RTA section 20 says:
"A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards."
1)
Ontario Regulation 516/06 provides a Schedule with tables of useful life of work done or things purchased, which is very important for Above the Guideline Rent Increases (AGI) under RTA section 126. And if the tenant who is subject to an AGI order continues to occupy the rental unit when the weighted useful life has ended, the landlord must decrease the rent due to the elapse of the weighted useful life period for capital expenditures, by the percentage by which the landlord increased the rent. (See LTB Interpretation Guideline 14, RTA section 129 and O. Reg. 516/06 section 38 for details.)
2)
However, this Schedule of useful life cannot be relied upon for proving landlord's breach of maintenance obligations under RTA section 20 for T6 (tenant application about maintenance) purposes. That is, just because an item is old does not automatically mean that it is not "in a good state of repair", and vice versa (i.e. a landlord still has a duty to repair or replace an item that is not in a good state of repair, even if that item is brand new). See examples below: Puterbough v. Canada Public Works and Government Services, 2007 CarswellOnt 2222 (at para. 108) and a few LTB rulings cited in this post (rulings 1 - 6).
3)
With that said, the Schedule of useful life from O. Reg. 516/06 can be quite important for calculation of what the tenant should have to pay IF the Board determines that the tenant (or his occupants, guests, etc) caused undue damage willfully or negligently under RTA section 34. See examples below (rulings 7 - 20).
4)
So does this mean that if an item is functional but is past its useful life, the tenant could destroy or remove it without any consequences, and then even file a T6 application about maintenance to get a new item?
Or can adjudicators deviate from the Schedule of useful life in O. Reg. 516/06?
CEL-71015-17 (Re), 2017 CanLII 93872 (ON LTB), <https://canlii.ca/t/hq1v8> seems to show that deviation is possible when it is fair, because had the tenant not removed the item, the landlord could have waited a few more years before having to replace it.
"34. In typical claims of undue damage by tenants, particularly those relating to damaged carpets, Ontario Regulation 516/06 provides guidance that the useful life of carpet is about 10 years, which means that depreciation is typically entered into the calculation for compensation or reimbursement when it is ordered.35. The reason depreciation is calculated in orders is to address the issue of betterment that might arguably apply when compensation is awarded for something new that replaces something damaged. The purpose of compensation is to put landlords in the same position they were before the undue damage occurred and not to make them better off.36. Here, I note that the rental unit carpet is ten years old, which by Ontario Regulation 516/06, puts the carpet at the very end of its useful life. By applying depreciation as suggested by the Regulation, that would place the value of the carpet at no value at all, which I reject as incorrect and unfair.37. Had the damage not occurred, I am satisfied from the evidence produced that the Landlords could have waited several more years before having to replace the existing carpet. I accept the Landlords’ testimony and evidence that they have taken good care of the carpet over the years. As such, I believe a depreciation of 25% is much more correct and fair to apply in the case at bar.38. Consequently, I am going to order that $4,200.00 be reimbursed to the Landlords by the Tenant, which uses a depreciation value of 25%. The Tenant shall have two months from the date of this order to pay the full value of compensation to the Landlords in order for the tenancy to continue."
"33. In his submissions Mr. Ellis referenced the chart of lifespans enacted by regulation under the Residential Tenancies Act, 2006, as a guide for normal lifespans. The Schedule to O.Reg. 516/06, lists in Table 8, s. 19, the useful life of interior paint as 10 years. That Schedule is not determinative for purposes of civil liability because it is a guide only for the purpose of determining landlords’ requests for rent increases based on capital expenditures. But is has been considered in these situations – not as a substitute for evidence but merely as a rough guide or comparator: Boardwalk General Partnership v. Ali, [2009] O.J. No. 369 (Sm. Cl. Ct.), at paras. 11-14; Stamm Investments Ltd. v. Contant, [2016] O.J. No. 353 (Sm. Cl. Ct.), at paras. 18-19."
