Notice Law - N5 (Substantial Interference)

Regular Interference vs. Substantial Interference

Hasselsjo v. Effort Trust, 2019 ONSC 990 (CanLII)

[26] As indicated in paragraphs 22 and 23 of the Decision, the Board concluded that the Tenant had substantially interfered with the lawful rights and interests of the Landlord, and specifically the obligation pursuant to s. 20(1) of the Act to keep the rental units in a good state of repair. The Board did not, however, refer to what constituted “substantial interference with the lawful rights and interests.” Nor were we referred to prior decisions on this issue.

[27] In Parkview Management v. Dehas, the Board held that the tenants had interfered with the lawful right, interest or privilege of the landlord by installing a satellite dish antenna on the exterior of the building. He concluded that “substantial” applied both to the interference and to the right, privilege or interest.

[28] In Morguard Residential v. Peters the Divisional Court upheld the decision of the Board that, in not keeping the unit in a state of ordinary cleanliness, which was supported by photographs and other evidence, the Board had reasonable grounds for concluding that the Tenant had substantially interfered with a lawful interest of the landlord, namely the landlord’s obligation to comply with section 20 of the Act.

[29] In North Avenue Road Corporation v Travares the Board found that the impact of the quantity of cigarettes the tenant consumed substantially interfered with another tenant’s reasonable enjoyment of her rental unit and that a “lawful, privilege or interest of the Landlord was substantially interfered with” because of the tenant’s smoking. The Board decided, however, not to exercise its power to evict pursuant to subsection 83(1). The Divisional Court agreed with the Board’s conclusion on substantial interference but held that, in deciding against termination of the tenancy, the Board erred by failing to consider the greater responsibility of the Landlord pursuant to s. 20 which extended beyond the specific complaint. The Divisional Court granted the appeal of the Landlord and sent the matter back to the Board for re-hearing.

[31] The Board held that the fact that an insurance company refused to provide a quote for the Landlord after seeing the amount of “stuff” the tenant had on an exterior balcony and piled up in the kitchen window interfered with the landlord’s financial interest but not to the standard of “substantially” as required by the Act. With respect to the fire hazard and the hoarding and the pest control issue, the Board found that the failure of the tenant to move his belongings around and prepare for treatment constituted a substantial interference with a lawful right, privilege and interest of the landlord but the conduct of the tenant had largely been fixed during the 7 day notice period and the N5 notice was voided. In the end, the Board did not terminate the tenancy but imposed many conditions on his future occupancy.

[32] As these cases demonstrate, the circumstances in which the Board has found a “substantial interference in the rights and interests of the Landlord” are those such as smoking, hoarding that creates a fire hazard, failure to prepare a unit for pest control treatment, and affixing a structure to the exterior of the building.

[33] We are satisfied that the Decision is not reasonable for two reasons.

[34] The first reason arises from the Board’s conclusion that the Tenant’s actions substantially interfered with the Landlord’s “lawful rights and interests”. Based on paragraph 27, it is clear that the substantial interference found by the Board pertained to interference with the Landlord’s obligation to maintain the property in a habitable state. The Board held that the Tenant’s actions “substantially” interfered with those obligations because they had the effect of putting other residents at risk of exposure to pests and other hazards that might arise from the rental unit.

[35] We acknowledge that such circumstances could constitute substantial interference with a Landlord’s rights and interests provided there is evidence of a current need to implement pest control and physical obstruction by the Tenant. However, those were not the circumstances in the present case. Instead, the Tenant complied with the N5 notice to allow inspection and the inspection revealed that there was no pest infestation in her unit. Because she had complied with the N5 notice within 7 days, that notice was void. There was no evidence of any subsequent request to inspect and no allegation of pest infestation in her unit. Furthermore, there was no evidence upon which the Board could find or infer that the Tenant would not in the future admit entry notwithstanding her admittedly annoying actions. In any event, the Landlord retained the legal right of entry. In short, there was no evidence before the Board that could support those findings. In reaching that determination, the Board therefore committed an error in law.

Incorrect Information Regarding How to Void the Notice

TSL-95762-18 (Re), 2018 CanLII 111695 (ON LTB)

1. The Landlord’s main complaints in this application were contained in an N5 notice to terminate the tenancy for substantial interference with reasonable enjoyment. The Tenant brought a preliminary motion that I find the N5 to be invalid because it contained incorrect information regarding how it could be voided. I granted the motion.

2. The rental unit is a condo unit. The N5 set out various instances in which the Tenant is alleged to have made excessive noise and parked in the wrong parking spot. The N5 also stated that because the condo management company received complaints about the Tenant’s behaviour, the Landlord was charged condo fees totaling $1,141.30.

3. The Landlord also wrote, at various points in the N5, that it could be voided by the Tenant taking various steps to reduce noise, taking various steps to park in different ways, and paying the Landlord $1,141.30.

4. The problem with the N5 is that the Landlord did not have the authority to decide how it could be voided. The right to void an N5 comes from section 64 of the Residential Tenancies Act, 2006 (the ‘RTA’):

64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

(2) A notice of termination under subsection (1) shall,

(a) provide a termination date not earlier than the 20th day after the notice is given;

(b) set out the grounds for termination; and

(c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.

(3) The notice of termination under subsection (1) is void if the tenant, within seven days after receiving the notice, stops the conduct or activity or corrects the omission.

5. In other words, to void the notice, the Tenant must “stop the conduct or activity” or “correct the omission” that substantially interfered with the Landlord’s rights. What steps the Tenant takes to stop the conduct is up to the Tenant. The Board’s N5 form states that “you have 7 days to stop the activities or correct the behaviour described,” and that is all the information about voiding that needs to be on the notice.

7. Most seriously, the N5 also stated that the Tenant had to pay the Landlord $1,141.30 to void it. That, too, was not true. The Landlord had no authority to demand that the Tenant reimburse him for condo fees. Subsection 134(1)(a) of the RTA prohibits the Landlord from collecting, requiring, or attempting to collect any penalty or like amount of money not authorized by the RTA. There is no authority in the RTA for the Landlord to collect condo fees, even if the fees were assessed because of the Tenant’s conduct.

