LTB Order LTB-T-077044-22

2023 ONLTB 77094 (CanLII) O. under Subsection 30 Residential Tenancies Act, 2006 Citation: L. v W., 2023 ONLTB 77094 Date: 2023-11-23 File Number: LTB-T-077044- 22(SWT-39457-19) In the matter of: 538 Lilith Street Ottawa Ontario K2J6M1 Between: S. K. A. L. T. A. D. W. L. S. K. A. L. (the 'T.') A. F. an O. D. T. D. W. (the 'L.') failed to meet the L.’s maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards.(T6 application). The T. also A. F. an O. D. T. the L. substantially interfered with the T.’s reasonable enjoyment of the rental unit. (T2 application) These applications were heard together by videoconference on August 9, 2021. The L. A. the T. attended the hearing. Charindu L. represented the T. at the hearing. The L. A. the T.’s representative, Charindu L.< attended the October 7, 2022 hearing. The application was amended to remove the name of Charindu Keshala A. L. as a T.. Determinations: O. Page 1 of 6  File Number: LTB-T-077044-22(SWT-39457-19) 1. The allegations in the T2 A. the T6 applications are based on the same facts, A. the T. requests identical remedies in both applications. 2023 ONLTB 77094 (CanLII) 2. In their T6 application the T. alleges T. the L. took an excessive amount of time to repair damage due to a flood in the T.’s unit. 3. In their T2 application, the T. alleges T. the L. substantially interfered with the T.’s reasonable enjoyment of the rental unit in connection to the delay in repairs, A. the end of the tenancy. 4. The T. sought remedies F. out-of-pocket expenses, which will be considered under the T6 application, A. a rent abatement F. the increase in rent at the T.’s new unit, which will be considered under the T2 application. The Facts 5. The T. entered a rental agreement with the L. on January 1, 2019. The unit is a new row house A. the T. A. his family were the first occupants of the rental unit. 6. The rent was $1,690.00. 7. The Landord’s main point of contact with the T. was the T.’s son, Charindu L. (CL), who represented the T. at the hearing. The L. A. the T. submitted email A. text correspondence in support of their testimony. 8. It is not disputed T. there was a flood on the property on August 9, 2019, which caused extensive damage to the basement, main floor, A. basement of the property. The T. A. his family moved out of the unit while it was to be repaired. On August 16, 2019, the L. arranged F. the builder’s employees to conduct repairs to the property. It was discovered T. there was a more substantial problem than anticipated A. significant repairs were required to the plumbing A. all three floors of the rental unit. The L. informed the T. T. the repairs would take about 3 months. 9. CL contacted the L. because his mother was concerned T. the T.’s belongings were in the house, A. the builder’s contractors had used their towels to clean up after the flood, had not covered their belongings to protect them from dust, had left the windows open, A. had left a toilet seat on the bed in the master bedroom. The L. contacted the builder, A. gave CL contact information to follow up if required. 10. The L. testified T. he had encouraged the T. to find another place to live, as the house was not fit F. habitation A. the repairs would take some time. The L. made repeated offers of compensation if the T. would move out of the house in the O. Page 2 of 6  File Number: LTB-T-077044-22(SWT-39457-19) fall. CL replied T. the T. A. his family wanted to return to the house when the repairs were complete. 11. It is not disputed T. at some point in September, 2019, the L. offered the use of another of his properties F. the T. to use. CL testified T. the property in question 2023 ONLTB 77094 (CanLII) was too far from his brother’s school, A. as the family had recently arrived as refugees, they were concerned about moving his brother to another school, just as he had been becoming adjusted to life in their new home A. was making friends. CL had understood T. the L. had offered to allow the family to stay with him, while the L. testified T. it was a vacant house he had recently moved from. 12. On October 23, 2019, the L. informed CL T. his insurance company had engaged contractors to conduct the major repairs, A. T. all of the T. A. his family’s belongings would have to be removed from the house F. the repairs. The L. followed up with CL on November 18, 2019, informing CL T. the repairs would begin on November 27, 2019. The T. did not remove their belongings at T. time. 13. On November 29, 2019, the L.’s legal counsel sent a letter to the T., informing him T. the T. was required to remove all of their belongings from the unit by December 6, 2019, A. requested T. the T. sign an N11 Agreement to End the Tenancy as of December 14, 2019. 14. The T. did not sign the N11 Agreement A. asked F. an extension to December 14, 2019 to remove their belongings. The L. agreed to the extension on the condition T. the T. agree to terminate the tenancy. The T. removed most of their belongings on December 14, 2019, but left some furniture A. landscaping equipment in the garage. The T. did not agree to end the tenancy. 15. The L. testified T. he had decided to terminate the tenancy because his relationship with the T. had deteriorated, because the T.’s had caused a delay in the start of the repairs by failing to remove their belongings by the November 27, 2019 start date, A. the T. A. CL were contacting him too frequently. The L. also noted T. the Tenants had removed their belongings from the unit, which the T. had done at the L.’s request. The L. did not apply to the Board F. an O. to terminate the tenancy, A. the T. had not agreed to end the tenancy. 