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.

CET-57953-16 (Re), 2016 CanLII 72148 (ON LTB)

1. It was undisputed that the Landlord installed a new gas furnace in the rental unit, in November 2014. As a result of this installation, the walls and ceiling surrounding the basement bathroom were removed and duct work was added throughout the unit. The walls to the bathroom in the basement were never restored and remain in a state of disrepair, with electrical wiring still exposed. Further, as a result of the addition of duct work throughout the rental unit there are holes in the walls and floor.

7. In the case of Toronto Community Housing Corp. v. Vlahovich (2010) O.J. No. 1463 the Ontario Divisional Court stated as follows:

In light of the one year limitation period in s. 29(2), the Board can only make a determination that a landlord has breached an obligation under s. 20(1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one year period [our emphasis].

8. It was uncontested that the Landlord was aware of the outstanding repair issues as a result of the furnace repair in November 2014. Therefore, I find that an abatement of rent is warranted in these circumstances. I can only consider an abatement of rent for the previous twelve months prior to filing the application being May 10, 2015 to present in accordance with subsection 29(2) of the Act.

9. The Tenants expected to be able to utilize the basement washroom and without it, there was only one bathroom in the rental unit. The Tenants submitted that there were a number of safety concerns with the duct work added throughout the rental unit; however they did not submit any supporting evidence regarding a breach of safety standards. Therefore, I find that the impact of the holes in the walls and floor to be mostly cosmetic in nature.

10. Given that the Tenants did not have the use of the basement washroom, and that the rental unit is in a state of disrepair with respect to holes in the walls and floors because of the addition of duct work, I find that the Tenants are entitled to an abatement of rent equal to 10% of their monthly rent of $1,450.00, being $145.00 for the period of May 10, 2015 to June 30, 2016 totaling $1,885.00.

TET-75459-16 (Re), 2017 CanLII 60474 (ON LTB)

7. There is no dispute between the parties regarding the facts of this disrepair issue. The site administrator and the Tenant discovered a large leak behind the wall in the second bedroom on September 15, 2016. The plumber who came in the next day to repair the leak had to remove large sections of the drywall to expose the pipe in the bedroom wall. The plumber also had to tear up what appears to be about a two foot long section of flooring to expose the underground pipes. The plumber’s actions resulted in very large holes in the wall and a large and dangerous hole in the floor at the entrance of the bedroom. The hole in the floor appears to be approximately 3 feet deep into the ground and is located in the bedroom the Tenant was using for her 2 year old son.

8. There is no dispute between the parties that these holes constitute breach of the Act and there is no dispute between the parties that the Landlord took too long to repair these holes.

9. The Landlord’s then superintendent was with the plumber when the holes were created and there is no dispute that he failed to respond properly and either cover the hole in the floor or properly follow up with the Tenant and the Landlord to address the obvious safety concern. The parties agree that the holes in the walls and the floor were created on September 16, 2016, and were not repaired until November 18, 2016.

10. Based on the evidence before me, and based on the agreement of the parties, I am satisfied that Landlord has failed to meet the Landlord's obligations under subsection 20(1) of the Act as the bedroom floor and wall in the Tenant’s unit was in disrepair.

11. The Tenant says that the Landlord’s actions during this delayed repair job also substantially interfered with her reasonable enjoyment of the unit. With the hole in her son’s bedroom floor and walls, the Tenant decided it was safer for the both of them to stay with her mother while they waited for the repairs to be complete.

12. However, while the Tenant was staying with her mother, she says there was a complete lack of communication from the Landlord regarding what to expect or when the repairs would be complete and this made the experience even worse for her.

13. The property manager explained at the hearing that, because the repair job cost over $1,200.00, the Landlord had in place a double-staged approval process which took several weeks for the Landlord’s staff to complete. This process was lengthened even further because the second approver went on vacation for at least one week and then took several days to catch up on her workload once she returned.

14. The property manager’s explanation is valid, but the parties agree that none of this process was ever explained or communicated to the Tenant at any time during the 2 months she was waiting for the repairs. This meant that the Tenant went weeks without knowing what was happening, who was processing her requests or when she could expect the repairs to be completed. She was not able to tell her son when they could go home and she was not able to tell her mother when they would be leaving. Without any knowledge of what was happening, the Tenant was forced to get the city by-law officer involved and call numerous social services and departments for assistance. The Tenant called her insurance company, the public health department, the social services hotline and the city by-law office all in an attempt to get answers and all while she was living away from her home. All of the Tenant’s efforts could have been avoided if one of the Landlord’s staff simply called her to explain the approval process that was taking place behind the scenes.

