Notice of Entry (RTA)

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Wrona v. Toronto Community Housing Corporation, 2007 CanLII 3228 (ON SCDC)

[1] Mr. Wrona, the tenant, applied to the Ontario Rental Housing Tribunal for an abatement of his rent under s.35(1)(b) of the Tenant Protection Act (the “TPA”).

[2] Under s.32(1)(3) of the TPA as a condition to obtaining abatement, Mr. Wrona had to establish that the landlord’s agents had illegally entered his apartment. The Tribunal found as a fact that on the day in question, May 11, 2006, Mr. Wrona had permitted the agents to enter his apartment to carry out an annual inspection of smoke detector equipment. Accordingly, the Tribunal found there was no illegal entry.

[3] In order to obtain entry, the landlord was required to give Mr. Wrona written notice pursuant to s.21 of the TPA. Section 21(2) of the TPA states in part that the notice “… shall specify the reason for entry, the date of entry and a time of entry between the hours of 8:00 a.m. and 8:00 p.m.” In our opinion, a common sense reading of the language of ss.2 requires the notice to specify a time of entry within the twelve hour window, not as was done here, a nine hour period within the window during which an entry would be made.

[4] In that regard, we agree with the finding of Member Graham of the Tribunal in his Decision in file #TNT-04362, a proceeding between these same parties that:

“I do not accept that a landlord is required to specify the exact hour and minute of a required entry into a rental unit and although the hours of entry set out in this notice are clearly between 8:00 a.m. and 8:00 p.m., I do not find that a six-hour entry period complies with the requirement that the Landlord specify a time of entry between 8:00 a.m. and 8:00 p.m.”

[5] We therefore find that the notice delivered by the Landlord was deficient.

[6] The notice provisions are drawn to protect the rights of the tenant and pursuant to s.2(1) of the TPA, they cannot be waived. In our opinion, by failing to consider the legitimacy of the notice, the Tribunal erred in law and further erred in law in holding that in the face of the defect in the notice, a consent to entry could operate as a waiver of the requirement for notice.

[7] Accordingly, the decision of the Tribunal is set aside.

[8] Pursuant to the power given to us by s.196 of the TPA, we therefore order as follows:

(i) an abatement of rent in favour of the tenant in the sum of $1,000.00;

(ii) costs of the hearing today;

(iii) costs of the hearing before the Tribunal.

CEL-74298-18-SA (Re), 2018 CanLII 88510 (ON LTB)

19. The Tenant’s Legal Representative argued that the Landlord’s notice of entry does not comply with the Act because of the extensive window of time given for the entry. He relied on Wrona v. Toronto Community Housing Corporation, 2007 CanLII 3228 (Wrona) wherein the Division Court held that:

“a common sense reading of the language of ss.2 sic [Section 21(2) of the TPA] requires the notice to specify a time of entry within the twelve hour window, not as was done here, a nine hour period within the window during which an entry would be made.”

20. In Wrona, the Landlord required entry into the rental unit to conduct an annual inspection, something that would take no more than five to ten minutes. This case is distinguishable from Wrona in that the Landlord required entry into the rental unit to repair damage in the rental unit. I am satisfied that a window of time or range of time for the completion of repairs would be reasonable in this circumstance given that it may take significant time to complete the repairs in the unit. I am satisfied that the Landlord’s notice of entry complied with the Act.

21. The Tenant’s Legal Representative also argued that the Tenant’s denial of access to the superintendent on March 12, 2018 did not amount to a substantial interference and that an eviction for this refusal would be substantial.

22. Based on the evidence and submissions before me, I am not satisfied that the Tenant’s failure to allow access to the Landlord on March 12, 2018 amounted to a substantial interference. I am satisfied that the Landlord provided notice of entry to the Tenant in accordance with the Act and therefore the Landlord had a lawful right to enter the unit on this day. However, simply interfering with the Landlord’s right of entry does not amount to a substantial interference.

23. Substantial is not defined in the Act, but the general understanding is that it means “considerable” or “significant.” The Landlord did not provide any evidence of the impact of this refusal of entry by the Tenant other than having to reschedule the appointment with their contractor. I am not satisfied that simply rescheduling a date and time amounts to a significant (substantial) interference.

24. According to the Tenant, at the time of this entry, she believed she was having withdrawal symptoms. The superintendent testified that prior to opening the door to the Tenant’s unit, he called his office to confirm whether or not the Tenant had cancelled the notice of entry. This would suggest had the Tenant cancelled in advance the Landlord would have not attempted entry and simply rescheduled.

25. The Landlord has an obligation to maintain the rental unit under the Act and in this case was ordered to complete the repairs. The Landlord has since been given access to the rental unit and the repairs are being completed. Therefore, I am not satisfied that the refusal of entry on March 12, 2018 amounted to a substantial interference.

26. Consequently, the Tenant’s motion is granted and the L4 application is dismissed.