Maintenance Abatements during Repairs (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2224
Page Categories:	Maintenance Abatements (LTB)
Citation:	Maintenance Abatements during Repairs (LTB), CLNP 2224, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/06/26

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O. Reg. 516/06: GENERAL, under Residential Tenancies Act, 2006, S.O. 2006, c. 17

8. (1) In this section,

“work” means maintenance, repairs or capital improvements carried out in a rental unit or a residential complex. O. Reg. 516/06, s. 8 (1).

(2) For the purposes of section 22, paragraph 3 of subsection 29 (1) and subsection 31 (1) of the Act, this section applies to the Board in making a determination,

(a) as to whether a landlord, superintendent or agent of a landlord, in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by a tenant or former tenant, or by a member of the household of a tenant or former tenant; and

(b) whether an abatement of rent is justified in the circumstances. O. Reg. 516/06, s. 8 (2).

(3) In making a determination described in subsection (2),

(a) the Board shall consider the effect of the carrying out of the work on the use of the rental unit or residential complex by the tenant or former tenant, and by members of the household of the tenant or former tenant; and

(b) the Board shall not determine that an interference was substantial unless the carrying out of the work constituted an interference that was unreasonable in the circumstances with the use and enjoyment of the rental unit or residential complex by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (3).

(4) If the Board finds that the landlord, superintendent or agent of the landlord, in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by a tenant or former tenant, or by a member of the household of a tenant or former tenant, the Board shall not order an abatement of rent if all of the following conditions are satisfied:

1. The landlord gave notice to the tenant or former tenant at least 60 days before the commencement of the work, or, in cases of emergency, as soon as was reasonable in the circumstances, concerning the work to be carried out.

2. The landlord gave notice to any prospective tenant of a rental unit at the first opportunity to do so before the landlord entered into a new tenancy agreement with that tenant.

3. The notice describes the nature of the work to be carried out, the expected impact on tenants and members of their households and the length of time the work is expected to take.

4. The notice was reasonably accurate and comprehensive in the circumstances at the time it was given.

5. If there was a significant change in the information provided under paragraph 3, the landlord provided to the tenant or former tenant an update to the notice in a timely manner.

6. The work,

i. is necessary to protect or restore the physical integrity of the residential complex or part of it,

ii. is necessary to comply with maintenance, health, safety or other housing related standards required by law,

iii. is necessary to maintain a plumbing, heating, mechanical, electrical, ventilation or air conditioning system,

iv. provides access for persons with disabilities,

v. promotes energy or water conservation, or

vi. maintains or improves the security of the residential complex.

7. If required under the Building Code Act, 1992, a permit was issued in respect of the work.

8. The work was carried out at reasonable times, or if a municipal noise control by-law was in effect, during the times permitted under the noise control by-law.

9. The duration of the work was reasonable in the circumstances.

10. The landlord took reasonable steps to minimize any interference resulting from noise associated with the work. O. Reg. 516/06, s. 8 (4).

(5) If the Board finds that the landlord, superintendent or agent of the landlord, in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by a tenant or former tenant, or by a member of the household of a tenant or former tenant, and an abatement of rent is not prohibited under subsection (4), the Board shall consider the following in determining whether it is appropriate to order an abatement of rent and the amount of the abatement:

1. The nature, duration and degree of interference with the reasonable enjoyment of the rental unit or residential complex that was caused by the carrying out of the work.

2. Whether the tenant or former tenant is responsible for any undue delay in the carrying out of the work.

3. The steps taken by the landlord during the work to minimize interference with the reasonable enjoyment of the rental unit or residential complex.

4. Whether the tenant or former tenant took advantage of any service provided by the landlord or arrangement made by the landlord that would minimize interference with the reasonable enjoyment of the rental unit or residential complex.

5. Whether a failure to carry out the work could, within a reasonable period of time, reasonably be expected to result in,

i. interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by a tenant or member of his or her household,

ii. a reduction or discontinuation of a service or facility,

iii. damage or additional damage to the rental unit, the residential complex or anything in the unit or complex,

iv. a risk to any person’s health or personal safety, or

v. a breach of section 20 or section 161 of the Act by the landlord. O. Reg. 516/06, s. 8 (5).

(6) Except as permitted under subsection (7), no abatement of rent shall exceed 25 per cent of the monthly rent for each month or part of a month during which there was substantial interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (6).