8. In short, the N5 fundamentally misstated the law by telling the Tenant that to void it, he had to take specific steps, some of which he did not actually have to take. The N5 did not comply with subsection 64(2)(c). Instead of requiring the Tenant to cease the conduct that substantially interfered with the Landlord’s reasonable enjoyment, it required him to do things that he did not have to do.

9. The Landlord argues that, even if the offending portions of the N5 are invalid, the rest of the N5 should still be valid. I do not agree. The N5 fundamentally misstated the law regarding how it could be voided. The Tenant, on receiving the notice, cannot be expected to have known that he could void it by complying with some parts of it and ignoring the rest. The notice was misleading in its entirety.

10. Since no valid N5 has been served, the portion of the Landlord’s claim respecting substantial interference is dismissed.

Void for Vagueness

Gatien/Brown v. Bombaci, 2019 ONSC 2679 (CanLII)

[1] The tenants raise one ground of appeal in this proceeding that seeks to overturn the order of the Landlord and Tenant Board (the “Board”) dated January 24, 2018, which terminated their tenancy and ordered them evicted. They raise a technical argument that the Board had no jurisdiction, because the N5 form that commenced the proceedings was void on its face for non-compliance with the legislation.

[2] Sections 43 and 62 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) set out the notice requirements in a proceeding such as this, where the landlord seeks to terminate a tenancy because the tenant has wilfully or negligently caused undue damage to the rental property.

[3] The tenants argue that the N5 form was defective because under Reason 2 (willful or negligent damage), the landlord failed to fill in the bullet beside the statement that the tenants had 7 days to correct the damage by paying amounts to repair or replace the damaged property. However, the landlord had filled in the amounts payable to repair or replace the property.

[4] The tenants also argue that the Notice was defective because it specified 2 amounts: one for repairs and one for replacement. The tenants argue that the landlord must specify one or the other.

[5] The Board rejected the tenants’ preliminary objection, finding that a reasonable person would have known they had 7 days to void the N5 Notice, because the amounts payable to void the Notice were filled in on the form. There was no evidence from the tenants that they were confused by the form.

[6] A request for reconsideration was rejected by the Board.

[7] An appeal lies to this Court pursuant to section 210 (1) of the Act only on a question of law. The parties are agreed that the standard of review is reasonableness.

[8] The tenants have identified no error of law in this appeal. The Board reasonably concluded that the N5 form was compliant with the Act, because a reasonable person would understand from reading the form that he or she had 7 days to act to repair or pay for the damage.

[9] The purpose of the Notice is to communicate to the tenants the case to be met and the options to void the Notice. When this Notice is read as a whole, including the appendices and page 3 of the form advising the tenant what to do to avoid eviction, it conveyed the necessary information to the tenants and was compliant with the Act.

[10] Moreover, s. 62(2)(c) does not require the landlord to choose between two options: pay to repair or pay to replace. It is in the tenants’ interest to be given all the options: do the repairs themselves, or pay for the repairs, or pay for replacement. Here the landlord had provided detailed information about the tenants’ options to remedy the situation.

[11] In our view the Board’s decision was reasonable. Therefore, the appeal is dismissed. No party seeks costs.

TEL-79009-17 (Re), 2017 CanLII 60227 (ON LTB)

10. The Landlord’s application alleging substantial interference with reasonable enjoyment must be dismissed because the Landlord’s notices of termination fail to meet the mandatory requirements of the Act.

12. The notices and certificates of service filed by the application indicate the Landlord served the Tenant with a notice of termination pursuant to s. 64 of the Act on March 13, 2017. So the seven day voiding period runs from March 13, 2017 to March 20, 2017. But the second notice filed with the application pursuant to s. 68 of the Act concerns an incident that occurred on March 19, 2017 which is within the 7 day voiding period. So based on the Landlord’s documents alone she cannot assert the Tenant rendered the first notice void. However, the date of termination on the first notice is such that the Landlord can amend her application to be based on the first N5 notice. I have amended the application accordingly on my own motion.

13. The difficulty that arises with the Landlord’s first notice of termination is that it is vague and lacking in particulars. All it says is:

I got many complain from other tenants about Apt 1 always screaming, yelling swearing and he go to other door, scary some body, too loud music too smocking with drinking, it is really interfered to other tenants. [Quoted as written.]

14. The reason this is a problem is because subsection 43(2) of the Act says a notice of termination given by a landlord to a tenant must also set out the reasons and details for the notice.

15. In order to assist the parties to understand the issue, I provided them both with a copy of the Divisional Court’s decision in Ball v. Metro Capital Property, (2002) O.J. No. 5931. I then stood the hearing down so the parties could provide submissions.

16. Ball v. Metro Capital Property stands for the proposition that the kinds of particulars that should be contained in a notice which is about a tenant’s behaviour should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”. The notice here clearly does not meet this requirement.

17. The Landlord argues that she brought with her to the hearing all of the evidence the Board could require including details such as dates and times.

18. The problem with this argument is that a notice of termination cannot be amended and the rationale for the rule in Ball v. Metro Capital Property is that the Tenant has the right to know the allegations in advance of the hearing so he can prepare to defend the application. In addition, a notice like this one is voidable so sufficient particulars are required so a tenant knows what he or she must do to void the notice; absent sufficient detail the tenant functionally loses the right to void the notice.

19. Given the above, I find that the notice of termination served on the Tenant pursuant to s. 64 of the Act fails to meet the mandatory requirements of the Act. The Landlord’s application based on this notice must therefore be dismissed.

TSL-85769-17 (Re), 2017 CanLII 142659 (ON LTB)

4. As I stated at the hearing, the Landlord’s Form N5 for substantial interference reasonable enjoyment and or lawful rights, privileges or interests is defective because it was unclear whether the Tenant had to void the N5.

