Loss of Income (RTA)

TST-50926-14-AM (Re), 2015 CanLII 9134 (ON LTB)

83. The Tenant’s application also seeks compensation for lost income and replacement costs for lost or damaged items. In a proper case such losses are recoverable under s. 31(1)(b) and s. 31(1)(f) of the Act.

84. In this instance the Tenant seeks lost income for losing opportunities to sell her photographs. She says that on two occasions she arranged to show her photographs and offer them for sale in a room in the residential complex that can be reserved with the condominium corporation. Her application says this happened twice: on February 1 and March 2, 2014. During the hearing she gave me a summary of her claims which says it happened three times: on February 1, March 15, and April 25, 2014.

85. Even if I accept the assertion that it was reasonable for the Tenant to cancel these events in light of the Landlord’s behaviour, the difficulty with these claims of lost income is that it is entirely speculative. The Tenant has no idea if she would have sold any photographs at these events or how many she would have sold. No evidence was led by her as to her average income from other like showings of her photographs. This means the only evidence in support of the Tenant’s claim for lost income is her belief she would have had some sales. That is not sufficient to support such a claim.

86. The Tenant also seeks lost income in the form of lost rent from a roommate. She alleges that but for the Landlord’s behaviour she would have rented a room to a young woman I will refer to as M. Among the materials the Tenant filed is a series of text messages dated January 27, 2014. They appear to be with M. In them M asks on January 27, 2014 about coming to see the unit. The Tenant replies:

Sorry, I only discovered today that the landlord… is immoral. I decided not to introduce you to him, to avoid you being cheated. Please find another place.

87. The Tenant then writes:

But wait until I settle down with another landlord, and you will be contacted to share the rental.

88. The Tenant also provided me with an empty envelope addressed to M from the Landlord dated March 16, 2014. No evidence was led as to what was inside this envelope.

89. In the absence of testimony from M I am not satisfied that anything the Landlord did or did not do caused the Tenant to lose rental income from M or any other prospective roommate. The text messages quoted above indicate it was the Tenant who decided not to rent a room to M; no evidence was led indicating M refused to rent a room because of the Landlord’s behaviour. As a result, this part of the Tenant’s claim shall also be denied.

90. The Tenant’s application also seeks compensation for photographs she believes the Landlord or his girlfriend removed from the rental unit. No police records were filed with the Board so I have no idea if the police investigated any theft allegation. The Tenant’s evidence with respect to what went missing and when and why she believes the Landlord or his girlfriend is responsible is so vague and lacking in particulars it simply does not meet the burden of proof.

91. The Tenant’s amended application also seeks damages arising from the breach in the nature of pain and suffering. Given everything that happened here I am satisfied the Tenant’s request in this regard is reasonable. Abatement of the rent in part can compensate for some impact on a tenant of a landlord’s breach but it is intended to address the difference in value to what is being paid for and what is being received. Where a landlord’s behaviour is such that it causes great distress and upset an award for damages in the nature of pain and suffering is appropriate because abatement is inadequate to compensate for those intangible losses. This is such a case.

92. The Tenant’s application asks for $4,000.00 for damages. In my view this is not an unreasonable amount for the Tenant to ask and this request shall be granted.

93. Essentially what happened here is the Landlord decided to hound the Tenant to get her to move out and eventually he succeeded. She initially responded by telling him to leave her alone. As early as February 2, 2014, she suggested to him that if he wanted her to move out the proper way to go about it was to serve notice of termination. He ignored what she was saying. He ignored the police. He lied to them and said he lived there. Over and over again he went to the rental unit against police advice and glued notices to the door of the rental unit. The Tenant entered into evidence at least 12 identical notices all dated March 15, 2014, sticky with glue. They were left on multiple dates even though they are identical and all dated the same. Photographs of the door show the Landlord’s use of glue damaged the surface of the door. The Landlord’s behaviour was so aggressive and egregious that his own condominium corporation refused him access to the rental unit; in my experience such behaviour on the part of a condominium corporation is unheard of.

94. The Landlord’s behaviour unnerved and upset the Tenant. She cancelled social events to show her photographs. She sought homeopathic remedies to relieve stress. At the hearings before me she was visibly upset. In fact her upset was such that her behaviour was not entirely rational. At the last hearing date before me, prior to entering the hearing room, she went to the Board’s security staff and asked them to sit in on the hearing to protect her from the Landlord. This was unnecessary as the Landlord has never assaulted her, or even physically threatened her, and there were two previous days of hearing before that last day without incident. But her behaviour is consistent with the conclusion that the Tenant experienced a great deal of stress and upset because of the Landlord’s behaviour.

95. The Tenant’s application also seeks a cease and desist order. As stated above, as the Tenant no longer lives in the rental unit that request is no longer necessary.

96. The application as originally filed also asked the Board to issue an administrative fine. This request was withdrawn in the amended application and not sought at the hearing before me.