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Let's look at some examples:
I. O. Reg. 516/06 Schedule of useful life is not really relevant for T6 purposes (tenants' applications about disrepair)
1) Puterbough v. Canada Public Works and Government Services, 2007 CarswellOnt 2222, [2007] O.J. No. 748, 55 R.P.R. (4th) 189 (unreported decision of Divisional Court, February 12, 2007)
"108 There any many reasons why rental premises may be in poor condition aside from the landlord's neglect of its duty to maintain them in a good state of repair. Those reasons include the age of the unit, the materials used to construct it, the method of construction, the way a tenant uses the unit and the failure of a tenant to report deficiencies in a timely fashion. It is an error of law for the Tribunal to decide that a landlord is in breach of its duty to maintain and repair simply because, at the time of the hearing, many of the major elements in the home have arrived at the end of their useful lifespan and have not been replaced by the landlord. A landlord is entitled to wait until a major element has reached the end of its normal lifespan before replacing it; provided it remains functional while the premises are occupied by a tenant. In the case at hand, as of the date of the hearing, all of the major elements requiring replacement were still functional. The concern expressed by the inspector was that they would not continue to function for long.
109 Section 53(1) of the Act makes it clear that, when faced with a rental unit that requires major capital expenditures if it is to continue as a rental unit, the landlord may consider demolition, converting the use for a purpose other than residential, or undertaking extensive repairs or renovations requiring possession of the premises. In this case, Public Works was faced with premises that required in the immediate future a new roof, soffits, fascia, furnace, oil tank, kitchen, bathroom and possibly septic field because these important elements in the home had come to the end of their normal lifespan. The anticipated cost of this work was $60,000, in addition to the cost of mould remediation and the provision of water. The inclusion of s. 53(1) in the Act indicates the intention of the legislature to afford a landlord, faced with high projected maintenance costs and a low rate of return, the ability to make a rational economic decision about the future of the rental premises. Interpreting s. 84(2)(a) in such a way as to require a landlord to replace all major elements that have come to the end of their useful lives before the landlord can regain possession of the premises to pursue demolition or a change of use of the premises, would be contrary to that intention and would render s. 53(1) meaningless. Moreover it would produce an absurd result. It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. [Rizzo v. Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S. C. C.) at para. 27. No. 2]"
"[84] The Tenant did not report any poor cooling or spoiled food in his own evidence. The Tenant did not prove, on a balance of probabilities, that the refrigerator no longer functions for its intended purpose.
[85] The Landlord has not breached her maintenance obligations simply because an element of the rental unit is old, or has reached the end of its useful life, provided the item still functions for its intended purpose (Puterbough v. Canada (Public Works & Government Services), [2007] O.J. No. 748 (Div. Ct.) at paragraph 108). I do not find that the Landlord breached her maintenance obligations under subsection 20(1) of the Act with respect to the refrigerator in the rental unit."
"Kitchen floor
[20] The kitchen floor linoleum is decades old and showing signs of wear, including some dents and scuffs. The photograph submitted by the Tenant did not show more serious defects such as holes or rips, and as such, I find there was insufficient evidence to establish more than wear. Although the flooring is likely at the end of its useful life, that fact is not sufficient to establish the flooring is in disrepair contrary to subsection 20(1) of the Act. From the photograph, the flooring appears does not appear to be unfit for its intended purpose. The Tenant was of the view that the flooring is too old to get it clean enough to meet his standards, but that is not the same as being in disrepair. A coat of floor wax would likely improve the floor’s appearance. I am not satisfied, on a balance of probabilities, that the kitchen floor is in disrepair contrary to subsection 20(1) of the Act."
"2. The Tenant’s primary complaint in this application is that the unit’s carpets need replacing. She asks that the Landlord be ordered to replace them, and also seeks a rent abatement to compensate her for having to live with the worn-out carpets. The Landlord denies that the carpets need replacing.
3. For the reasons that follow, on a balance of probabilities I find that the carpets need to be replaced. The Landlord will be ordered to do so. The Tenant did not clearly inform the Landlord of the problem until February 10, 2018, so a rent abatement will be awarded from that date to the present.
4. The Tenant also complains about an old mattress. For the reasons that follow, she has not proved that claim.
Does the carpet need replacing?
5. The Tenant testified that for several years, she has had problems with dust rising from the carpet throughout the rental unit. The dust makes the air stuffy, which affects the Tenant’s breathing. She has twice had the carpet professionally shampooed, but the cleaners told her that because the carpet was so old, shampooing would not help much and it needed to be replaced.
6. The Tenant also testified that she spoke with the condo building staff, and was told that the building was 14 years old and the carpet had not been replaced during that time.
7. There are significant problems with the Tenant’s evidence. The carpet cleaners’ opinion is hearsay, and I give it little weight. The Tenant did not provide any photos of the carpet. There was no evidence to establish that the Tenant’s breathing problems were caused by dust from the carpet.