5. However, the Form N5 is in substantial compliance with respect to the allegation of wilful or negligent damage because the Tenant knew or ought to have known that the N5 notice could be voided if he paid the amount to replace the damaged property, as the amount was reflected on the Form N5.

Multiple Notice's Cause Confusion

TSL-93538-18 (Re), 2018 CanLII 120835 (ON LTB)

1. The Tenant made a preliminary motion to dismiss the Landlords’ application.

2. It is the Tenant’s position that because of confusion resulting from the Landlords having served the Tenant with N5 and N6 and N7 notices at the same time with the same termination date claiming in all three the same two reasons for ending the tenancy and evicting the Tenant, namely, for having removed the baseboard heaters and for fire code violations.

3. It is undisputed that an additional allegation in the N5 notice (not made part of the N6 and N7) regarding the Tenant obstructing access to the parking lot was corrected by the Tenant within the 7 day period following the service of the N5 notice. Therefore the allegation in N5 respecting parking has been voided in accordance with section 64(3) of the Residential Tenancies Act, 2006 (Act).

4. The only other issue in the N5 that is also not included in the N6 and N7 is the allegation that the Tenant interfered with the Landlords’ attempts to access the rental unit to perform maintenance. I find that this allegation has also been voided because it is not disputed that the Landlord did not seek further access to the rental unit within the 7 day voiding period.

12. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

13. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told he can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.

14. Further, I cannot see how it makes any difference in what way the Tenant is able to void the N5 notice, such as paying for the repairs within the 7-day period, when that notice is being compared with the N6 and N7 notices with respect to whether the combination of all three when served together creates confusion.

15. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s application to terminate the tenancy in the absence of valid notices of termination.

Unlawful Use of Common Space (Storage)

TNL-00728-17 (Re), 2018 CanLII 42594 (ON LTB)

Storage in the furnace room

4. The Landlord claims that the Tenants are storing some of their belongings in the furnace room, and that they are not permitted to do so under the lease. He states that this obstructs access to the furnace for service. He also states that they are keeping a stove in the common areas of the basement outside their rental unit.

5. The Tenants state that they store a bicycle and some empty boxes in the furnace room, that they have done so without objection since they moved into the rental unit, and that the upstairs tenants also store items in the furnace room. They also state that the additional stove in the common area is there because the stove provided by the Landlord does not work properly.

6. The Landlord states that the upstairs tenants have the right under their tenancy agreement to store items in a corner of the furnace room. He also denies that any issues regarding the functioning of the stove provided for use by the Tenants have been raised with him.

7. I am satisfied that the tenancy agreement does not entitle the Tenants to store their belongings in the furnace room, or to store appliances in the common areas of the basement, and that, by doing so, the interfering with a lawful right, privilege or interest of the Landlord.

It is ordered that:

1. The Tenants shall refrain from parking more than one vehicle on the driveway of the residential complex without the consent of the Landlord.

2. The Tenants shall refrain from storing their belongings in the furnace room or other areas for which they have not been granted the right to store their belongings without the consent of the Landlord.

3. If the Tenants fail to comply with paragraphs 1 or 2 above, the Landlord may apply under section 78 of the Act, within 30 days of the breach, without notice to the Tenants, for an order terminating the tenancy and evicting the Tenants.

4. The Tenants shall pay to the Landlord $190.00 for the cost of filing the application.

5. If the Tenants do not pay the Landlord the full amount owing on or before January 29, 2018, they will start to owe interest. This will be simple interest calculated from January 30, 2018 at 3.00% annually on the balance outstanding.

Landlord Not Correctly Named on the Notice

TSL-85025-17 (Re), 2018 CanLII 42621 (ON LTB)

2. The Landlord requested to amend the application to correct the name of the corporation in the style of cause. The Tenants did not dispute that the Landlord was incorrectly named in the application and in the notice of termination but they argued that the incorrectly named landlord rendered the notice of termination void. However, as I explained at the hearing, section 43 of the Residential Tenancies Act, 2006 the “Act”), which sets out the essential elements of a notice of termination, does not specifically state that a landlord must be correctly named in a notice. Therefore, I find that the landlord’s failure to name itself correctly in the notice does not render it defective and void.

3. The Tenants also raised the recent amendment to section 48 of the Act, which prevents a corporation from filing a landlord’s own use application. However, that amendment came into effect on May 30, 2017, several months after the Landlord’s application was filed and it does not apply to this application. In the present case, the Landlord corporation owns the residential complex. It filed an application seeking vacant possession of the rental unit so the son of the sole owner of the corporation can move into the unit. I am satisfied that the individual owner, CB, is the directing mind of the corporation. As such, I am satisfied that CB meets the definition of “landlord” in the Act because he is also an owner of the rental unit. Accordingly, CB will be referred to as the Landlord in the remainder of this order. This approach is consistent with the court’s decision in Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII).

Moving Out According to the Notice

TST-25926-12 (Re), 2012 CanLII 36415 (ON LTB)

5. The Tenant moved out of the rental unit pursuant to such Form N-5 on November 5, 2011. In this application the Tenant requests return of a pro-rated portion of the November, 2011 rent.

6. The Landlord takes the position that the Tenant was wrong to move out in accordance with that Notice. The Landlord’s view is that the agreement to terminate takes precedence over the Landlord’s own and subsequent Form N-5 Notice. The Board cannot agree. If the Landlord intended to rely upon the original N-9 Notice and the agreement to terminate, then the Landlord ought not to have breached that agreement by serving a new Form N-5.

8. The Tenant was entitled to accept the Landlord’s breach and to move out of the rental unit on or before November 10, 2012. It was incumbent upon the Landlord not to serve a Form N-5 Notice to Terminate if it did not mean it.

12. This argument is incorrect for two reasons. First, there is no evidence that the Landlord had disclosed to the Tenant, on or before November 17, 2012, its intention to withhold the Tenant’s overpayment referable to the period after November 5, 2012. Therefore, the Tenant’s claimed had not crystallized. Secondly, that was a Landlord’s application for compensation for damage to the residential complex. The Tenant is not legally obligated to raise a claim of set-off for amounts otherwise in dispute between the parties in the context of any particular Landlord application and does not waive any rights by declining to do so. There is no issue estoppel here nor, of course, is the Tenant’s present claim res judicata.