(7) The Board may order an abatement of rent that exceeds 25 per cent of the monthly rent for a rental unit if,

(a) the Board considers a larger abatement to be warranted in the circumstances because the interference with the reasonable enjoyment of the rental unit or residential complex far exceeded the level that would normally be expected, taking into consideration all of the relevant circumstances; and

(b) the Board is satisfied that,

(i) the work is not work described in paragraph 6 of subsection (4),

(ii) the work was carried out at unreasonable times or at a time that is not permitted under any applicable noise control by-law,

(iii) the work was carried out in a manner that contravened a condition or requirement of a building permit issued under the Building Code Act, 1992,

(iv) the work was carried out over a period of time far in excess of the amount of time that normally would be required, after taking into consideration any exceptional circumstances beyond the control of the landlord, including weather-related delays, delays in obtaining necessary government approvals or permits and delays caused by market shortages of suitable goods or services or qualified labour at reasonable costs, or

(v) the landlord refused to take reasonable steps during the work to minimize interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (7).

(8) The Board shall not order an abatement of rent that exceeds 100 per cent of the monthly rent for each month or part of a month during which the Board determines that the work substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (8).

TET-64613-15 (Re), 2016 CanLII 52836 (ON LTB)

24. The parties provided caselaw on this issue. The only case that I feel is directly relevant is First Ontario Realty Corp. v. Appelrouth 2012 ONSC 5030. The relevant portions read:

24 The Board went on in its reasons to find that Tower Hill, the corporate entity building the condominium, was not the landlord (at para. 64), but then stated that Tower Hill is "a non-arms length corporation over which the Landlord appears to have control." However, the Board member then concluded that the separate corporate existence was not determinative for two reasons: first, a landlord can be held liable for the actions of a third party; and second, s. 202 allows the Board to disregard the separate corporate existence of participants.

25 The Board's statement that a landlord can be held liable for the actions of a third party is a misstatement of the law. In order to provide a remedy under s. 29(2), the Act requires the Board to find that the landlord is itself responsible for causing interference with a tenant's reasonable enjoyment. For example, a landlord may be liable for failing to take reasonable steps to stop a tenant from making noise that disturbs other tenants (indeed, the Board correctly stated this proposition earlier at para. 51 of the Reasons). Notably, the landlord in such a situation is not "liable" for the actions of the noisy tenant. Rather, the landlord would be responsible because of its own failure to take reasonably necessary actions to ensure that all tenants could reasonably enjoy the rental premises (Hassan v. Niagara Housing Authority (2001), 48 R.P.R. (3d) 297 (Div. Ct.) at paras. 16-18).

26 In the present case, the Board never examined the extent to which the Landlord could and should have acted to control the construction activity carried on by Tower Hill. It is significant that the construction activity of which the tenants complained occurred on a separate property, owned by another corporation, and that other corporation was properly held not to be the landlord for purposes of the tenants' application to the Board. That owner had obtained necessary planning and building permission to proceed with its development, including development approvals obtained from the OMB.

27 The Landlord, First Ontario, itself did not carry out the construction activity, nor is there any evidence that it could have controlled the lawful construction activity of the other corporation. Thus, this is not a case analogous to one where a noisy tenant in the apartment building disturbs the other tenants, andthe landlord, through inaction, is held responsible for the interference with the reasonable enjoyment of the premises by the other tenants.

28 In my view, the Board came to an unreasonable conclusion by applying a theory of third party liability here, rather than making the necessary findings of fact as to what the Landlord reasonably could and should have done in the circumstances to reduce the disruption from construction on an adjoining property carried out by another corporation.

25. This case is different from the one at hand with respect to some of the significant facts. In this case the disturbing conduct occurred in the residential complex, not a separate property owned by another corporation. The disturbing conduct in question here was caused by an agent over whom the Landlord exercised control – namely the Contractor they hired and paid. In contrast, in First Ontario Realty Corp, the Court found that the disturbing conduct was not caused by the Landlord in large measure because there was no evidence that the landlord controlled the construction activity that was occurring at the other property. In sum, the contractor in this case is not a third party over whom the landlord has no control performing work on a separate property, but rather an agent of the landlord hired to fulfill the landlord’s obligation to perform required work in the residential complex.