8. However, the Tenant’s evidence is nonetheless stronger than the Landlord’s. The Landlord did not testify at all. He only provided a letter stating that on March 1, 2018, while in the unit for a different reason, he looked at the carpet and saw that it “was in good shape.” The letter also stated that in the past, carpets have lasted him for more than 25 years.
9. Not only is the Landlord’s letter hearsay, it also does not set out any basis for his opinion that the carpet was in good shape. It does not assist me in determining whether excessive dust is rising from the carpet. It does not state that the Landlord took any steps to inspect the carpet. I give the letter no weight.
10. I would also note that, in certain other proceedings before the Board, the regulations to the Residential Tenancies Act, 2006 (the ‘RTA’), O. Reg. 516/06, deem the useful life of a carpet to be 10 years. Those regulations do not apply in this proceeding, but they are nonetheless helpful in considering whether, after 14 years, a carpet is likely to need replacing.
11. On a balance of probabilities, the Tenant has proved that the carpet has fallen below acceptable maintenance standards, and needs to be replaced. I say that because the carpet is old; the Tenant is having breathing problems that could reasonably be caused by an old carpet; and the Tenant was given an opinion from a carpet cleaning professional that the carpet needed to be replaced. None of those pieces of evidence is very strong, but taken together they are sufficient to prove the Tenant’s claim given that the Landlord seems to have made no meaningful effort to inspect the carpet’s condition.
12. The Landlord will be ordered to replace the carpet.
Did the Landlord know about the condition of the carpet?
13. The Tenant also asks that her rent be abated during the period that her breathing was impacted by the carpet dust. The Landlord is only liable for periods during which he knew or ought to have known that the carpet needed replacing.
14. The evidence does not establish that the Landlord knew or ought to have known about the carpet before February 10, 2018. The Tenant mentioned the carpet to the Landlord once before that date, but only said that “the condition of the carpets could be better as due to the wear and tear of the residents for almost 4 years, it could use a professional shampoo job. If this is something the landlord would like to invest in, do let us know.” This was too vague to inform the Landlord that the carpet’s condition might have fallen below acceptable maintenance standards.
15. I find that the Landlord learned about the condition of the carpets on February 10, 2018. On that date, the Tenant sent an email which stated “the carpet has been in place for over 10 years and is now a health hazard. I have developed allergies to them – I’m constantly sneezing with stuffed sinuses, and my roommate has major issues breathing.”
16. This email was clearly sufficient to alert the Landlord that he needed to inspect the carpet.
17. A rent abatement of 10% will be awarded for February 10, 2018 to the present, as that is the period during which the Landlord knew about the problem and failed to address it.
[...]
It is ordered that:
1. On or before May 15, 2018, the Landlord shall replace the carpets throughout the rental unit."
"Maintenance (T6 application)
[6] Subsection 20(1) of the Act provides that a landlord is responsible for providing and maintaining a residential complex, and the rental units in it, in a good state of repair and fit for habitation, and for complying with health, safety, housing and maintenance standards.
[7] Subsection 20(1) does not impose an absolute liability on a landlord, which means a landlord is not automatically liable for everything that happens or every loss a tenant incurs when maintenance problems happen.
[8] A landlord’s liability is limited by factors such as the knowledge of the landlord (foreseeability), the tenant’s responsibility for cleanliness, the tenant’s responsibility to repair the damage they cause and the tenant’s responsibility to take reasonable steps to minimize their losses (mitigation).
[9] Also, the Landlords have not breached their maintenance obligations simply because an element of the rental unit is old, or has reached the end of its useful life, provided the item still functions for its intended purpose (Puterbough v. Canada (Public Works & Government Services), [2007] O.J. No. 748 (Div. Ct.) at paragraph 108).
[10] The Tenants acknowledged the rental unit had a fresh, professionally applied paint job before they moved in. I also accept the testimony of the Landlord, AB, that the carpet was new and installed shortly before the Tenants moved in 18 years ago. The Tenants speculated that the carpet was older because of its old-fashioned style, but that was pure speculation. The incoming inspection report showed no issues with the paint or carpet.
[11] The Tenant, RN, acknowledged that the Landlord, AB, has high standards for quality. Considering RN’s testimony that the original carpet still looks sound, with no fraying or worn spots, it made sense to me that the Landlord probably selected the carpet for quality and durability over fashion and style.
