Ordinary Cleanliness (LTB)

TSL-95041-18 (Re), 2018 CanLII 120857 (ON LTB)

1. The Landlord served the Tenant an N5 Notice of Termination on April 17, 2018 alleging that the Tenant has substantially interfered with the Landlord’s reasonable enjoyment or lawful rights because the Tenant has not kept his rental unit and its balcony in a clean and tidy condition. On that same date the Landlord also served an N7 Notice of Termination alleging that the Tenant has seriously impaired safety because the Tenant has not kept his rental unit and its balcony in a clean and tidy condition.

26. Section 64(3) provides that an N5 notice of termination is voided if the tenant complies with the requirements set out in the notice during the seven days following the service of the notice. In this case, the parties acknowledged that the N5 notice was not voided.

27. Again, the onus rests with the Landlord to prove on a balance of probabilities that the conduct of the Tenant has substantially interfered with the Landlord’s reasonable enjoyment or lawful rights and the onus includes making out a “substantial” interference. The Landlord has not met this onus.

28. The extent of the Landlord’s evidence was that she finds the apartment to be dirty and cluttered. She brought forward no complaints concerning smell or pest issues. She observes the floor to be dirty, but admits the parquet floors are approximately 50 years old, though were refinished prior to the tenancy starting approximately 13 years ago.

29. As written above in relation to safety, the evidence of the photographs presented shows the unit, from a worse state to improved states. Even when at its worst, the clutter is mostly on top of furniture, and appears to be the bags of shopping referenced by the Tenant, and the bags of laundry and items the Tenant stores in black garbage bags. There is no evidence in the photographs of pest infestations, or anything that appears to be refuse or rotting waste. In terms of the indications of extreme clutter such as are ordinarily presented, the unit shows none of the indications such as accumulations of spoiling food, piles of belongings that block movement around the unit, and excess garbage and debris.

It is ordered that:

1. The Landlord's application is dismissed

SWL-12511-18 (Re), 2018 CanLII 42816 (ON LTB)

Case Summary:

The Landlord proved, on a balance of probabilities, that by not properly disposing of garbage and recycling and not properly cleaning the rental unit, the Tenant has substantially interfered with the Landlord’s lawful rights, privileges or interests and has substantially interfered with the reasonable enjoyment of other residents. The Landlord did not prove the more serious allegation that the Tenant seriously impaired anyone’s safety, therefore the more serious remedy of an earlier, expedited termination of the tenancy is denied. I have exercised my discretion and denied the Landlord’s application to evict the Tenant on the condition that the Tenant clean up the rental unit on or before April 7, 2018, and keep it clean for a period of one year.

4. The Landlord's witness attended at the rental unit for a re-inspection on November 20, 2017 and took photos of the rental unit at that time. The photos were submitted as Exhibit # 2. The Tenant has very little furniture in the rental unit. The Landlord's witness testified the Tenant has a mattress and a computer table in the bedroom, and a coffee table and lamp in the living room. The Landlord's witness described the smell in the rental unit as “unbearable”.

5. The living room photos from the November 20, 2017 inspection show that there were stacks of pizza boxes that were approximately four feet high, as well as piles of garbage bags covering the floor and recycling such as plastic bottles and cans piled on the coffee table. In the dining room there was another four-foot high stack of pizza boxes, a large pile of empty 2-litre plastic bottles, and a hole in the wall that had been stuffed full of plastic material. In the bedroom there was a four-foot pile of loose garbage and plastic, as well as piles of garbage bags and more plastic recycling. The kitchen photos show that the counters and sink are stained and dirty, there are dirty dishes on the counter and in the sink, and some of the lower cabinet drawers have been removed and stacked up in a different area. The Landlord's witness described the stains as nicotine, grease and dirt, and said the odour was “pungent” in the kitchen. Finally, the photos of the bathroom show an overflowing garbage can, piles of garbage in the tub, and stains on the fixtures.

21. I find, on a balance of probabilities, that the state of the Tenant’s rental unit, specifically the piles of garbage and recycling and the odour emanating from the unit, has substantially interfered with both the Landlord’s lawful rights, privileges or interests and the reasonable enjoyment of the other residents in the residential complex.

22. The state of the Tenant’s rental unit has substantially interfered with the lawful rights, privileges and interests of the Landlord. The Tenant has an obligation under section 33 of the Act to maintain the rental unit in a state of “ordinary cleanliness”. The photos submitted by the Landlord show that the rental unit does not meet this standard. In addition, the state of the Tenant’s rental unit is preventing the Landlord from being able to meet its own obligation under section 20(1) of the Act, which sets out that a landlord is responsible for maintaining rental units in a good state of repair, fit for habitation, and in compliance with health, safety, housing and maintenance standards.

23. The state of the Tenant’s rental unit has also substantially interfered with the property manager’s and other residents’ reasonable enjoyment of the residential complex. The Landlord's witness provided direct evidence about the powerful and unpleasant odour inside and emanating out from the Tenant’s unit.

30. However, this is a long-standing tenancy of over eight years, and there was no evidence before me to suggest the cleanliness of the Tenant’s unit an issue that was brought to the Tenant’s attention prior to the inspection of the rental unit in November 2017. Once the issues were brought to the Tenant’s attention, the Tenant acknowledged he needed to clean the unit and asked for additional time to do so. This suggests to me that the Tenant understands that the condition of his rental unit is unacceptable and he knows he needs to address it. Despite the reservations of the Landlord’s Legal Representative, I find it would not be unfair to deny the Landlord’s application for eviction on the conditions that the Tenant remove all garbage and recycling from his rental unit in a relatively short amount of time, clean his rental unit, and maintain his rental unit in a state of ordinary cleanliness for one year such that no new complaints of odours from the rental unit are received by the Landlord.

31. This order contains all of the reasons for this matter, and no other reasons will issue.