Regular Interference vs. Substantial Interference (LTB)

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.