26. The legal obligation to perform the work in accordance with the Act rests solely with the Landlord, not a third party or independent contractor. The landlord can either meet this obligation by doing the work itself or retaining an agent to perform the work. If the Landlord did the work itself, there is no doubt that it would be subject to s.8 and could be held liable if the interference caused by the work was unreasonable in the circumstances. To suggest that if the Landlord instead hires a contractor to perform the work s.8 is of no applicability because the Landlord cannot be held responsible for the substantial interference caused by their contractor would be an absurd result. As virtually all landlords hire contractors to perform significant maintenance and repair projects, this interpretation would render s. 8 virtually meaningless as the Tenants cannot pursue the contractor directly.

27. I further find to make the statement that the Contractor is not an agent of the Landlord because the Landlord does not exercise control over the Contractor is factually incorrect. The Landlord entered into a contract with the Contractor and pays the Contractor directly. The Landlord could have sued the contractor for improper work done or work not done in time.

28. Thus, the Contractor is an agent of the Landlord as defined in the Act. Therefore, the Landlord is deemed to be responsible for the fact that the duration of the work was not reasonable in the circumstances as per paragraph 9 of section 8(4) of O.Reg. 516/06. As I have found that the Landlord has not satisfied all of the condition in section 8(4), I must consider awarding a rent abatement in accordance with sections 8(5) to 8(8) of O.Reg. 516/06.

29. The Tenants also alleged that the work on the balconies created an excessive amount of dust. While the issue of dust control was discussed during the testimony at no time was evidence ever presented that would show any problems with the manner in which dust was dealt with. There were no charges laid by any governing agency that would have been involved if there was a danger to the Tenants or the workers and no real concern of unsafe working conditions expressed by the consulting engineer.

EAT-29838-13 (Re), 2013 CanLII 24461 (ON LTB)

1. The Landlord authorized Bell Mobility to install a cell phone tower at the top of the residential complex. The installation work was completed by sub-contractors hired by Bell Mobility to do this work.

2. The roof of the Tenants’ rental unit is where the cell phone tower was installed.

3. A metal bracket was attached to the wall at the top of the southwest corner of the residential complex. This wall is the exterior wall of the Tenants’ bedroom.

4. The preparation and installation work for the cell phone tower produced excess noise and vibrations in the rental unit. The vibrations also caused dust particles to fall from the ceiling of the Tenants’ rental unit onto their property and belongings.

5. The Landlord did not provide the Tenants with 60 days notice of the work to be completed, as required by paragraph 1 of subsection 8(4) of Ontario Regulation 516/06.

6. The work related to the installation of a cell phone tower does not meet the definition of work specified in paragraph 6 of subsection 8(4) of Ontario Regulation 516/06.

7. Therefore, I find that the Landlord or the Landlord's agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants or of a member of their household.

8. The Tenants are entitled to a rent abatement of 25%, pursuant to subsection 8(6) of Ontario Regulation 516/06. The Tenants are entitled to a rent abatement for the months of August 2012, January and February 2013 (in the amount of $778.32), as well as for September 6, 2012 ($8.53), for a total of $786.85.

CET-60001-16 (Re), 2016 CanLII 88085 (ON LTB)

11. The evidence before me supports a finding that the Tenant consented to repair of drywall in his unit, on or about July 16, 2016 which he expected to be completed in one day. Section 26 of the Act recognizes that the Tenant may consent to entry however given the extent of repairs performed by the Landlord, I do not find that the Tenant’s agreement to drywall repair amounts to consent to painting the unit, packing his belongings and replacing the carpet.

12. The Landlord by his own admission failed to comply with the requirements of section 27 of the Act. By failing to comply with section 27 and entering the unit for the two week period in July, packing the Tenant’s belongings and repainting his unit the Landlord substantially interfered with the reasonable enjoyment of the Tenant and illegally entered the unit.

13. In assessing the abatement, as required by section 8(4) of O. Reg. 516/06, I find an abatement is warranted because the Landlord failed to give the Tenant notice regarding the work and the nature of the work including the expected impact on the Tenant.

14. The Tenant is awarded a 75% abatement for the period from July 18th to August 1st ($277.43) because the degree of interference to the Tenant was such that his health was affected, his personal belongings including personal clothing items were packed without his consent and his ability to be in the unit was restricted due to his sensitivity to the paint fumes. The Landlord failed to take any steps to minimize interference with reasonable enjoyment and failed to establish that the repainting was work required as contemplated by section 8(6) of O. Reg. 516/06.