Tenant Harassed by Other Tenants

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	772
Page Categories:	Interference of Reasonable Enjoyment (LTB)
Citation:	Tenant Harassed by Other Tenants, CLNP 772, <https://rvt.link/3g>, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2023/02/07

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Hassan v. Niagara Housing Authority, 2001 CarswellOnt 4890 SCDC

16. It is not that the other tenant's actions are imputed to the landlord, but, rather, the landlord's legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment.

17. As was stated by Judge Conant in Lush v. Dell Holdings Ltd. (September 3, 1986), Doc. M135029/86 (Ont. Dist. Ct.), 1986 District Court Toronto, at p. 4:

From time immemorial in the British judicial system the landlord must provide quiet enjoyment . . . the tenants have almost no method of recourse . . . There is really nothing . . . that the tenant . . . can do but get the landlord [to take action against the tenant].

Larizza v. The Royal Bank of Canada, 2017 ONSC 6140 (CanLII)

[76] The courts have not recognized a general duty of care owed by landlords to tenants or potential tenants to protect them from third party fraudulent schemes. However, the case law in Ontario has already recognized that banks do not owe a duty to protect their clients from the potential fraud of a third party because the relationship between the parties is governed by contract. In Baldwin v. Daubney, 2005 CanLII 46087 (ON SC), [2005] O.J. No. 5330 (Sup. Ct.) at para. 84, aff’d 2006 CanLII 32901 (ON CA), [2006] O.J. 3824 (C.A.), leave to appeal to SCC denied [2006] S.C.C.A. 475:

The fact that a loan transaction is made by way of an agreement between the parties strongly affects the two critical elements of duty of care that are identified in Anns: the nature of the relationship between the parties and the degree of proximity between them. Where the relationship between the parties is only contractual, the contract necessarily determines the reasonable expectations of the parties with regard to each other. Where the contract itself does not give the lender a duty to advise, there is no reason to consider that such a duty is part of the relationship unless there is a special relationship or circumstance which would reasonably give rise to such a duty. Similarly, where the relationship is only contractual, there is no reason to view the parties as having a proximity to the prospective harm that is different from the reasonable expectations created by the terms of their contract.

[77] Similar principles should apply here. This too is a relationship governed by contract. It is a relationship founded on an agreement between a landlord whose obligation under the lease is to provide an apartment in a good state of repair and a tenant whose obligation is to pay the rent and meet other obligations related to the use and maintenance of the apartment. There is no basis for a potential tenant entering into a lease to expect the landlord to protect him or her from the potential fraud of other people who will be occupants of the dwelling. The reality is that it would be exceptionally intrusive for landlords to have an obligation to inquire into the legitimacy and wisdom of the decision of two people to live together. This type of intervention bears no relation to the nature of the contractual relationship between the parties, and cannot give rise to an expectation that landlords would have such a duty.

TET-82381-17 (Re), 2017 CanLII 94010 (ON LTB)

1. The rental unit is the upper unit in a duplex. The Tenants are a young couple. They were expecting their first child when they rented the unit and moved in sometime in January, 2017.

2. This application is about how the Landlord responded to complaints that arose between the Tenants and the occupants of the lower unit. The Tenants complained about noise from below and overheard threats and conflicts over parking. The occupants below complained to the Landlord about the Tenants smoking and the smell of marijuana.

3. The application alleges that the Landlord failed to respond reasonably to these conflicts and as a result the Tenants had to move out prior to the end of their lease term. The Landlord’s agent takes the position that she did respond reasonably and mitigated the Tenants’ losses by agreeing to terminate the lease early.

49. This application is based on the rights set out in section 22 of the Residential Tenancies Act, 2006 (the 'Act') which says:

A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

50. It is well settled law that in the context of disputes between tenants this provision imposes a positive obligation on a landlord to take reasonable steps to address the complaints of one tenant concerning another. If a landlord does not take reasonable steps then the landlord may be held liable.

51. So the issue before the Board is whether or not the behaviour of the Landlord’s agent in dealing with the Tenants’ issues was reasonable. I am satisfied that in some respects it was not. I say this for the following three reasons.

52. First, the response of the Landlord’s agent to the complaints from the tenant below about the first-named Tenant’s use of medicinal marijuana was wholly inappropriate and arguably a breach of Ontario’s Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the ‘Code’).

53. The Tenants repeatedly told the Landlord’s agent that the first-named Tenant above uses marijuana as a medicine and was lawfully entitled to do so. The Tenants filed into evidence a letter from his physician confirming this. The treatment is prescribed for a generalised anxiety disorder.

54. Instead of recognizing that the Tenants were claiming the right to accommodation in housing because of disability, the Landlord’s agent simply repeated over and over again that the first-named Tenant should consume his medicine outside.

55. What she should have done is ask for confirmation of the disability and the first-named Tenant’s right to legally possess and consume medicinal marijuana. Once satisfied of that she had a legal obligation to discuss with the Tenants how the first-named Tenant’s disability related needs could be met given the circumstances. Telling him to consume his medicine in public is not an appropriate accommodation of his disability related needs.

71. Here, the Tenants’ evidence is that the series of breaches described above left them feeling threatened and fearful of their safety and that of their newborn. Under the circumstances, that fear was not unreasonable.

72. They were sufficiently fearful that they decided they had to move out. They did so even though they had created a nursery for their child, and had planned to remain in the unit for five years to save for a home of their own. Prior to moving out they were so nervous about being in the rental unit that they stayed temporarily elsewhere before actually moving. The decision to move out turned out to be particularly painful because they could not find suitable equivalent housing in their home community and lost many of their social supports when forced to move.

73. Given the evidence of impact on the Tenants, and my knowledge of previous like cases, I believe an appropriate abatement of the rent would be $2,500.00 for the period February 1, 2017 to July 31, 2017, which represents about 30% of the rent charged.

80. Those safety concerns are directly related to the Landlord’s failure to respond appropriately to the fighting and noise from below.

81. As a result, the Tenants are entitled to an order for rent differential.

82. The evidence of the Tenants with respect to their new unit is uncontested. Their new unit is roughly equivalent to the old. As a result, rent differential shall be ordered of $400.00 a month for twelve months for a total of $4,800.00.

83. The Tenants incurred costs of $50.00 for filing the application and are entitled to an order requiring the Landlord to reimburse them that cost.

84. Given all of the above an order shall issue requiring the Landlord to pay to the Tenants a total of $7,350.00.