is a reference to T. second-named L. above as she is T. individual who dealt personally with T. tenants. FINDINGS OF FACT 6. In May of 2019 T. T. prepared to return home to vacation A. visit family in China. She had decided she did not want to live in T. rental unit after T. end of T. lease term, so she packed her belongings. She did so because it meant she did not have to do it at T. end of August, 2019 when she returned for T. new school term. She placed her belongings in T. living room because it would make it easier to move them. All of her roommates were also leaving for T. summer. 7. T. T. entered into evidence photographs of how she left her belongings packed up A. in T. living room. T. photographs show a few small cardboard boxes, a suitcase, two or three plastic bins with lids, a handful of small furnishings like a rack, A. nine “Rona” paper bags – T. kind used to dispose of yard waste. Eight of T. nine Rona bags appear to be quite full A. closed shut; but one is draped loosely over a standing item which T. T. says is a lamp. She used T. Rona bags because she did not have enough luggage, boxes, or plastic bins. 8. One of T. T.’s roommates, Oliver, testified. He says he left for T. summer a few days before T. T. did, but he saw T. Rona bags in T. living room before he left. He returned to T. rental unit on August 31, 2019 A. discovered all of T. Rona bags were gone from T. living room. He took a picture of T. living room that day that was entered into evidence. It shows T. T.’s suitcase, cardboard boxes, plastic bins, A. small furnishings still there, but T. Rona bags are gone. 9. As far as I am aware from T. evidence of T. parties, T. rental unit remained empty for T. summer. T. only people identified in evidence as entrants to T. rental unit between when T. tenants left in May A. T. end of T. summer were T. L., T. Order Page 2 of 7  F. Number: LTB-T-073804-22/ SWT-45223-20 L.’ real estate agent, A. prospective purchasers being shown T. rental unit by T. real estate agent. 10. T. L. says that she went to T. rental unit three times that summer: once in June, once in July, A. a final time in August. There is no dispute between T. parties that T. 2023 ONLTB 33734 (CanLII) Tenants did not receive written notice of entry for any of these visits. T. L. says T. first visit in June was because in April one of T. tenants complained of vermin. She went to clean. In July she says she also went to clean A. in August, it was for T. closing of T. sale. According to her, on none of these visits did she see T. Rona bags in T. living room. She says she did not know anything about them until August 31, 2019 when Oliver informed her they were missing. 11. T. L.’ real estate agent was not called to testify. T. L. says that T. agent would not have let prospective purchasers into T. rental unit unaccompanied. 12. T. other evidence with respect to who might have taken T. Rona bags is about what happened on August 31, 2019, when Oliver A. his girlfriend Brittany attended to remove their possessions from T. rental unit. 13. Oliver says that he A. Brittany went to T. unit to collect their own things on August 31, 2019. Oliver noticed T. Rona bags were gone A. texted T. T. to tell her. He says that T. L. was present at that time A. told him she threw T. bags away because she thought they were garbage. T. L. denies ever saying that to Oliver. 14. T. texts entered into evidence are in Mandarin. There is some dispute between T. parties with respect to T. translation into English of two of those texts. But there is no dispute with respect to T. following exchange between T. T. A. Oliver that occurred on August 31, 2019: T.: T. L. threw my stuff away? Oliver: T. luggage was thrown away. Were T. Rona bags full of clothes? T.: No. There were clothes, shoes, furniture, bags, etc. inside. Please asked him to find them for me. Oliver: OMG. She probably threw them away a long time ago. T.: Who tell you my luggage was all thrown away? Oliver: T. L.. 15. According to T. L.’s translation, another passage reads as follows: Oliver: Shit T.: Do you have her phone number? Order Page 3 of 7  F. Number: LTB-T-073804-22/ SWT-45223-20 Oliver: What can we do? T.: She ain’t in her right mind. T.: Almost all of my things are in T. Rona bags 2023 ONLTB 33734 (CanLII) T.: Only my stuff H. B. thrown out or what? Oliver: It was said they were thrown out. Oliver: Believed they were tree leaves. Oliver: Garbage or something. 