Morguard Residential v Asboth, 2017 ONSC 387 (CanLII)

[39] The appellants submit that the Board erred in law by failing to apply s. 37(5) of the Act and failing to find that the termination provisions in the Colonnade tenancy agreements were void as contrary to that section. In addition, the appellants argue that in accordance with s. 4(1) of the Act, any contractual provision that is inconsistent with the Act is void.

[41] I am unable to conclude that the member or the reviewing member erred in law in their approach to this issue. Section 37(5) is designed to protect the security of tenure of tenants by ensuring that tenants cannot be induced to contract out of their rights at the time when they enter into a tenancy agreement. Specifically, having regard to the fact that landlords and tenants are often not in an equal bargaining position when leases are negotiated, s. 37(5) precludes landlords from extracting tenancy termination agreements at the time leases are signed. (See Clandfield v. Queen’s University (Apartment and Housing Services) (2001), 2001 CanLII 4969 (ON CA), 54 O.R. (3d) 475, 200 D.L.R. (4th) 475 (C.A.), which dealt with an identical provision in the predecessor Tenant Protection Act, 1997, S.O. 1997, c. 24.)

[42] But this case is quite different. The landlord and tenant relationship between the parties in this case pre-existed the tenancy agreement. It was suspended by the redevelopment of the Heathview, but the tenants had the right to return to the premises upon completion and continue the relationship. The landlord gratuitously offered to continue the landlord and tenant relationship in alternative accommodation at the Colonnade in the interim, at a reduced rent, and the tenants accepted the offer. The agreement to terminate the temporary tenancy when the redevelopment was complete was reached as part of this overall agreement, and not separately at the time the Colonnade tenancy agreement was entered into or as a condition of entering into it. The Colonnade tenancy agreement was not a stand-alone agreement. It cannot be interpreted in isolation from the overall relationship of the parties.

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	538
Page Categories:	[Maintenance Obligations (LTB)]
Citation:	Notice Law - N5 (Substantial Interference), CLNP 538, <7N>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2020/06/12

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TSL-91857-18 (Re), 2018 CanLII 86137 (ON LTB)

7. There is no dispute between the parties on the lack of maintenance in the yard. There is no doubt from the evidence that the hedges and weed trees have become overgrown during the tenancy. There is also no dispute as to a wasp nest nearby. The dispute between the parties is who should be responsible for such maintenance.

8. The application before me is an application for wilful or negligent damage. The issue before me is whether or not there is any evidence of wilful or negligent conduct on the part of the tenant resulting in undue damage. I find that failing to trim shrubs, remove weeds, a wasp nest and debris simply do not amount to undue damage.

28. The Landlord alleged that her lawful right, privilege or interest have been affected by the Tenants’ conduct in that the lack of maintenance by the Tenants led to a state of disrepair which caused the city to issue an order against the Landlord on February 1, 2018, requiring the Landlord to address the problems identified in the order.

29. Section 20 of the Act states that Landlords are responsible for the maintenance of the property. Section 33 of the Act states that the Tenants are responsible for the ordinary cleanliness of the rental unit. That ordinary cleanliness obligation does not extend to maintenance of the yard such as weeding or fertilizing.

30. There is no question that section 20 of the Act makes it the Landlord’s responsibility to repair and maintain the rental property. The Landlord relies on the lease signed by the parties on July 18, 2016, in which the Tenants, as lessees, covenanted to maintain the property under articles 8 and 11.

31. The evidence is that the Tenants refused to sign the renewal lease for 2017-2018 because they disagreed with those terms and the tenancy continued on a month to month basis without a new or renewal lease.

32. In Montgomery v. Van 2009 ONCA 808 (CanLII), the Ontario Court of Appeal stated that a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, but a landlord can contract with a tenant to perform maintenance services, so long as that contract is severable from the lease.

33. For it to be a contract, there must be consideration separate from the tenancy. In order for the contract to be severable, it must be entirely unrelated to the tenancy. In this case, there is insufficient evidence of a severable contract between the parties which is unrelated to the tenancy or that there is consideration separate from the tenancy.

34. Further, the severable contractual obligation cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met. The Tenant would simply be acting as the Landlord’s agent for that maintenance service, the failure of which may be a breach of contract but cannot be a ground for terminating the tenancy.

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	538
Page Categories:	[Maintenance Obligations (LTB)]
Citation:	Notice Law - N5 (Substantial Interference), CLNP 538, <https://rvt.link/9a>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2020/06/12

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Crete et al. v. Ottawa Community Housing Corporation et al., 2023 ONSC 5141 (CanLII)

[25] At the time of Daniel’s fall on March 26, 2017, Marguerite and Daniel were both OCHC’s tenants at the property where Daniel fell. Marguerite says that from February 1, 1989, until October 24, 2018, she, her now deceased husband, Daniel and André (another son) were all OCHC’s tenants at the property. Marguerite says she was not living at the property at the time of Daniel’s fall, but she was still listed as a tenant. Marguerite says that she and her husband had nonetheless cleared snow off the pathway and driveway that day and had put salt on the driveway.

[26] The relevant provision in the Cretes’ lease, para. 6(d) is titled “Snow Removal” and reads as follows:

(d) The Landlord is [ ] is not [X] responsible for snow removal from driveways [X] common laneways [ ]. In singles, doubles and row housing, the Tenant is responsible for snow removal from the front and back doors of the Rented Premises to the main walkways.

[27] The Rented Premises in the lease were identified as being 499 Marlin Private, Ottawa. Carport parking for one vehicle was included in the lease.

[28] As I noted in para. 1 of these reasons, the property is a row house.

[29] The lease provided that the landlord would keep the keep the Rented Premises fit for habitation, in a good state of repair and in compliance with all laws applicable to the operation of a residential rental project. It also provided that the tenant would keep the Rented Premises in a state of cleanliness.

