LTB Order LTB-T-076454-22

O. under Sections 30 & 135 Residential Tenancies Act, 2006 Citation: P. v Matthews, 2023 ONLTB 76586 2023 ONLTB 76586 (CanLII) Date: 2023-11-28 File Number: LTB-T-076454-22 In the matter of: 1274 Minnewaska Trail Mississauga Ontario L5G3S5 Between: E. P. T. P. P. A. M. M. L. A. M. E. P. A. P. P. (the 'T.') A. F. an O. determining that M. M. A. A. M. (the 'L.') failed to meet the L.’ maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards. The T. also A. F. an O. determining that the L. collected or retained money illegally. This application was heard by telephone A. videoconference on December 15, 2020, May 13, 2021, February 1, 2022, April 1, 2022, A. July 21, 2023. The L. A. the Tenant, E. P. attended all the hearings. The T.’ legal representative, G. Deokaran, attended the hearing on May 13 2021. The T.’ translator, H. Chabaros, assisted with translation on December 15, 2020, A. on May 13, 2021. There was one other witness F. the T., besides the Tenant E. P., the T.’ friend N. Zych. The T. named the Landlord, M. M.’s parents, M. Matthews A. T. Matthews, as L. in their application. M. M.’s parents acted as liaisons between the L. A. the T., A. helped managed the property, while the L. were out of the country. I determined that M. Matthews A. T. Matthews were not properly named as L., A. the application was amended to exclude them as named L.. Determinations: 1. The rental unit is a house with a basement. The house has three bedrooms, kitchen, living A. dining rooms on the main floor. The basement has an extra bedroom, office/rec room, A. a laundry/utility room. The monthly rent was $3,100.00. The tenancy began in May, O. Page 1 of 11  File Number: LTB-T-076454-22 2019. The T. vacated the rental unit, A. they returned the keys to the L. on March 11, 2020. The first-year term of the tenancy ended on April 30, 2020. 2. The hearings F. this application were many, A. they took place over a long period of time. 2023 ONLTB 76586 (CanLII) 3. On May 13, 2021, I determined that the amendments the T. were seeking to add to their application were not valid amendments. I found that the T.’ alleged amendments were, in effect, a wholly new T2 application to add to the T1 A. T6 application already filed. I found that this was not an amendment, but rather an additional application. I also determined that the allegations in the new T2 application, filed over a year after the original application, were duplications of those filed in the T6 application, A. they were therefore, already covered by the T6 application. Consequently, I did not hear the allegations in the T.’ additional T2 application. T6 Application: 4. The T6 application alleged a number of maintenance issues, including: leaking water in the basement, an ongoing mould problem due to the basement not being waterproof, leaking ceiling in the main bathroom, A. electrical problems. Leaking Water in the Basement A. Basement Mould: 5. The T.’ application is primarily concerned with mould A. standing water in the basement of the rental unit. It alleges that, even though the L. hired professionals to carry out mould remediation, it was not effective, A. it never resolved the problem. The T. do not believe that the L. sufficiently investigated their ongoing complaints about mould, A. they did not act to resolve them. The T. also believe that the L. delayed in attending to serious leaks A. electrical problems in the house. The T. allege that, as a result of the L.’ failure to effectively maintain the rental unit, A. because of the ongoing problems, the T. were justified in ending their tenancy early with insufficient notice, A. they claim they should not be responsible F. any rent after the date they returned the keys to the L., March 11, 2020. 6. The Tenant, E. P. (EP) gave evidence on behalf of the T.. 7. The Landlord, M. M. (MM) gave evidence on behalf of the L.. 8. The T. chose not to move into the rental unit at the beginning of May, 2019, although they were given access to the rental unit. The T. were still living in their previous home F. most of the month of May 2019, although they had signed a lease to commence the tenancy at the beginning of May, 2019. The T. paid first A. last month’s rent upon moving in. The T. allege that they did not move in immediately because of the state of the basement when they first sought to move in on May 5, 2019. They said that as soon as they entered the rental unit in May 2019, they noticed the standing water A. mould in the basement, A. they informed the L.. O. Page 2 of 11  File Number: LTB-T-076454-22 9. There are a number of undisputed facts. The L. live abroad, A. it was their parents who came to inspect most of the issues, A. it was they who oversaw any work done at the property. The L. were abroad throughout the T.’ tenancy, except