16. T. underlined sections above are T. L.’s version of T. disputed messages. In T. T.’s version of T. translation, T. underlined words are translated to mean that “She [T. L.] said she regard those bags as garbage (leaves inside) A. then threw away.” 17. T. dispute about T. exact translation of T. texts is not particularly material. What is important is that T. texts were written as events were unfolding, corroborate T. evidence of Oliver, A. contradict T. evidence of T. L.. They support T. conclusion that T. L. knew about T. existence of T. Rona bags A. was involved in, or at least aware of, their disposal. This means T. L.’s statement to T. effect that she never saw T. Rona bags is not credible. Neither is her testimony that she had nothing to do with them going missing. In other words, T. L. is not credible, A. I accept Oliver’s testimony as true. T. L. disposed of T. Rona bags A. their contents. ANALYSIS 18. Pursuant to s. 22 of T. Act, a L. shall not at any time during a T.’s occupancy of a rental unit A. before T. day on which an order evicting T. T. is executed substantially interfere with T. reasonable enjoyment of T. rental unit or T. residential complex in which it is located for all usual purposes by a T. or members of his or her household. 19. I am satisfied that a L. who enters a rental unit during a tenancy without notice to a T. A. then disposes of some of T. T.’s personal possessions without consent H. substantially interfered with that T.’s reasonable enjoyment of T. rental unit for all usual purposes A. breached section 22 of T. Act. REMEDY 20. T. only remedy T. T. seeks is compensation for T. disposed of items. Her application claims $8,589.99, but at T. hearing T. amount claimed was reduced to $7,613.74. Order Page 4 of 7  F. Number: LTB-T-073804-22/ SWT-45223-20 21. T. parties consented to T. T.’s disclosure being accepted into T. record as evidence. It includes a detailed 21 page list of T. items T. T. says were in T. Rona bags that were disposed of. T. T. compiled T. list from memory A. downloaded pictures of T. items from T. internet A. used those pictures to create a chart with values assigned to T. items. 2023 ONLTB 33734 (CanLII) 22. T. chart is divided into sections based on where T. T. pulled prices from. T. first section is sub-titled “Unused items priced from Amazon or company website, Total: $4078.07”. T. second is headed “Used Items priced by EBAY, Total: $1056.67”. T. third is called “Items bought on international retail app Tao Bao priced on July 5, 2022, total: $2479”. 23. By my count there are about 172 items listed. 80 of T. items are body products, hygiene A. wellness items – things like cosmetics, perfumes, creams, night masks, A. cold remedies. There about 27 items of clothing listed but that includes 13 pairs of footwear, sneakers, sandals, A. slippers. T. rest of T. items include a few items of jewelry, 2 watches, electronic accessories like ear buds, linens, small kitchen items, canned food, a standing lamp A. a table lamp, bags, A. household cleaners. 24. T. L. argue that T. T. led insufficient evidence to establish that T. Rona bags ever existed, A. if they did exist, that T. items claimed were actually in T. Rona bags in T. first place. 25. I am satisfied that T. nine Rona bags did in fact exist A. were left in T. rental unit’s living room when T. T. left for T. summer. Both T. T. A. her witness attested to that fact A. pictures were entered into evidence of T. packed Rona bags in place. 26. With respect to what was in T. Rona bags themselves, T. T. led oral testimony A. entered T. list into evidence so it cannot be said there was no evidence supporting T. T.’s claims as to what was in T. bags. T. L.’s objections appear to be T. lack of corroboration of that evidence A. problems with T. T.’s credibility. 27. With respect to corroboration, there is in fact some in T. evidence. For example, I am satisfied that one Rona bag was covering T. T.’s floor lamp. T. lower half can be seen in T. photographs, A. although T. upper half is covered by T. Rona bag, what can be seen is consistent with T. floor lamp T. T. describes. 28. With respect to T. other items, another example would be T. appearance of T. closed bags from T. photographs. It is consistent with T. assertion they contain clothing, linens, A. other small items. T. bags are full but not fully rounded, meaning that their exterior appearance suggests T. bags enclose non-soft items as well as soft ones. T. size A. number of closed bags also seems to correspond reasonably to T. volume one would expect T. claimed items to occupy. 