[30] Although it was not her primary argument, Marguerite submitted that “snow removal” was not defined in the lease and that the lease did not indicate who was responsible for preventing ice from accumulating on the front step or driveway or who was responsible for spreading sand or salt in these areas.

...

[48] It is evident from Marguerite’s photographs that the front step and the short pathway in front of the Cretes’ home serve no purpose in common with other tenants in the residential complex. There would be no reason for tenants in the complex, other than the Cretes, to make use of the Cretes’ front step or pathway, unless they were visiting the Cretes. The pathway provides a link between the front door of the Cretes’ home and the “carport parking” which was specifically provided for in their lease and exclusive to them. The pathway does not lead anywhere else. To access the pathway and the front step, other tenants would be required to first walk up the driveway or across the small lawn.

[49] It is also evident from Marguerite’s photographs that the Cretes treated the area in front of their house as though they owned it. They decorated the area with a lawn ornament and planters and placed outdoor furniture on the pathway. I agree with OCHC’s counsel’s observation that if any of the other tenants in the complex were to place their own chairs on the pathway in front of the Cretes’ home without an invitation, the Cretes would be of the view that the neighbours did not have the right to do so. I am satisfied that the front step and the pathway were areas used exclusively by the Cretes and were not common areas for the use of other tenants in the complex.

[50] For the purposes of these motions, it is immaterial that the term “exclusive use” is not defined in the Cretes’ lease or in the RTA. I am satisfied that the area from which the Cretes were required to remove snow, which included the step where Daniel fell, was not an area that could be characterized as either “grounds for the use of tenants” under s. 1 of the Maintenance Standards regulation or “exterior common areas” under s. 26(1) of the regulation.

[51] As I have concluded that the front step where Daniel fell was not an exterior common area, the landlord’s obligation to remove unsafe accumulations of ice and snow from “exterior common areas” under s. 26(1) of the Maintenance Standards regulation had no application to the front step. The provision in the Cretes’ lease requiring them to remove snow from the front door to the main walkways is not, therefore, inconsistent with s. 26(1) of the regulation. Montgomery is distinguishable, as it dealt with a landlord’s responsibility for ensuring that accumulations of ice and snow were removed from external commons areas.

...

[58] The LTB Vice Chair found that, unlike the leased property in Montgomery, which was in a multi-unit building, the house leased by the tenant had no exterior common areas, only areas of exclusive use. The Vice Chair was of the view that the removal of snow and general lawn maintenance in exclusive use areas are properly characterized as ordinary cleanliness obligations, which are the tenant’s responsibility under s. 33 of the RTA, and not maintenance obligations, which are the landlord’s responsibility under s. 20 of the RTA. The Vice Chair concluded that the delegation of these ordinary cleanliness responsibilities to a tenant in a lease is not improper.

[59] The obligation of the landlord under s. 20(1) of the RTA is to maintain a residential complex in a “good state of repair”. In Anstruther-Gough-Calthorpe v. McOscar, [1924] 1 K.B. 716 (U.K.), at p. 734, Atkin L.J. stated that the obligation to keep a property in “good repair” “connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged.”

[60] Except over time, snow and ice do not typically cause damage to property which needs to be repaired or made good. Snow and ice are transitory, like autumn leaves that need to be raked or swept or mud that is tracked onto a floor that needs to be mopped up. I find the logic of Cavarzan J. in Estey and the LTB Vice Chair in Perreault to be persuasive. I agree that the removal of snow (which includes the removal of ice and slush) from the exclusive use areas of a residential complex falls within the meaning of s. 33 of the RTA, which makes the tenant responsible for the ordinary cleanliness of a rental unit[3] and not under s. 20(1) of the RTA, the landlord’s responsibility for maintaining a residential complex and its units in a good state of repair.

Montgomery v. Van, 2009 ONCA 808 (CanLII)

[2] The appellant tenant commenced an action against a respondent landlord for damages after slipping and falling on the premises. In her claim, the tenant pleads that on January 30, 2003 she slipped on ice on the walkway leading to her basement apartment and suffered injury. In his defence the landlord pleads that the Conditions of Lease (the tenancy agreement between the parties dated July 7, 2002), provides that: “Tenants are responsible for keeping their walkway and stairway clean (including snow removal).” Based on this provision, he pleads further that the tenant’s injury was due to her own negligence in that “she failed to keep her walkway in a state of good repair, including free from snow and ice”.

[3] The landlord brought a motion to determine before trial the question of law whether the provision of the tenancy agreement is void because it is inconsistent with the Act. Taking the position that the provision is void, the tenant brought a cross-motion to strike out the paragraphs in the statement of defence that relied on the provision.

[4] The motion judge reasoned that it would be absurd to find that a tenant may never consent to participating in any snow removal tasks. She accepted the landlord’s argument that “landlords may fulfill their statutory obligations by delegating snow removal tasks to others”. She concluded that “the Act and associated regulations do not state that snow removal tasks may never be assumed by a tenant and, as such, the Conditions of Lease executed by the Tenant are not inconsistent with the Act and should not be considered to be void.” She granted an order that the tenancy agreement provides that “the Tenant will complete snow removal tasks with respect to the stairwell area is not inconsistent with the Act.” She dismissed the tenant’s cross-motion.

[9] I agree with the observation of the motion judge that the legislation only requires the landlord to “ensure” exterior common areas are free of unsafe accumulations of ice and snow. It does not prohibit a landlord from satisfying this statutory obligation by retaining others to provide the required services. Specifically, it does not prohibit a landlord from contracting with a tenant to perform snow removal tasks.

[13] In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement. The reason such a clause must be able to stand alone as an enforceable contract is because s. 16 of the Act voids provisions of tenancy agreements that are inconsistent with the Act or Regulations. The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.

[14] This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.

[15] In this case, the provision is inextricable from the tenancy agreement. It does not indicate a definite consideration for the snow removal task separate from the provision of the premises. As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services. The tenant lives in one of several basement apartments of a multi-unit residential complex. The provision vaguely places the task of snow removal “from their walkway and stairway” on tenants jointly. It does not set out specifically what part of the complex’s common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation. The provision fails to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.