F. a short period in the summer of 2019, A. all correspondence between the parties was 2023 ONLTB 76586 (CanLII) carried out via email. The L. sent their parents to inspect almost immediately after learning from the T. by email, in May 2019, about the state of the basement. The L. did not delay in hiring a company to carry out basement waterproofing, A. mould remediation, A. all the work commenced in May 2019. The work was carried out in two parts. The first part was remediating the mould in the basement, F. which the L. were provided a certificate of completion by the end of May 2019. The second part was waterproofing the outside of the house. All the waterproofing A. mould work, inside A. outside the rental unit, took almost three months to complete. The construction work finished July 25, 2019, A. the T. allege that the construction workers were constantly around creating mess A. noise until that date. 10. The T.’ evidence, supported by the documentary evidence, is that they were not satisfied with the basement work, A. they noticed that there was still mould in the basement even after the work was completed in July 2019, A. they repeatedly asked the L. to carry out a mould test, which the L. refused to do. The T.’ documentary evidence demonstrates that, as of the beginning of June 2019, the T. informed the L. that the inside basement work was not complete as alleged, A. that the workers had neglected areas of the basement. The T. had already asked the L. to carry out a mould test in the basement by that date. The L. did not agree to a mould test, A. they informed the T. that any white fluffy stuff they saw on the walls was “efflorescence” A. not mould. 11. The T.’ email correspondence demonstrates that the T. asked F. a rent abatement because of the issues as early as May 2019, but the L. repeatedly refused. There is an email from the L., dated June 4, 2019, in which the L. tell the T. that it is “not standard” to carry out a mould test, A. “it is a highly expensive procedure.” There is documentary evidence that the L. responded to the T.’ concerns, saying that once the work was complete at the end of May 2019, the T. were able to use the basement, so they were not entitled to a rent abatement. 12. The T.’ documentary evidence shows that they asked the L. to test F. mould on a few occasions, A. they also asked F. a rent abatement on a few occasions, A. the L. refused both requests. 13. EP said that the T. became fed up with the situation, there were a number of other issues with the rental unit, A. the T. sought to break the lease as of September 29, 2019. The L. replied by email that if the T. broke the lease, it was the T.’ responsibility to find new T. to whom they could assign the lease. The L. also said that if the T. did not find new T. to move in A. they, the L., became responsible F. re-marketing the property, there would have to be an agreement between the parties about costs. As a result of this email exchange, A. worried about the cost of moving out, the T. chose to stay in the rental unit. O. Page 3 of 11  File Number: LTB-T-076454-22 14. The T. submitted into evidence further photographs of basement walls taken in January 2020, A. in February 2020, where there is a substance that appears to be black mould, A. fluffy white blooms in various areas of the walls. There is also water visible on the floors. The T. allege that there was water constantly in the basement until they left in March 2020. 2023 ONLTB 76586 (CanLII) 15. EP said that despite her emails to the L. informing them of leaking in the basement, A. leaking in other areas of the house, as well as mould, there was no one who came to inspect from July 2019 until January 2020. She said that in January 2020, someone came to patch up the roof, but they never came inside the house. 16. EP said that when the T. finally informed the L. on February 25, 2020, that they could take it no longer, A. they were going to move out, the L. wrote to them in reply that they were responsible F. the rent until the end of the one-year term, i.e. until April 30, 2020. The L. also replied that they would return the last month’s rent deposit only if they were successful in finding a new tenant by April 1, 2020. In the L.’ email of February 26, 2020, the L. wrote “One thing I will ask your help on Ella, is that can you please let me know when/where/who informed you that the basement was a fully waterproof/dry space?” 17. The T. seek a rent abatement of 35% F. the months they were living in the rental unit because they were unable to use over a third of the space in the house due to the leaking A. water in the basement. They also seek a further $361.00 per month abatement F. the failure to provide a safe, waterproof basement. 