16. The T. secured a new apartment F. the beginning of January, 2020, A. returned the key to the L. on January 12, 2020. The L. informed the T. on February 9, 2020 T. the repairs would be complete on February 21, 2020, A. asked the T. to collect the remaining items from the garage by February 23, 2020, A. returned the T.’s last month rent deposit at T. time. T6 application O. Page 3 of 6  File Number: LTB-T-077044-22(SWT-39457-19) Flood 17. In Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, the Court of Appeal held T. the LTB should take a contextual approach A. consider the entirety of the factual situation in D. whether there was a breach of the L.'s maintenance 2023 ONLTB 77094 (CanLII) obligations, including whether the L. responded to the maintenance issue reasonably in the circumstances. The court rejected the submission T. a L. is automatically in breach of its maintenance obligation as soon as an interruption in service occurs. 18. In the present case, based on the evidence before me, I find, on a balance of probabilities T. there was a maintenance A. repair problem in the rental unit. The L. was constrained in his ability to begin major repairs more quickly as a result of a requirement to deal with the builder A. insurance companies before the repair could begin, A. the T.’s contributed to the delay by failing to move their belongings out of the rental unit by November 27, 2019. Therefore, I am satisfied T. the L.’s actions with respect to the timeliness of the repair were reasonable under the circumstances. 19. The L. provided the T. with a 100% rent abatement, by not collecting any rent F. the period from August 9, 2019, until the T. gave vacant possession of the unit to the L.. Out-of-pocket expenses 20. The T. sought reimbursement F. out-of-pocket expenses they incurred while the unit was not fit F. habitation in the amount of $13,521.48, which costs they incurred in excess of a tenants’ insurance payout of $12,000.00 F. hotels between August 9, 2019 A. October 9, 2019. 21. The T. claims amounts F. airbnb’s A. a stay in a house after August 9 during the period during which the unit was uninhabitable. To award this would be double recovery. As noted above, the T. did not pay rent after August 9, 2019, A. therefore has already been awarded a remedy, F. not having use of the unit during the time T. the unit was uninhabitable. 22. The T. claimed $2,750.00 to replace items because of the actions of the L.’s contractors, including: linens which came in contact with the toilet seat, towels which were used to clean up after the flood, clothing, A. non-perishable food items which were stored in the basement bathroom. Although, I heard testimony T. the T.’s wife was particularly concerned about the potential contamination of the items, the T. did not provide sufficient detail as to why the items could not be cleaned or laundered, A. did not provide a detailed list of items or any receipts. Therefore, I have insufficient information to award the T. reimbursement F. the cost of these items. O. Page 4 of 6  File Number: LTB-T-077044-22(SWT-39457-19) 23. The T. also claimed $7,200.00 F. food $1,500.00 F. gas. The T. did not provide receipts to prove these costs, A. I do not have sufficient information to determine whether these were costs which were related to the maintenance issue, A. not costs T. would have been incurred in the normal course. 2023 ONLTB 77094 (CanLII) 24. Therefore, the T.’s T6 application must be dismissed. T2 application Repairs 25. I found above T. the L.’s actions with respect to the timing of the repairs were reasonable under the circumstances. Therefore, I cannot find T. the L. substantially interfered with the T. by causing an undue delay to the repairs. Termination of tenancy 26. As noted above, the L. did not seek a board O. to evict the T.. The T. had a valid lease A. was entitled to move back into the rental unit once the repairs were complete. The T. had notified the L. of their intention to stay in the rental unit. 27. However, the L. testified T. he intended to terminate the tenancy A. would not allow the T. to move back in, A. the L. had repeatedly requested T. the T. agree to a termination of the tenancy. CL testified T. the T. understood T. they would not be allowed to move back in, A. found another unit in the neighbourhood. 28. Therefore, based on the evidence before me, including the L.’s own testimony, I find, on a balance of probabilities, T. the L. substantially interfered with the T.’s reasonable enjoyment of the rental unit, A. T. the T. moved out because of the interference. 29. The T. testified T. he could only find a suitable, comparable unit at a rent of $2,200.00 F. a similar sized house in the area. The T. requested an abatement in the amount of one month’s rent differential of $510.00, which I have determined to be appropriate under the circumstances. 30. The T. incurred an application filing fee of $50.00 A. the T. is entitled to reimbursement of this cost. 31. The total amount owing to the T. is $560.00. O. Page 5 of 6  File Number: LTB-T-077044-22(SWT-39457-19) It is ordered T.: 1. The L. shall pay to the T. $560.00. 2. The L. shall pay the T. the full amount owing by December 3, 2023. 2023 ONLTB 77094 (CanLII) 3. If the L. does not pay the T. the full amount owing by December 3, 2023, the L. will owe interest. This will be simple interest calculated from December 4, 2023 at 7.00% annually on the balance outstanding. 4. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. November 23, 2023 ____________________________ Date Issued Kathleen Wells Member, L. A. T. 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 6 of 6