Holes in the Wall (LTB-Maintenance)
SOT-75954-16 (Re), 2017 CanLII 48982 (ON LTB)
15. On or about September 10, 2016, the Tenants noticed a hole in the basement wall adjoining the two (2) units. They looked through and could see through to the other side, which was the basement of unit 9. PDF testified, and I accept, that they spent a lot of time in their basement, where his “man cave” was located. PDF testified, and I accept, that the hole was not there the previous week, as corroborated by KH (below).
25. While not malicious, the hole in the wall was an issue of disrepair, promptly reported to the Landlord. The evidence from KH does not support that the Landlord addressed repairs “on unit 9 side”. KH attended unit 9 on two (2) occasions, on August 31, prior to the hole being discovered, and in December, when the hole had been filled with spray foam.
26. PDF testified, and I accept, that approximately two (2) days later, when nobody came to do anything about the hole, he sealed up the hole with a tube of caulking. I also accept KH’s evidence that the hole had been filled with spray foam on the side of unit 9.
27. The Landlord did not repair the hole. The Landlord thought it was frivolous and not an emergency health and safety issue, warranting their attention. Nobody even came to inspect the hole from the Tenants’ basement in September 2016. While the Landlord reached out to the police regarding the issue, certainly, nothing would have precluded the Landlord from repairing the hole after the police investigation. I find that the Landlord failed to carry out its obligations under subsection 20 (1) of the Act to repair and maintain the rental unit.
28. The hole was approximately 2 centimeter in diameter and approximately 5 feet off the floor, pursuant to the police report. While it was not a large hole, and was located behind the Tenants’ furnace, I do not find that this issue constituted a minor inconvenience which should be considered a normal part of life under the de minimis concept. In the context of the ongoing conflict between the neighbours, the hole, regardless of its size or its location, was an issue serious enough to cause great discomfort and a sense of insecurity. The hole was a point of “contact” or exposure between the parties, which the Landlord insisted that the parties avoid. I find that the Landlord’s failure to inspect and fix the hole, given the conflict between the neighbours known to the Landlord, was serious enough to constitute a breach of the Tenants’ right to quiet enjoyment of their unit.
33. I shall award abatement inclusive of damages for breach of the Tenants’ right to quiet enjoyment, on account of the September 6 incident (taking photographs of ADF’s company vehicle) and the hole in the wall. I fix the abatement in the global sum of $650.00, considering that the Tenants were able to mitigate their damages by covering the hole in two (2) days and considering that the Tenants did not establish “causation” in respect of their more serious mental health issues. I also consider that this award does not cover the incidents between July 1, 2016 and August 22, 2016, given my finding that the Landlord responded to these incidents by meeting with the Tenants and unit 9 tenants.