18. The L.’ evidence was that they acted immediately to remediate the mould in the basement, A. they received a certificate of completion of the work on May 30, 2019. They said that despite the certificate of completion, they asked the mould company to return to do further work on June 10, 2019, after the T. informed them the workers missed areas of the basement. MM said that her father came to oversee the extra work. 19. MM submitted into evidence her invoice F. the mould remediation work, which consisted of the inside work in the basement, in the amount of $2,000.00 plus tax. 20. MM said that she asked the T. whether they had lingering concerns about mould after June 10, 2019, A. she received a reply from the T. that they still saw mould in the cold room. MM said that since she had assurances from an expert that the mould problem was resolved, she informed the T. to keep the door to the cold room closed because that room was not insulated from the outside. MM also said that she was assured that any fuzzy white substance the T. saw was efflorescence, A. not mould. She said that all the drywalling A. removal of dust was complete by the end of June 2019. However, MM said that the L. visited the rental unit on July 17, 2019, A. they agreed the basement was still dusty A. dirty, so they undertook to clean it up F. them. She said that the cleaner F. that work came on July 26, 2019, at a cost of $120.00 to the L.. O. Page 4 of 11  File Number: LTB-T-076454-22 21. It is undisputed that there was outside waterproofing work that continued until July 25, 2019. MM submitted into evidence her invoice F. the outside waterproofing work, in the amount of $5,250.00 plus tax. Reasons A. Analysis: 2023 ONLTB 76586 (CanLII) 22. In accordance with section 20 of the Residential Tenancies Act 2006 (the Act), a landlord is responsible F. providing A. maintaining a residential complex, including the rental units in it, in a good state of repair A. fit F. habitation A. F. complying with health, safety, housing A. maintenance standards. 23. As set out in the Landlord A. Tenant Board’s Interpretation Guideline 5, it is established law that it is not sufficient to establish that there was a maintenance issue. The Board must also consider whether the Landlord’s response, once informed of the issue, was timely, appropriate A. effective to remedy the problem. When these three tests are met, the Landlord cannot be said to have been in breach of their section 20 obligation to maintain. 24. With respect to the basement mould issue, the L., or their agents, acted quickly to inspect, A. then quickly to hire contractors to remediate the mould issue in the basement. The contractors they hired were purported experts in mould remediation or waterproofing. Therefore, the response was timely, A., on the surface, appropriate. 25. However, I find that the essential issue before me is whether the contractors hired by the L. were effective. 26. The T. complained about problems with the work done in the basement a few days after the L. had been informed that the work was complete at the end of May 2019. They told the L. that areas had been left out. It is undisputed that the L. sent the contractors back in on June 10, 2019, to fix up the errors A. do a more thorough job. 27. The T. complained again, in particular, about the cold room. The T. said there was still mould, even after the workers came in June 2019, A. there was white fluffy stuff, moisture, A. a bad smell. It is undisputed that the L. responded by telling the T. that the L. had been assured by the mould expert that none of the white fluffy substance the T. were seeing in the basement was mould, merely efflorescence, A. if they were worried about the cold room, they should just shut the door. 28. However, the photos that the T. submitted from January A. February 2020, show a rather alarming recurrence of black mould on the walls in the basement, A. the white fluffy stuff does not look like mere “efflorescence”, but fungus. Therefore, I find, on a balance of probabilities, that the work carried out in May A. June 2019, was not effective. Therefore, I must determine whether the L. are responsible F. a breach of their maintenance obligations because the work was not effective. 29. It is undisputed, A. I find that it was clear to all parties that the work was not complete at the end of May 2019, despite the certificate of completion. The L. were aware of it, O. Page 5 of 11  File Number: LTB-T-076454-22 because of the T.’ complaints, A. because they ensured that the same contractor return to the basement on June 10, 2019, to do a more thorough job A. fix up areas that had been missed. I find that the photos submitted by the T. also corroborate that the work done in the basement was not very thorough. The photos show that only a small area at the bottom of the drywall was replaced, rather than all the potentially affected 2023 ONLTB 76586 (CanLII) drywall. 