[12] In March 2016 the Tenants negotiated with the Landlord, AB, because the Tenants wanted some renovations done to refresh the rental unit, including painting and replacing the flooring, and they knew AB had standards he wanted to maintain. The Landlord, AB, obtained estimates, made a written renovation plan and worked out the costs that the Landlords would bear, and also the costs the Tenants would be expected to bear because some of the work was to repair damage caused by the Tenants, and because the desired work went beyond repairs that the Landlords were obligated to carry out.
[13] At the Tenants’ request, the renovations were delayed while one of the Tenants, SN, recovered from an injury. In June 2016, the Tenant, SN, attempted to recommence the renovation discussions with AB, but when AB appeared too busy to discuss, and some friends of the Tenants’ daughter were willing to help with the work, the Tenants went ahead with some painting and carpet replacement work at their own expense. The Tenants did not notify the Landlord, AB, before commencing the work, and they did not obtain his input about the materials used.
[14] The Tenants are admitted heavy smokers and they have damaged the rental unit by smoking inside and depositing yellow nicotine stains on the ceiling, walls, kitchen cabinets and on the white vinyl frames of new windows installed during the tenancy. The Tenants admitted they are responsible for cleaning the stains, but at the same time, the Tenants wanted the Landlords to incur the costs of re-painting the unit to address the staining the Tenants caused. The Landlords have no obligation to do so, because section 34 of the Act makes the Tenants responsible for repairing undue damage they caused.
[15] The Tenants also damaged the rental unit by having rooms painted by a friend in 2008. One coat of inferior quality paint was sloppily applied, without the Landlords’ consent. The Tenant, RN, acknowledged the 2008 paint job was inconsistent with the Landlords’ quality standards, and needed to be corrected. The Landlords had no obligation to pay for the correction because section 34 of the Act makes the Tenants responsible for repairing undue damage they caused.
[16] On their own initiative, the Tenants had parts of the unit re-painted in July 2016. The painting costs arose directly from damage caused by the Tenants, and the Tenants must bear those costs. The Tenants also had no receipt to prove the amount they paid for the painting. The Tenants’ request for an order requiring the Landlords to pay for the painting work is denied.
[17] The Tenants’ request for an order requiring the Landlord to pay for the Tenants’ carpet replacement costs must also be denied.
[18] On their own initiative, the Tenants spent $1,665.73 to buy the carpet of their choice and have it installed in the living room. According to the Tenants, the original carpet appeared to be sound, with no fraying or visible wear, but it was old and had a foul odour that was not eradicated by steam cleaning. When the Tenants had the original carpet removed in July 2016, they found that the carpet underside and underpad had black stains which they believed to be mould.
[19] The Landlord, AB, testified that he could not tell, based on the pictures, what happened to the carpet, but if something was spilled on the carpet, that would be the outcome. The Tenants’ photographs supported AB’s theory. The black stains in the middle of the carpet were large and circular, surrounded by a halo, and with a lighter impression of the stain on the underpad below, which would be consistent with liquid coming from above. There were also stains in front of the balcony door.
[20] The apartment is on the second floor, with concrete floor below, so leaking from below was unlikely.
[21] There was no mention, in the evidence, of any ceiling leak or patio door leak or other disrepair event that would have caused the carpet damage. It was also not disclosed to me whether the Tenants have pets, but the staining would be consistent with moisture saturation damage from, for example, pet urine, spills or improper steam cleaning.
[22] Since the Tenants did not prove, on a balance of probabilities, that the carpet damage was caused by disrepair in the rental unit, I find the Tenants most likely caused the stains and odour themselves by spilling liquids on the carpet. Section 34 of the Act makes the Tenants responsible for undue damage they caused, and they cannot require the Landlords to pay for its repair. The Tenants must bear the costs they have incurred to replace the living room carpet.
Other repair orders requested by the Tenants
[23] The Tenant, SN, speculated that there is probably dust and mould behind the kitchen counter and cabinets but the other Tenant, RN, could not identify a problem with the counter and cabinets. The Tenants did not prove the counter and cabinets were in disrepair on a balance of probabilities. Accordingly, no repair order is warranted.
