Wilful Damage (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-28
CLNP Page ID:	1933
Page Categories:	[Interference of Reasonable Enjoyment (LTB)], [Damage to Rental Unit (RTA)], [Section 34 (RTA)]
Citation:	Wilful Damage (RTA), CLNP 1933, <https://rvt.link/45>, retrieved on 2024-04-28
Editor:	Sharvey
Last Updated:	2023/02/15

Residential Tenancies Act, 2006, S.O. 2006, c. 17

34 The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant. 2006, c. 17, s. 34.

SWL-01016-17-RV (Re), 2017 CanLII 60757 (ON LTB)

4. For the reasons set out below, I find the Tenant has wilfully damaged the rental unit, by partially removing the bathroom sink from the wall, continually tampering with and destroying the taps in the bath, painting the floor and walls of the rental unit, allowing the dogs to urinate and defecate on the living room floor, tampering with the baseboard heater, twisting the bathroom vent fan and putting a screwdriver into the door lock and destroying the locking mechanism.

5. Given the state of the rental unit as of June 9, 2017 when the last pictures were taken, it is apparent that the damage is progressing. The Tenant alleges that someone keeps breaking into her rental unit and that this individual is responsible for the damage. However there is no evidence before me of a third party breaking into the rental unit and causing damage. Therefore on a balance of probabilities, given the pictures and invoices introduced by the Landlord, I find the Tenant’s conduct has resulted in wilful damage to the rental unit. I find further that the Tenant’s conduct has substantially interfered with the Landlord or other tenants’ reasonable enjoyment of the rental complex. The Tenant did not dispute that she yells in the rental unit .This conduct is disturbing to her neighbours, so much so that other long term tenants are threatening to vacate. Therefore, I find that the yelling of the Tenant rises to the level of substantial interference with reasonable enjoyment of the rental unit by other tenants.

Dennis v Pavao, 2021 CanLII 149720 (ON LTB)

11. In this case, the Board may only terminate the tenancy and evict the Tenant based on a finding that the Tenant wilfully damaged the rental unit.

12. Negligent damage occurs where a tenant takes some action which the tenant should reasonably have concluded would result in damage or alternately, in which a tenant fails to take a required action which the tenant should reasonably have known would result in damage. By contrast, wilful damage results from action taken by the tenant with the intent to do damage.

TEL-29153-12 (Re), 2012 CanLII 97881 (ON LTB)

5. The Landlord failed to provide any evidence that convinces me the Tenant wilfully damaged the rental unit. The photographs provided do not prove the Tenant caused the damage. There are no photographs that show what the unit looked like before the Tenant moved in. The fact the Plumber submitted a report that states the Tenant caused the blockage does not constitute wilful damage. There may have been some negligence on the part of the Tenant or her family members. There is no proof that the Tenant wilfully damaged any part of the rental unit or the residential complex. The yard was damaged by the pool of the previous tenant. The fact this Tenant is willing to repair the damage in the spring shows me good faith by the Tenant. Based on the fact the Landlord had no compelling evidence to convince me the Tenant wilfully damaged the unit I will be dismissing the Landlord’s L2 application.

SWT-93340-16 (Re), 2016 CanLII 88157 (ON LTB)

[14] The Tenants are admitted heavy smokers and they have damaged the rental unit by smoking inside and depositing yellow nicotine stains on the ceiling, walls, kitchen cabinets and on the white vinyl frames of new windows installed during the tenancy. The Tenants admitted they are responsible for cleaning the stains, but at the same time, the Tenants wanted the Landlords to incur the costs of re-painting the unit to address the staining the Tenants caused. The Landlords have no obligation to do so, because section 34 of the Act makes the Tenants responsible for repairing undue damage they caused.

[15] The Tenants also damaged the rental unit by having rooms painted by a friend in 2008. One coat of inferior quality paint was sloppily applied, without the Landlords’ consent. The Tenant, RN, acknowledged the 2008 paint job was inconsistent with the Landlords’ quality standards, and needed to be corrected. The Landlords had no obligation to pay for the correction because section 34 of the Act makes the Tenants responsible for repairing undue damage they caused.

TSL-04614-10 (Re), 2010 CanLII 48848 (ON LTB)

8. Subsection 20(1) of the Act states: “A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.” This means that when the window was broken, the Landlord had an obligation to fix it because at that point in time the Landlord was in breach of the Act. Section 34 of the Act says that “The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.” I believe that these two sections when read together mean that where a landlord believes a tenant or one of her guests is responsible for disrepair, then the landlord should repair the damage and turn to the tenant to pay for it. This is consistent with section 62 of the Act which permits a landlord to serve a notice of termination on the tenant in such a circumstance. Such a notice gives the tenant seven days to do the repairs to the landlord’s satisfaction or pay for the cost of the landlord doing it. In other words, I am of the view that the Act was intended to avoid the situation that occurred here: namely, that acknowledged disrepair was left for a lengthy period of time.

TST-52022-14 (Re), 2014 CanLII 71137 (ON LTB)

20. Given the wording of s. 20(1), every time a rental unit is in a state of disrepair or not in compliance with health or fire regulations or property standards by-laws the landlord is in breach of the Act. This is why disputes before the Board are often not really about whether disrepair exists or not but centre on the issue of what remedy, if any, a tenant is entitled to.

21. With respect to remedy a number of principles emerge from the case law. First, a landlord cannot be held financially liable for disrepair that the landlord was not aware of or could not reasonably be expected to have been aware of. This principle is reflected in s. 30(2) and in the obligation to mitigate in s. 16.

22. Second, if a landlord responds in a timely and effective manner to most disrepair problems no remedy will flow. I believe this is because when landlords and tenants enter into tenancy agreements both parties reasonably expect that some disrepair will occur during the course of the tenancy. It is a normal occurrence within the expectation of both parties. So if such anticipated normal disrepair problems arise and are dealt with efficiently and quickly no remedy will usually flow to the tenant.

23. Third, pursuant to s. 34 of the Act a tenant is responsible for wilful or negligent damage to the rental unit or residential complex caused by the tenant or a guest of the tenant’s. This does not mean that the landlord is not responsible for fixing the disrepair; but section 34 means no monetary remedy will flow to a tenant where the disrepair is a result of the tenant’s own negligent or wilful actions.