[16] Landlords cannot fulfill their statutory duty to ensure the prescribed maintenance standards are met by provisions as ill-defined as this one. As I see it, this vague provision, even reading it as did the motion judge is nothing more than an impermissible attempt by the landlord to avoid his statutory obligations. I would conclude the provision is not consistent with the Act and is void.

Miaskowski v. Persaud, 2015 ONCA 758 (CanLII)

[47] First, the appellants argue that Mr. Persaud was bound by a continuing maintenance obligation in respect of the Property under s. 20(1) of the RTA and s. 26(1) of the Regulation. Section 26(1) of the Regulation imposes obligations on residential landlords to maintain “exterior common areas” and to remove unsafe accumulations of ice and snow, among other matters.

[48] The respondents submit that, as the Property was a single-family home, s. 26(1) of the Regulation does not apply as the driveway at the Property was not an “exterior common area”.

[49] The motions judge held that no “specific provision” of the RTA was inconsistent with the terms of the Lease. However, based on his reasons, it is unclear that he considered whether the maintenance standards imposed by s. 26(1) of the Regulation applied in this case and whether the landlord’s statutory duty under s. 20(1) of the RTA could be removed by the Lease, in particular, in light of this court’s decisions in Montgomery v. Van, 2009 ONCA 808, 256 O.A.C. 202 and Taylor v. Allen, 2010 ONCA 596, 325 D.L.R. (4th) 761

[50] By failing to address these matters, the motions judge erred in principle. Whether Mr. Persaud was freed of any obligations he might have under s. 20(1) of the RTA by reason of the Lease, and whether the maintenance standards set out in s. 26(1) of the Regulation apply in this case, are genuine issues requiring a trial.

[51] Second, the scope of the tenant’s snow and ice removal obligation under Schedule “A” to the Lease and the landlord’s obligations under s. 8 of the OLA are central issues in relation to the appellants’ claims against Mr. Persaud. While the motions judge referred to the tenant’s maintenance obligation under Schedule “A” to the Lease, he failed to address the pivotal language in the Schedule, which refers only to snow and ice on the sidewalks in front and at the sides of the Property, and not to hazards on the driveway where the accident occurred.

[52] The scope of the tenant’s maintenance obligation under Schedule “A” to the Lease is critical to the issue of Mr. Persaud’s potential liability under s. 8 of the OLA. As this court explained in Taylor, at para. 12:

Second 8(1) imposes a duty of care on the landlord to any person coming on to the property where the premises are occupied under a tenancy in which the landlord is responsible for the maintenance or repair of the property. This section applies whether or not the landlord is found to be an occupier. Section 8(2) adds a second requirement, namely, that only if the landlord’s default is such as to be actionable at the suit of the tenant will the landlord’s default constitute a breach of the landlord’s duty under s. 8(1). [Emphasis added.]

[53] Thus, the question whether the tenant was responsible under the Lease for removal of snow and ice hazards on the driveway of the Property, as opposed to the sidewalks, is integral to the issue of the landlord’s potential liability under s. 8 of the OLA regardless of whether the landlord was an occupier of the Property. In these circumstances, the scope of the tenant’s maintenance obligation under the Lease is a genuine issue requiring a trial.

[54] Third, the RTA imposes specific responsibilities on tenants of residential properties in some circumstances. Section 33 of the RTA, for example, provides that tenants are responsible for the ordinary cleanliness of their rental unit, except to the extent that the applicable tenancy agreement requires the landlord to clean it. It is arguable that, in this case, as in Estey v. Sannio Construction Co. (1998), 70 O.T.C. 293 (Ont. C.J. (Gen. Div.)), s. 33 of the RTA imposes an obligation on the tenant to remove snow. That said, I note that, in Estey, this finding rested in part on evidence that the tenant had removed snow and ice from the rented property in the past and believed that it was the tenant’s obligation to do so.

[55] In this case, neither the parties nor the motions judge addressed the potential application of those provisions of the RTA that deal with tenants’ responsibilities in relation to residential properties in light of the terms of the Lease, the intentions of the parties and any evidence about who, in fact, removed snow from the driveway at the Property. In these circumstances, whether the tenant, rather than the landlord, had contractual or statutory responsibility for the removal of snow and ice on the driveway of the Property is a genuine issue requiring a trial.

[56] Accordingly, for the reasons given, I would allow the appeal from the motions judge’s order granting summary judgment in favour of Mr. Persaud and dismissing the action as against him, set aside his order dated March 12, 2015 regarding Mr. Persaud, and reinstate the action as against him.

Taylor v. Allen, 2010 ONCA 596 (CanLII)

[10] The trial judge’s reasoning appears to begin with the finding that the respondent had no control over the premises, and since he was not in physical possession of the premises either, he did not meet the definition of “occupier” in s. 1 of the OLA and therefore had no duty of care to the appellant under s. 3 of the OLA.

[11] The trial judge then turned to s. 8 of the OLA which reads as follows:

Obligations of landlord as occupier

8. (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

Idem

(2) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.

Definitions

(3) For the purposes of this section, obligations imposed by any enactment by virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy, an implied tenancy and any contract conferring the right of occupation, and “landlord” shall be construed accordingly.

Application of section

(4) This section applies to all tenancies whether created before or after the commencement of this Act. R.S.O. 1990, c. O.2, s. 8.

[12] Section 8(1) imposes a duty of care on the landlord to any person coming on to the property where the premises are occupied under a tenancy in which the landlord is responsible for the maintenance or repair of the property. This section applies whether or not the landlord is found to be an occupier. Section 8(2) adds a second requirement, namely, that only if the landlord’s default is such as to be actionable at the suit of the tenant will the landlord’s default constitute a breach of the landlord’s duty under s. 8(1).