15. Based on the evidence before me, I am satisfied that the Landlord’s lack of communication with the Tenant substantially interfered with her reasonable enjoyment of the unit and I am satisfied that the Landlord has failed to meet the Landlord’s obligations under section 22 of the Act.

16. The remedy for this disrepair issue and this substantial interference issue will be discussed below.

23. The Tenant is requesting an abatement of rent in the amount for 100% for 3 months as compensation for disrepair to the living room floor, and the holes in the walls and floor of her son’s bedroom and for the substantial interference to her reasonable enjoyment of the unit.

24. In order to award an appropriate abatement, I must consider the impact on the Tenant of these areas of disrepair and of the Landlord’s actions in failing to communicate with the Tenant.

25. Regarding the living room floor, the evidence, which includes the Tenant’s testimony, her pictures and the Landlord’s quote for the repair, all indicate that the area of disrepair was limited to one or two pieces of hardwood floor in the living room. For the average tenant, the impact of this small area of lifted flooring would be minimal and, other than the length of time to repair, there was nothing in the Tenant’s testimony to suggest that she or her son were unusually impacted by this small area of living room floor.

26. As a result of the lengthy repair time, but the minimal impact to the Tenant, and based on my knowledge of similar cases, I am satisfied that a nominal amount of $100.00 should compensate the Tenant for the living room disrepair.

27. The impact of the holes in the second bedroom had a significant impact on the Tenant and her young son. The large hole was exposed and created a significant safety concern for the Tenant; even one moment of curiosity by her young son opening his bedroom door could result in him falling in the hole and severely injuring himself.

28. The holes in the walls of his bedroom also created a significant safety concern and the Tenant could not reasonably have been expected to allow her son to enter his room, let alone spend his nights sleeping alone in that room.

29. As a result, the Tenant was forced to have her son stay with her mom until the repairs were completed. This also meant that the Tenant herself was rarely able to come home because she was constantly staying with her mom to look after her son. Both the Tenant and her mother work outside the home and they both spent almost three months co-ordinating around each other’s work schedules to make sure they were caring for the Tenant’s son. In addition, the stress of going back and forth to the rental unit to try to resolve the repair issue caused the Tenant a great deal of anxiety and pressure.

30. It should be noted at this point that the Tenant did not move back into the unit until December 22, 2016. However, the Tenant waited to move back in for reasons unrelated to the applications before me. As a result, any abatement that is awarded will end on November 18, 2016, which is the day that all of the repairs were completed.

31. Both of the representatives made lengthy submissions at the hearing regarding the appropriate quantum of remedy to award in these circumstances. In particular, the representatives made submissions regarding when the abatement should begin and whether I should consider any efforts made by the Tenant to mitigate her damages pursuant to section 16 of the Act. I will address both of those issues in turn.

38. Once the Tenant chose to leave the unit, she did not stay in an expensive hotel, she did not eat at a restaurant for every meal, she did not claim extra transportation costs from her location to her job. All of these examples are ways in which the Tenant mitigated her losses and kept her expenses to a minimum in light of her choice to leave the rental unit. The Board does not punish tenants by giving them less abatement if they reasonably choose to leave their unit during a disrepair situation.

39. Based on the evidence before me, I am satisfied that the Tenant chose to remove her son from the rental unit and live with her mother as a direct result of the level of disrepair in her son’s bedroom, the lengthy delay in completing the repair and the Landlord’s lack of communication regarding when the floor would be fixed. I am not prepared to say her behaviour in doing so was unreasonable and she failed to mitigate her damages. If the Landlord wanted to make the unit safe enough for her to remain it was open to the Landlord to make an offer to put a child lock on the door or take other steps to make the Tenant more comfortable about staying in the unit.

40. Even though the Tenant made a reasonable decision to leave, the concept of abatement is about the loss of value due to the disrepair. As the Tenant lost the use of one room and there are 5 rooms in the rental unit, this means that she lost the value of 20% of the rental unit and is entitled to compensation for that 20%. As a result, the Tenant should be awarded an abatement of rent in the amount of 20% from September 16, 2016, to November 18, 2016. As the monthly rent is $1,690.00 the abatement is calculated as follows:

($1,690.00 x 12 ÷ 365 days/year) x 20% x 63 days = $700.06.