30. Although I am wary of obligating the L. to become mould experts, they had enough clues about the haphazard job done by the mould contractor as a result of the T.’ complaints a few days after alleged completion, the photos, the T.’ further complaints about the cold room, A. even the cheap price F. the basement work. The L. were not living in the same country, A. they had to do everything at a distance, but that does not excuse them from their maintenance obligations. At the very least, they could have agreed to the T.’ repeated requests to have mould samples taken, or they could have sent in a different mould expert to assess the likelihood of quickly recurring mould. In any case, I find that it was not sufficient to do nothing in response to the T.’ dissatisfaction. Instead, the L. refused to investigate, they took the word of the questionable contractor, A. then told the T. to just close the door to the cold room. It does not require a mould expert to know that you cannot just close the door on mould, especially in the constantly wet environment that existed in that basement. I find that the L.’ comment in their email of February 2020, “can you please let me know when/where/who informed you that the basement was a fully waterproof/dry space?” proves, on a balance of probabilities, that they were well aware of the constantly wet environment in the basement, A. therefore aware of the need to do a very thorough A. effective, A. yes, more expensive, mould remediation to stop further problems. The outside work seems to have been very cheap as well F. a job that took two months to complete. 31. As a result of my determinations above, I find that the T. are entitled to an abatement F. the 12 months of the lease (see determinations below with respect to the T1 application). They lived with mould throughout the time of their tenancy. The T. believed that they were living in an environment hazardous to their health. I find that it was certainly detrimental to the T.’ health to use the basement space, A. there would otherwise have been a number of usable rooms in the basement. The T. believed that they were paying a substantial rent in O. to have the use of those rooms. However, such a problem not only affects the basement. The constant dampness would have affected the atmosphere in the whole house, with air A. heat being circulated through vents. The T. had a son with asthma. Mould is particularly detrimental to respiratory issues. EP said that they were not comfortable in the house, A. they have documentary evidence that they wanted to leave as of September 2019, in particular because of the mould A. damp. The only reason that they did not leave at that time, was because the L. threatened them that they would be responsible F. the full 12 months of rent. 32. The T. requested a 35% abatement F. the mould, in addition to over $300.00 abatement F. an unsafe basement that is not waterproof. The Tenant’s request, is, in essence, a double remedy F. the same issue. However, the problem of mould was serious, A. consequently, I find that it is reasonable to grant the T.’ a 30% rent abatement F. the L.’ breach of maintenance with respect to mould A. dampness O. Page 6 of 11  File Number: LTB-T-076454-22 F. the 12 month lease. My findings with respect to the last two months of the tenancy are contained in the determinations on the T1 application below. Leaking on main level: 2023 ONLTB 76586 (CanLII) 33. EP said that she informed the L. about a leaking ceiling in the main bathroom on July 13, 2019, A. she sent photos, which she submitted into evidence. The photos show buckling A. cracking in the ceiling near the light fixture. She said that the L. replied on July 30, 2019, informing the T. that there is some leaking during extreme rain storms, A. they should continue to observe. EP submitted into evidence an email to the L., dated September 29, 2019, when the T. repeat their concerns about the leaking ceiling, A. they write “Dripping water from the ceiling after the raining – in the bathroom upstairs, to this day not repaired (M. told us only, to keep in watch (sic) on it)…..” EP said that they received a similar response from the L. about this type of problem being common in Canadian homes. EP said that she sent another email at the end of October 2019, A. the T. received a similar response from the L.. EP said that the only action taken about this complaint was when the roofer came to patch up the roof in January 2020 (see above), A. the roofer did not enter the house, A. no one came to investigate the ceiling. She said that the L. never inspected the main bathroom, A. nothing was done by the L. about the ceiling until the T. left in March 2020. 