[13] The trial judge’s reasons clearly reference s. 8 and its requirements in finding that the landlord owed no duty of care to the appellant. While the trial judge does not explain why the requirements of s. 8 are not met in this case, this conclusion appears to rest on his finding that the rental agreement relieved the landlord of all maintenance obligations. In this court, the respondent suggested no other basis.

[14] The reasoning seems to be that the rental agreement rendered this a tenancy under which the landlord is not responsible for the maintenance or repair of the property, so that s. 8(1) was not engaged. Further, the rental agreement would render the landlord’s default not actionable by the tenants under s. 8(2) because it gives the tenants complete responsibility for maintenance of the premises. Hence, the reasoning would go, the respondent had no duty to the appellant under s. 8(1) of the OLA.

[19] Although the appellant’s first argument is enough to dispose of the appeal, I propose also to deal with the appellant’s second argument. The appellant says that in giving effect to the rental agreement that relieved the respondent of maintenance obligations as the basis for finding that the requirements of s. 8(1) and (2) of the OLA were not met, the trial judge erred in ignoring s. 94(1) and s. 80(1) of the Landlord and Tenant Act R.S.O. 1990 c. L. 7 (the LTA). Those sections impose a statutory duty on a residential landlord to maintain the premises, a duty that the landlord cannot escape by contract.

[20] I agree with the appellant. Sections 94(1) and 80(1) of the LTA read as follows:

94. (1) A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and despite the fact that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.

80. (1) This Part applies to tenancies of residential premises and tenancy agreements despite any other Act or Parts I, II or III of this Act and despite any agreement or waiver to the contrary except as specifically provided in this Part.

[21] Section 94(1) imposes a statutory responsibility on the landlord of residential premises to maintain and repair the premises. Section 80(1) provides that this responsibility prevails, despite any agreement or waiver to the contrary. See Phillips v. Dis-Management (1995) 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435 per Sharpe J. (as he then was).

[22] Since this was a residential premises, this statutory duty applied to the respondent landlord and could not be removed by his rental agreement with the tenants. Nor could the rental agreement serve as a defence to the respondent in a suit brought by the tenants if the danger created by the cinder blocks had caused them harm.

[23] The combined effect of ss. 94(1) and 80(1) of the LTA is therefore that, for the purposes of s. 8(1) of the OLA, these premises were occupied under a tenancy in which the landlord is responsible for the maintenance and repair of the premises. Equally, for the purposes of s. 8(2), the rental agreement could not prevent the landlord’s default being actionable at the suit of the tenants. As a consequence, the respondent landlord had a duty of care under s. 8(1) of the OLA, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

[24] In other words, s. 8(1) imposes on the respondent the same duty of care to the appellant that the respondent would have under s. 3 of the OLA as an occupier for a danger arising from his failure to maintain the premises.

[25] In summary, therefore, the respondent not only had a duty of care as occupier to the appellant under s. 3 of the OLA. He had a duty of care to the appellant under s. 8(1) of the OLA. The trial judge therefore erred in finding that the respondent owed no duty of care to the appellant.

[26] In my view, the findings of fact by the trial judge also necessarily entail the conclusion that the respondent breached his duty of care to the appellant imposed by s. 8(1) of the OLA. Particularly given that he created the danger in the first place by installing the cinder blocks surrounding the fire pit, by permitting the danger to continue the respondent landlord failed in his statutory responsibility to maintain the premises. The danger that caused the appellant harm arose from this failure. The respondent therefore breached his duty of care to the appellant under s. 8(1) of the Act.

[27] I conclude that the respondent landlord breached his duty of care to the appellant, both his duty under s. 3 of the OLA as an occupier and his duty under s. 8(1) of the OLA as a landlord with the responsibility to repair and maintain the premises. Taking into account the appellant’s contributory negligence, assessed by the trial judge at 50%, the respondent is therefore responsible for 50% of the damages suffered by the appellant jointly and severally with the tenants. I would split the fault between the landlord and the two tenants equally, just as the trial judge did with the tenants. Each of them should be found at fault for one third of 50% of the appellant’s damages.

TST-49807-14 (Re), 2015 CanLII 34298 (ON LTB)

20. It is clear from an e-mail to the Tenants dated June 9, 2013, that when the parties were negotiating the tenancy agreement the Tenants told the Landlord they could not afford the monthly rent of $1,350.00 that the Landlord was seeking. The e-mails says in part:

When you mentioned that $1200 was your top price, we discussed it and made a proposal to you that would allow for you to potentially get to your $1200. The $100 per month we offered for yard maintenance was extremely generous… we have offered this rebate opportunity to help you with your monthly expenses. The $50 per month if you found the basement tenant that was agreeable is again very generous…

21. As a result of these negotiations, paragraph 19 was added to the lease agreement prior to signing. It says:

The Landlord will give, make or perform the following incentives: A lease rebate in the amount of $100 will be given for each month that the tenant properly maintains the lawn, garden, driveway, sidewalks, and common areas. The rebate will be sent to the tenant via email transfer or direct payee through TD on the third day following the month in which the maintenance noted above was completed in a manner satisfactory to the landlord.

22. There is also a general clause in the lease that addresses the same kind of maintenance. Apparently it is standard for the Landlord’s leases. Paragraph 39 says:

The Tenant will also perform the following maintenance in respect to the Premises: The tenant shall keep the lawns and gardens in good condition and shall not injure or remove any tree or plant which may be in, upon or about the premises, and shall keep the sidewalks in front and at the sides of the premises free of snow and ice. The tenant shall keep the common areas free and clear of debris and in reasonable cleanliness.

23. Not long into the tenancy the Landlord formed the opinion that what the Tenants were doing for lawn maintenance was not sufficient. At the end of August, 2013, she told them she was no longer prepared to pay them for lawn care and she would be taking over mowing the lawn and caring for the flower beds. The $100 incentive payment stopped.

24. After that there was essentially an on-going dispute about who was responsible for what tasks. When winter arrived it spilled over into the question of who was responsible for snow removal. It also led to other conflicts such as the incident that occurred on October 9, 2013, which is discussed more fully below.

