Serious Risk to Safety (LTB)

Residential Tenancies Act, 2006, S.O Section 66(1)

66 (1) A landlord may give a tenant notice of termination of the tenancy if,

(a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and

(b) the act or omission occurs in the residential complex.

(2) A notice of termination under this section shall provide a termination date not earlier than the 10th day after the notice is given and shall set out the grounds for termination.

TSL-66654-15 (Re), 2016 CanLII 39866 (ON LTB)

16. It is uncontested that the rental unit is very cluttered with combustible materials, the Tenant uses multiple electric heaters to make the rental unit very hot and the Tenant is a heavy smoker. It is also uncontested that the Tenant keeps combustible items on his stove and that he uses his stove to cook. These facts demonstrate that the state of the rental unit presents a serious risk of fire. As for whether the Tenant left an electric heater on in close vicinity to water, the evidence from both the Landlord and the Tenant is hearsay on this point (hearsay is a statement made outside of the hearing room). However, the Landlord’s evidence comes from a person who has no reason to fabricate and therefore this evidence is more reliable. On the other hand, the Tenant does have a reason to fabricate. I therefore find, on a balance of probabilities, that the Tenant left an electric heater on and that it was found by the superintendent to be surrounded by water. This presents a significant risk of electrocution. Accordingly, based on this fact and all of the other evidence, I find, on a balance of probabilities, that the state of the rental unit poses a serious risk to the safety of the Tenant and to the safety of the other tenants in the building.

17. I am therefore satisfied that the Tenant has seriously impaired the safety of any person.

EAL-30005-13-SA (Re), 2013 CanLII 18254 (ON LTB)

4. The Tenant was angry at getting an eviction order and pleaded with the Landlord to preserve his tenancy on February 21. He threatened to set himself on fire. Later that same day, the fire department responded to a fire in the Tenant’s unit. The Tenant explained that he had fallen asleep in his chair at 5 pm while smoking a cigarette and his clothes had caught on fire. The fire department official told the security personnel that the fire was suspicious and possibly mischief related.

5. I believe on the balance of probabilities that the Tenant poses a serious risk to his neighbours and it would not be reasonable to provide him relief from eviction.

TSL-12789-11 (Re), 2011 CanLII 13414 (ON LTB)

8. This application is based on a notice of termination served on the Tenant pursuant to section 66 of the Residential Tenancies Act, 2006 (the ‘Act’). That section permits a landlord to give a tenant a notice of termination if an act or omission of the tenant seriously impairs the safety of another person, provided that the act or omission complained of occurs in the residential complex. This means that the Landlord must establish that the effect of the Tenants’ actions threatens the well being or physical integrity of another person to such a degree that termination of the tenancy is reasonable in order to ensure the safety of others. In other words, have the Tenants’ actions put someone at serious risk of harm? Not every risk of harm to another will meet the test, as the impairment of safety must be serious.

9. Verbal harassment and threats alone will rarely constitute a serious impairment of safety to another person. It may be a frightening experience, but unless there is evidence that a tenant has a clear intention to commit some form of physical assault, words are only words, and do not put people’s physical safety at risk. There was no evidence before me that the Tenant actually intended to physically harm the other resident. As the Tenant indicated at the hearing, the only person that the Tenant harmed was himself, which happened at a later date, and was not covered by the Notice of Termination.

10. The Tenant’s behaviour may be such that the other residents do not feel entirely safe around the Tenant, but the evidence presented was insufficient to show that the Tenant‘s conduct constituted a “serious” impairment of safety as required by the Act.

TSL-21449-11 (Re), 2011 CanLII 82573 (ON LTB)

1. This application is based on a notice of termination served on the Tenants pursuant to section 66 of the Residential Tenancies Act, 2006 (the ‘Act’). This section permits a landlord to give a tenant a notice of termination if an act or omission of the tenant, the tenant’s guest or other occupant of the rental unit seriously impairs the safety of another person, provided that the act or omission complained of occurs in the residential complex. This means that the Landlord must establish that the effect of the actions of the Tenants or their guests threatens the well being or physical integrity of another person to such a degree that termination of the tenancy is reasonable in order to ensure the safety of others. In other words, have the actions of the Tenants or their guests put someone at serious risk of physical harm? Not every risk of physical harm to another will meet the test, as the impairment of safety must be serious.

2. In this case the conduct as detailed on the notice of termination consisted of the Tenants giving refuge to two men, who were arrested at the Tenants’ rental unit by undercover police officers on October 19, 2011. The property manager was told by the police that one of the men was a “wanted felon, he was wanted for numerous break and enters with a weapon and an armed robbery and that he was even on the television in regards to his crimes”. The other man was his accomplice.

3. Pursuant to section 43(2) of the Act and the case of Ball v. Metro Capital Property and Lockhurst (December 19, 2002) a notice of termination must set out the particulars of the conduct which seriously impairs the safety of others in order for the Tenants know what case they need to meet.

4. The notice served on the Tenants does not indicate whether it was the Tenants’ conduct that impaired the safety of others in the rental unit, or whether the two men they were sheltering in the rental unit impaired the safety of others, or whether it was the presence of the two men in the rental unit that seriously impaired the safety of anyone in the residential complex. There was no mention of any physical altercation, or of any resistance by the Tenants or by the two men to the police arrest. The notice appears to be based solely on the presence of these two men in the Tenants’ rental unit. Had the police not attended at the residential complex, the Landlord would not have even known of the presence of the two men.

5. The Landlord’s representative argued that she had evidence that would persuade the Board that the conduct of the Tenants seriously impaired the safety of others in the residential complex. However, such conduct is not detailed in the notice. I am of the view that the notice must be valid on its face and not depend on testimony given at the hearing.

6. As such, I find that the notice does not meet the requirements of providing sufficient particulars and the notice on its face does not set out conduct of serious impairment of safety. The notice is void. Accordingly, the Landlord’s application must be dismissed.

TSL-63756-15 (Re), 2015 CanLII 77360 (ON LTB)

2. The evidence before me established that the Tenant and his guest engaged in a verbal and physical altercation in the hallway of the residential complex in the early morning of May 7, 2015. This caused a disruption, as other residents came out of their units to see what was going on. Police were called to the premises.

3. The police constable, who attended at the residential complex later on that day, testified that the fight appeared to have been “consensual”. He was not certain that anyone’s safety was jeopardized at the time. No charges were laid against the Tenant or his guest.

5. The only person with first-hand knowledge of the circumstances was the Tenant, who testified that he tried to stop his friend, who was drunk, from being “stupid” and attempted to escort him from the building. No injuries were sustained and no damage caused.

6. This application is based on a notice of termination which was served pursuant to section 66 of the Residential Tenancies Act, 2007 (the ‘Act’). That provision states that a landlord may give notice to terminate a tenancy if an act or omission of the tenant “seriously impairs or has seriously impaired the safety of any person”.

7. Section 66 does not state that any risk of harm or impairment of safety is sufficient to justify termination. Rather the section uses the qualifier “serious”. Have the Tenant’s actions, or the actions of his guest put someone at serious risk of physical harm? Not every risk of physical harm to another will meet the test, as the impairment of safety must be serious.

8. Based on the evidence before me, I am not satisfied that the Landlord met the burden of proof to establish that the Tenant or his guest seriously impaired the safety of a person in the residential complex. The evidence showed that the conduct of the Tenant and his guests was and continues to be disruptive; however, the Landlord chose to file an application based on serious impairment of safety rather than substantial interference.