[24] The Tenants also wanted an order requiring the Landlords to replace the stove in the rental unit. The stove still functions as intended, but the Tenants complained that it is old. Just because the stove is old, does not mean it is in disrepair contrary to subsection 20(1) of the Act. Furthermore, the Landlord, AB, testified that the last time he inspected the stove, there was a quarter-inch thick of cooking debris in the oven, which means the Tenants have made heavy use of the oven but not met their cleanliness obligation under section 33 of the Act. The stove is not in disrepair and does not require replacement.
[25] The Tenants also wanted an order requiring the Landlord to repair the exhaust fan above the stove. The Landlord, AB, testified, and I accept, that the Tenants do heavy amounts of deep frying, which has coated the fan in a thick layer of grease and as a result, the fan has seized. Although AB has dismantled and cleaned the fan in the past, the Tenants have caused the damage and the cleaning and repair are the Tenants’ responsibility. The Landlord was willing to complete the repair at the Tenants’ expense, but the Tenant, RN, refuses to pay. Since the Tenants caused the damage, but refuse to pay for its repair, they are not entitled to a repair order.
[26] The Tenants also wanted an order requiring the Landlords to replace the bedroom carpet because it is old. The Tenant, RN, confirmed the carpet is not worn or fraying, it does not have an odour, it still functions as intended, but it is a dated style. I find, on a balance of probabilities, that the bedroom carpet is not in disrepair and does not require replacement.
[27] The Tenants requested an order requiring the Landlords to replace the bathroom heater because the Tenant, SN, testified that it has not worked since the Tenants moved in. However, SN admitted in her testimony that she never complained to the Landlords about the heater. SN then qualified that testimony to say she could not prove that she complained because she never complained in writing. Since the Tenants did not prove they informed the Landlords about the heater problem before filing the application, I find the Landlords were not given a reasonable opportunity to address the problem and the application to the Board was premature. The Tenants’ request for a repair order is, accordingly, denied.
[28] The Tenants also wanted an order requiring the Landlords to repair the bathroom plumbing. The Tenants did not describe the plumbing problem in the application, but at the hearing, the Tenant, SN, said she thought the toilet may be leaking. The alleged toilet problem was not described with enough detail to justify a repair order.
[29] At the hearing, the Tenant, RN, wanted an order requiring the Landlords to repair the bathroom faucet, which is leaking. The Landlord, AB, testified, and I accept, that he replaced the faucet four times in 18 years, most recently in 2015, which was necessary because the Tenants did not properly clean the hard water build-up. Over time, the accumulated minerals eat away the finish and corrode the faucet, and that was evident on the faucet removed in 2015, which the Landlord brought to the hearing for my inspection. Corrosion inside the faucet would be outside the Tenants’ control, but the exposed surface, which the Tenants would be expected to clean, was deeply corroded.
[30] The Landlord, AB, also brought a copy of his repair invoice from 2006, in which the contractor noted that he had to soak the faucet in CLR cleaner because it was coated with soap scum and lime. At that time, the Landlords incurred costs to do cleaning that was the Tenants’ responsibility.
[31] The Landlord also brought photographs of the bathroom from 2015, which showed rust deposits in the toilet and hard water stains in the bathtub, all being hard water deposits not properly cleaned by the Tenants over the years. Cleaning products for common hard water deposits such as calcium, line and rust are readily available.
[32] The Tenant, RN, admitted he did not report any leaking to the Landlord, AB, after the bathroom faucet was replaced in 2015 because he did not want to be asked to pay for the repair. The difficulty is that if the Landlord is not notified about the problem, then he has not been given a reasonable opportunity to diagnose the problem and complete the repair, and an application to the Board is premature. The Tenants’ request for a repair order is, accordingly, denied."
"Carpet
11. The carpet was newly installed in the living room, dining room, closets, hallway and bedrooms on June 24, 2007. As set out in the Schedule to O. Reg. 516/06, the useful life of ensuite carpet is 10 years.
12. Although the carpet was only three years old when the Tenant moved in, the Landlord replaced the carpet in the living room and hallway on October 25, 2010 because of odours from the previous tenant as reported on the addendum to the incoming inspection report. The Landlord also replaced the dining room carpet with linoleum. The Landlord Agent, OH, authorized the replacement. The Landlord did not replace the bedroom carpet because OH found no issue there.
13. The replacement carpet came from a bulk purchase and its specifications included “10 year quality assurance” with stain and soil resistance and a durability rating of 3.25 for normal traffic durability. The bulk carpet was selected by the Landlord’s warehouse supervisor in Alberta and shipped from Alberta in a large roll and used in all of the Landlord’s properties Canada-wide.