25. The starting point with respect to this issue is s. 20(1) of the Act which 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.

26. Toronto’s Property Standards By-Law requires lawns and grounds be kept trimmed and snow and ice be removed within 24 hours of a snow fall. The By-Law is a “housing and maintenance standard” so s. 20(1) essentially means that the Landlord is responsible for this kind of maintenance work.

27. Subsection 3(1) says:

This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.

28. This provision means that landlords and tenants cannot contract out of their responsibilities. Any attempt to do so by way of a lease agreement is not enforceable.

29. During the course of the hearing I provided the parties with a copy of the Court of Appeal’s decision in Montgomery v. Van, 2009 ONCA 808 (CanLII). It addresses this issue in the context of snow removal and the previous legislation, the Tenant Protection Act, 1997 (the ‘TPA’). The provisions of the current Act are similar to those under the TPA and I believe Montgomery v. Van is applicable here and binding on the Board.

30. Essentially, Montgomery v. Van says that although a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, a landlord can contract with a tenant to perform maintenance services. The Court says in part at paragraphs 13 to 15:

In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement…. it cannot be a term of the tenancy that the tenant complete snow removal tasks.

This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.

In this case, the provision is inextricable from the tenancy agreement. It does not indicate a definite consideration for the snow removal task separate from the provision of the premises. As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services. The tenant lives in one of several basement apartments of a multi-unit residential complex. The provision vaguely places the task of snow removal “from their walkway and stairway” on tenants jointly. It does not set out specifically what part of the complex’s common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation. The provision fails to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.

31. In the context of clauses 19 and 39 of the lease set out above, clause 19 created a genuine and severable contract between the Landlord and the Tenants requiring the Tenants to properly maintain the lawn, garden, driveway, sidewalks, and common areas. There was specific consideration payable to the Tenants for the tasks. As with any such separate employment contract the Landlord was entitled to end it when she did. That means that as of August 31, 2013, the Landlord became responsible for those tasks; the Tenants did not have to do anything.

32. In contrast, clause 39 of the lease does not create a similar severable contract between the Landlord and the Tenants. It is a general clause only and similar to the one the Court of Appeal was dealing with in Montgomery v. Van. This means that the Landlord was responsible for ice and snow clearance throughout the tenancy and lawn maintenance after August 31, 2013.

33. Because the Landlord genuinely believed the lease agreement between the parties required the Tenants to do various exterior maintenance tasks, the parties disagreed about who was to do certain tasks, particularly snow and ice removal.

34. Specifically, on February 15, 2014, the Landlord issued a notice of termination alleging substantial interference; one of the reasons for that notice was the Tenants’ failure to clear ice and snow. (However, the notice was never the basis of an application to the Board.) On February 24, 2014, the City issued the Landlord a notice of violation for failing to clear ice and snow. On one occasion there was a particularly heavy snowfall that was not cleared that made it impossible for the Tenants to drag their garbage to the front of the house. Apparently the Landlord threatened to call the police on the Tenants during one confrontation involving snow removal.

35. There was another minor e-mail argument when a neighbour apparently cut down some branches that ended up in the backyard.

36. As the Landlord was the one who was legally responsible for exterior maintenance her insistence on the Tenants doing those tasks after August 31, 2013, and serving notice of termination on them in part because they failed to do them constitutes a breach of section 22 of the Act. It is also arguably a breach of section 23 as the Landlord reasonably ought to have been aware that the Tenants would find her behaviour in this regard to be unwelcome.

37. With respect to remedy for the Landlord’s breach, the passage of time means the only remedies requested in the application that are still relevant are: abatement of the rent; and a fine.

38. Abatement is a contractual remedy. It addresses the idea that if a tenant is paying for a bundle of goods and services and not receiving everything being paid for then the rent should be abated in an amount proportional to the difference between what is being paid for and what is being received.

39. Here the Tenants were paying for exterior maintenance by the Landlord for the period after August 31, 2013 and for the right to be left alone and not subject to demands that they do tasks they were not responsible for. They did not receive those things so they are entitled to abatement of the rent.

40. That being said neither party offered any submissions with respect to quantum of abatement. Given that the Landlord placed a value of $100.00 a month on exterior maintenance in the lease it seems to me that is a reasonable abatement of the rent to award the Tenants for the period September 1, 2013 to February 28, 2014. This is when it appears the Landlord stopped making demands that the Tenants do exterior maintenance work. This amount totals $500.00 which in my experience is in line with similar cases at the Board alleging similar facts.

41. With respect to the request in the application for an administrative fine, I do not believe the situation here calls for one. Fines are intended to deter landlords from repeating their behaviour where that behaviour reflects a flagrant disregard for the Act and the other remedies awarded are not adequate to achieve the goal of deterrence. Here, I do not believe there is any need for further deterrence. The Landlord clearly did not understand she could not pass on responsibility to the Tenants for maintenance and repair; she does now and no further remedy is needed to prevent similar situations from occurring.

42. I would note here that the Tenants’ application also requests moving costs, termination of the tenancy, and return of post-dated cheques. The tenancy was terminated by Board order so that request is essentially moot; and no evidence was led with respect to moving costs or cheques so it would not be appropriate to consider those requests.

CET-82999-19 (Re), 2019 CanLII 87714 (ON LTB)

1. In this application, the Tenants allege that the Landlord failed to maintain the roads in this land lease community, specifically with respect to snow removal for the period of November 1, 2018 to March 31, 2019.

13. Given that this letter was issued to the Landlord on February 26, 2019, I am satisfied that this supported the Tenants position regarding poor snow removal and ice build-up continued up to February 28, 2019. Although, the Landlord submitted that there was a particular area within the community that had ice build-up due to an artisan well, in accordance with section 24.1 of the Town’s By-Law, the Landlord must clear snow and ice from the roadways. Failing to do so for any reason amounted to a breach of the By-Law, sections 20 and 161 of the Act.

It is ordered that:

1. The Landlord shall pay to the Tenants a rent abatement of 10% for each month of December 2018, January 2019 and February 2019.