34. The T. request an abatement of $300.00 per month F. the seven months they lived with the ceiling problem after having informed the L.. 35. MM said that the photo sent by the T. demonstrated only cracking in the ceiling, A. no dripping or leaking. She said that the photo looked like bubbling paint, A. she asked the T. to poke a hole in the ceiling to observe whether water poured out, but the T. never responded to that direction. 36. MM said that the L. did not repair the cracking paint, because they were waiting to hear from the T. about recurring leaking. She said that the photos from October 2019, showed the same cracking, but no leaking. MM admits that the T. complained about the leaking in January 2020, so that is why they sent in the roofer to do some patching before the L. undertook to rip up the bathroom ceiling. 37. MM said that when she received a complaint from the T. about further leaking in February 2020, there were no photos attached, so the L. did not believe it was an emergency. It is undisputed that in the email of February 2020, the T. said that their children reported further leaking to them. They did not report leaking that they themselves observed, nor did they attach photos. It is undisputed that the L. hired the roofer to do further repairs on March 9, 2020, after the T. had vacated the rental unit. Reasons A. Analysis: O. Page 7 of 11  File Number: LTB-T-076454-22 38. It is undisputed that the T. complained about a leaking ceiling in the main bathroom. However, it is also undisputed that the only documentary evidence of the leak was a photo that showed cracking paint in the ceiling. There is no evidence of wetness or leaking water in the main bathroom in the photos submitted by the T.. 2023 ONLTB 76586 (CanLII) 39. It is unfortunate that the L.’ only response to the multiple complaints of the T. about the leaking ceiling in the main bathroom was to tell them to poke a hole in the ceiling, which would cause damage that the L. could then blame on the T.. It is undisputed that the L. did not investigate this complaint further. 40. However, although the L. response to the T.’ complaints was inadequate, I find that the T. have failed to prove, on a balance of probabilities, that there was an existing maintenance issue with respect to a ceiling leak in the main bathroom. There was no evidence of damage caused by such a leak, or evidence of anything affected by the leak, A. the photo does not demonstrate any damp or wet in the ceiling. Electrical Issues: 41. EP said that she told the L. about an electrical problem in person when the L. were briefly in the rental unit on July 17, 2019. She said that she told them about the microwave, A. an electrical outlet that stopped working in June 2019. 42. EP said that the L. replaced the microwave right away. However, she said that the “blinking lights” never stopped blinking until the T. vacated the rental unit. EP said that she did not really pursue these problems with the L. because there were so many other issues. 43. I find that the T. have failed to prove, on a balance of probabilities, that there were electrical issues in the rental unit to which the L. failed to respond, except F. the microwave which was replaced immediately by the L.. The T. themselves admit that they did not pursue the L. about a problem related to blinking lights. Consequently, there is no evidence that the L. breached any maintenance obligation with respect to electrical issues in the house. Plumbing Issues: 44. EP said that she informed the L. that one of the two toilets did not work on September 18, 2019. EP said that the L. sent a plumber immediately, but the T. were told that it was a municipal issue. 45. EP said that the L. arranged F. the city to attend to the problem, A. the work was completed within 8 or 9 days. 46. I find that the T. have failed to prove, on a balance of probabilities, that the L. breached their maintenance obligation with respect to plumbing issues. The T.’ evidence is that the plumbing issues were related to the municipality, A. the L. ensured that the municipality fixed the problem within 8 days of the problem O. Page 8 of 11  File Number: LTB-T-076454-22 being reported. Therefore, I find that the L.’ response to the plumbing issue was timely, appropriate A. effective. Ducts: 2023 ONLTB 76586 (CanLII) 47. EP said that the air ducts in the rental unit were dirty, A. she asked the L. when they last cleaned the ducts. EP said that the L. told her they did not know when they were last cleaned. 48. EP said that she arranged to have the ducts cleaned at her own expense. 49. The T. did not provide sufficient evidence about what maintenance issue there was with respect to duct maintenance. I find that the T. have failed to prove, on a balance of probabilities, that there was a maintenance issue with respect to the ducts in the rental unit. T1 Application: 50. It is undisputed that the L. have already reimbursed the T. F. an unlawful security deposit collected at the beginning of the tenancy. 