14. The Tenant claimed the replacement carpet and installation were defective, and done without a necessary transition strip between the living room and dining room, and as a result, the carpet has been fraying and running since at least 2012. The Tenant also gave evidence that her vacuum cleaner caught the berber loops and seams, which created runs and gaps that worsened over time. The Tenant also has a small dog in the unit but she denied that her dog damaged the carpet. From the photographs it was not possible to determine the cause of the runs, fraying and threadbare patches; it was equally likely that the Tenant’s vacuum and/or dog contributed to the problem as it was that the carpet was defective.
15. The carpet was not in a good state of repair as required by subsection 20(1) of the Act.
16. Since the cause of the disrepair could not be determined, I find that the Landlord acted reasonably by taking responsibility for repairing the carpet.
17. The Tenant could not prove what date she first complained about the carpet because she did not complain in writing or make notes of her conversations with the Landlord Agents, and she did not remember the dates. Therefore, I accept the Landlord’s written customer record that the Tenant first informed the Landlord about an issue with the carpet on December 8, 2014.
[...]
Linoleum
37. The linoleum or vinyl flooring was newly installed in the kitchen, entrance and bathroom on July 3, 2008. Linoleum was installed in the dining room on October 25, 2010. As set out in the Schedule to O. Reg. 516/06, the useful life of linoleum flooring is 10 years.
38. The Tenant complained that the linoleum flooring was installed over old flooring that went a few inches up the wall in place of baseboards, and the edges of the new linoleum were left unsecured, to curl against the wall, instead of being trimmed, glued or covered with a baseboard. I agree with the Tenant that the flooring installation was not finished properly.
39. Edges of vinyl flooring are prone to curling, and typically need to be secured with a piece of molding (for example, quarter round). In the rental unit, the unsecured edges of the flooring were lifting away from the base of the walls, under the heating register, bathroom vanity and in the kitchen, and looked unfinished and sloppy. Because its edges were not secure, the flooring was not in a good state of repair as required by subsection 20(1) of the Act.
40. Since the Tenant did not remember dates of her complaints, I find the linoleum was first mentioned in a casual way in the Tenant’s email to SL dated March 3, 2015, and was specifically brought to TG’s attention when he inspected the rental unit on April 7, 2015.
41. At the hearing, the Landlord Agent, OH, looked at the Tenant’s photographs and said it would be an easy fix for a contractor to install a “kick plate” or baseboard to secure the flooring at the base of the walls and under the cabinets.
42. The Landlord scheduled the baseboard installation for August 31, 2015 and gave a proper notice for entry, but upon receiving the notice on August 27, 2015, the occupant GD, acting as agent for the Tenant, notified the Landlord Agent, SL, that the Tenant would not permit any further repair work in the rental unit until the Board had resolved her applications. The Landlord is still willing to do the work when the Tenant is ready.
43. The linoleum issues were limited to non-traffic areas and were too minor to warrant an abatement of rent. The only appropriate remedy would have been a repair order, but since the Tenant acted unreasonably by cancelling the repair scheduled by the Landlord, thereby depriving the Landlord of the opportunity to complete the repair, I find it would be unfair to issue that order.
Paint
44. The walls and trim in the unit were freshly painted on August 30, 2010, before the Tenant moved in. This work was called a “touch-up” in the Landlord’s computer system so it could be assigned to the Landlord’s maintenance staff instead of scheduling an outside contractor. At the time, the ceiling was not painted but had some paint marks as though the painter had cleaned his roller by wiping the excess white paint onto the ceiling. As set out in the Schedule to O. Reg. 516/06, the useful life of ensuite paint is 10 years.
45. The Tenant’s photograph showed the paint chipped on a corner of the wall, and since the problem was not noted on the incoming inspection report or addendum, I find it most likely happened when the Tenant moving her furniture in or around the unit. In any event, the problem was cosmetic and too minor to constitute disrepair.
46. The paint may not have been to the Tenant’s liking but it was not in disrepair or in contravention of a health, safety, housing or maintenance standard contrary to subsection 20(1) of the Act. When the Tenant notified the Landlord in 2015 that she wanted to paint the unit, the Landlord offered to give her free paint in the same colours that the Landlord uses in the building. The Landlord supplied ceiling paint and trim paint, and the Tenant elected to purchase her own wall paint in the colour(s) that she prefers. The Landlord acted reasonably throughout and the Tenant did not prove any grounds for an abatement of rent or other remedy.