29. Another example of corroboration of T. T.’s evidence about what is missing is about an item that compensation is not claimed for. T. T. says T. missing items include T. soft drawers that belong in a small rolling cabinet. That cabinet can be seen in T. Order Page 5 of 7  F. Number: LTB-T-073804-22/ SWT-45223-20 pictures of T. living room taken by T. before she left, A. in T. photograph taken by Oliver on August 31, 2019. In both sets of photographs T. cabinet appears without T. drawers. T. T. says T. soft drawers are missing from T. cabinet because they are in one of T. bags. 2023 ONLTB 33734 (CanLII) 30. So it simply cannot be said that there is no corroboration of T. T.’s testimony about what was in T. missing Rona bags. 31. T. L. also argue that a negative inference should be drawn because T. T. failed to produce a copy of T. receipt for T. Canada Goose parka, failed to produce selfies or other photographs of T. T. with any of T. missing items, A. failed to adduce evidence from Oliver or anyone else that saw T. items claimed when they were in her possession. 32. I agree with T. L. that these forms of corroboration would have strengthened T. T.’s case, but that does not mean it is appropriate to draw a negative inference about her failure to produce them. 33. For example, to produce T. Canada Goose parka receipt would have required T. T.’s mother to locate or ask for a credit card bill dated at least 4 years prior to T. hearing. That is not an impossible task but is sufficiently challenging that most Board litigants cannot or will not tackle it in my experience. Further, although T. T. takes selfies A. says she gave some to her representatives to possibly use at T. hearing, it is entirely possible none of them clearly showed T. items in question. A. yes, Oliver could have B. asked to identify items on T. T.’s list but there is no ownership in a witness. T. L. could have asked as well, but presumably did not because of a reasonable concern that T. answers would not have assisted T. L.. 34. Given all of T. above A. T. circumstances here, I am not prepared to draw T. negative inference T. L. ask me to. 35. That leaves T. credibility issue. I agree with T. L. that T. T.’s testimony included a significant number of inconsistencies A. revisions. That is particularly true about T. sequence of events. In particular, T. T.’s testimony suffered from a failure to understand T. difference between hearsay A. personal experience A. T. importance of distinguishing between them when testifying. She would attribute to herself things other people said or did A. later told her about. For example, she said she spoke to T. L. to get permission to leave her belongings in T. living room but later stated it was actually Brittany who did that. This tendency continued even after I explained through her interpreter T. important difference between personal testimony A. hearsay. 36. But that tendency A. problem did not mar her evidence with respect to her personal belongings. 37. T. L. argue she failed to answer a question about whether T. EBAY prices were final sale price or negotiable. During cross-examination she was asked if it was true T. value of those items might be T. sale price or “best offer”. T. T. answered she Order Page 6 of 7  F. Number: LTB-T-073804-22/ SWT-45223-20 was not sure. No evidence was led at all by T. L. to suggest T. prices from T. EBAY research T. T. did were not reliable, A. I have no personal knowledge of whatever pricing structure T. L. meant by “best offer”. So I am not prepared to make a finding that T. T. was somehow evasive or untruthful about T. EBAY pricing she discovered. 2023 ONLTB 33734 (CanLII) 38. Finally, T. L. argue that except for T. Canada Goose parka T. T. did not give testimony about how old T. items claimed are. I took this to mean T. L. were arguing it was not appropriate to award T. T. T. replacement cost for items as if they new instead of used A. T. T.’s evidence was insufficient to assess any depreciated value. 39. It is true that T. T. did not testify as to T. age of T. rest of her items. She was not asked to. But she did testify that she looked for A. found pricing for second-hand items. That is why T. second part of her chart of claimed items is labelled “Used Items priced by EBAY”. I would also observe that T. largest category of items claimed are personal hygiene A. makeup items A. they are not something anyone can sell or buy used. 40. Given all of T. above I am satisfied that T. reasonable cost of replacing T. items disposed of by T. L. totals $7,613.74. T. L. shall be ordered to pay this amount to T. T.. 41. This order contains all of T. reasons for T. decision within it. No further reasons shall be issued. It is ordered that: 1. T. L. shall pay to T. T. $7,613.74 for T. reasonable costs that T. T. will incur in replacing property that was disposed of by T. L.. 2. T. L. shall pay T. T. T. full amount owing by June 3, 2023. 3. If T. L. do not pay T. T. T. full amount owing by June 3, 2023, they will owe interest. This will be simple interest calculated from June 4, 2023 at 6.00% annually on T. balance outstanding. May 23, 2023 Date Issued Ruth Carey Vice Chair, L. 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 7 of 7