51. It is undisputed that the T. paid rent in full to April 30, 2020, the date the first-year term of the tenancy ended, with their last month’s rent deposit A. to April 2020. 52. The T. allege that they could no longer live in the rental unit, A. they were justified to leave abruptly, after only a few days’ notice, on March 11, 2020. Therefore, they request all their rent money back F. the period from March 11, 2020 to April 30, 2020, as well as the interest on the last month’s rent deposit. 53. It is undisputed that the T. sent an email to the L. on February 25, 2020, to inform them that they were going to vacate by the end of February 2020. The L. replied that the T. were responsible F. the rent until the end of April 2020, when the lease ended. It is undisputed that the T. did not return the keys until March 11, 2020. 54. Section 88 of the Residential Tenancies Act, 2006 (the ‘Act’), provides that if a tenant does not provide lawful notice, arrears of rent are owing F. the period that ends on the earliest termination date that could have been specified in the notice, had the notice been given in accordance with section 47. In this case, that would mean the T. were required to provide notice 60 days before April 30, 2020, F. termination on April 30, 2020, which was the earliest date they could lawfully end this tenancy. 55. Consequently, the T. were responsible F. rent to the end of April 2020, unless they are able to prove, on a balance of probabilities, that the rental unit was in such a state of disrepair, A. the L. were in such serious breach of their maintenance obligations, that the rental unit was not habitable, A. the T. had no real choice but to move out. O. Page 9 of 11  File Number: LTB-T-076454-22 56. I find that the T. failed to prove that the rental unit was unhabitable. The T. did not produce mould tests, nor did they submit into evidence medical documentation to demonstrate the severe effect of any mould present in the basement on their health. The T. did not produce any documentary evidence to support their reasons F. having to move out at that particular moment in March 2020 without providing sufficient notice. In 2023 ONLTB 76586 (CanLII) fact, they had suggested moving out in September 2019, six months earlier, but chose to stay. While I acknowledge that I have determined above that the L. breached their maintenance obligation with respect to their remediation of mould in the rental unit, it was largely my logical inference that the mould is detrimental to health, A. that the basement would not be usable, that justified my remedy F. the mould problem. The T. did not have any documentary evidence to prove exactly how bad the mould problem was, nor how it affected their health A. the health of their children on the upper floor of the rental unit. Therefore, I do not find that the T. proved, on a balance of probabilities, that they were justified in ending the tenancy early with insufficient notice. 57. Section 88 of the Act is limited by section 16 of the Act, that obligates the L. to take “reasonable steps to minimise the person’s losses.” 58. MM testified that the L. immediately listed the rental unit with Larose real estate as soon as the T. handed back the keys on March 11, 2020. She said that they were unable to secure new T. until June 1, 2020. 59. Consequently, I find that the L. have satisfied the requirement of section 16 of the Act to mitigate their loss. 60. The T. are eligible to receive the interest on their last month’s rent deposit pursuant to subsection 106(6) of the Act, which was 2.2% in 2020, or (2.2% of $3,100.00)=$68.20. Remedies: 61. I have found above that the T. are eligible to receive a 30% rent abatement F. the 12 months of their tenancy, or 30% of $3,100.00=$930.00 per month. The L. will be ordered to reimburse the T. $11,160.00 plus the $68.20 interest owed on the last month’s rent deposit. It is ordered that: 1. The L. shall pay the T. is $11,278.20. This amount represents:  $11,160.00 F. a rent abatement F. the period May 1, 2019, to April 30, 2020.  $68.20 interest owed on the last month’s rent deposit.  $50.00 F. the cost of filing the application. 5. The L. shall pay the T. the full amount owing by December 9, 2023. O. Page 10 of 11  File Number: LTB-T-076454-22 6. If the L. do not pay the T. the full amount owing by December 9, 2023, the L. will owe interest. This will be simple interest calculated from December 10, 2023 at 7.00% annually on the balance outstanding. 2023 ONLTB 76586 (CanLII) November 28, 2023 Date Issued Nancy Morris Member, Landlord 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 11 of 11