Ceiling patches
47. The occupant, GD, gave evidence that the Landlord patched the ceiling in three locations and hired a contractor to repair the stucco but the contractor used drywall mud instead of the proper material and the patches were very obvious. I find this was a cosmetic issue, not a contravention of subsection 20(1) of the Act. It is my understanding from the evidence that the occupant, GD, has re-plastered one section of the ceiling to the Tenant’s liking.
Refrigerator
48. The Landlord replaced the refrigerator with a new one on July 25, 2013 because the old one was in disrepair. The Landlord does not purchase appliances for individual units but makes all of its purchases in bulk from a furniture retailer and brings over appliances from a warehouse as needed. The Landlord purchases 15-cubic-foot refrigerators and puts the same-sized refrigerator in all of the units, regardless of the unit’s size or number of bedrooms.
49. However, the Tenant and occupant, GD, testified that their new refrigerator is significantly smaller and of lesser quality than the old one, and they believe that other tenants have larger, better refrigerators that reach right up to the bottom of their overhead cabinets. The Tenant did not prove there was any difference in interior capacity between the refrigerators and in any event, that would not be an issue of maintenance or repair.
50. The Tenant complained that in the refrigerator, the bottom shelf has a cracked front edge and bends under the weight of food, and as a result, the crisper drawers are hard to close. The assessment of the Landlord Agent, TG, was that the Tenants are overloading the fridge with heavy items on the bottom shelf and in the door, and this conduct has damaged the refrigerator. The Tenant opposed that view and argued the refrigerator is simply too small to accommodate three adults. The Tenant’s photographs showed the shelf bending under a normal load of food. Since the bottom shelf appeared to be a flimsy plastic material and the Landlord’s repair records showed a similar problem with the old refrigerator when the Tenant moved in, I find that the problem must likely results from the quality of refrigerator that the Landlord has chosen to put in the unit. The refrigerator is not in a good state of repair as required by subsection 20(1) of the Act.
51. Since the Tenant did not remember dates of complaints, I accept the evidence of the Landlord Agent, TG, that Landlord was first informed about a problem with the refrigerator during his inspection of the unit on April 7, 2015.
52. The Landlord scheduled the repair for August 31, 2015 and gave a proper notice for entry, but upon receiving the notice on August 27, 2015, the occupant GD, acting as agent for the Tenant, notified the Landlord Agent, SL, that the Tenant would not permit any further repair work in the rental unit until the Board had resolved her applications. The Landlord is still willing to do the work when the Tenant is ready.
53. The problem with the refrigerator shelf is too minor to warrant an abatement of rent. The only appropriate remedy would have been a repair order, but since the Tenant acted unreasonably by cancelling the repair scheduled by the Landlord, thereby depriving the Landlord of the opportunity to complete the repair, I find it would be unfair to issue that order.
Counter top
54. The kitchen counter top was installed on August 28, 2000. It is 15 years old. As set out in the Schedule to O. Reg. 516/06, the useful life of kitchen counters is 25 years.
55. When the Landlord Agent and former maintenance worker, BM, installed the dishwasher, he erred and put a screw up through the counter top, leaving a small bump and hole. The Tenant also complained that some of the counter’s edges have worn off due to normal wear and tear.
56. Since the Tenant did not remember dates of complaints, I accept the evidence of the Landlord Agent, TG, the Tenant and/or the occupant, GD, first complained about the counter top during TG’s inspection of the unit on April 7, 2015.
57. The issues with the counter are too minor to constitute disrepair contrary to subsection 20(1) of the Act. The counter is not perfect but it still functions for its intended purpose and no abatement of rent or other remedy is warranted.
Kitchen cupboards
58. The kitchen cupboards were installed before August 28, 2000, the date the countertop was installed, which means the cupboards are at least. 15 years old. As set out in the Schedule to O. Reg. 516/06, the useful life of kitchen cupboards is 25 years.
59. The Tenant and the occupant, GD, gave evidence that the veneer faces are peeling off the front of the lower shelves, and the pressboard underneath appears to be rotting. According to the Tenant and GD, this deterioration happened because the dishwasher was not plumbed properly and kept creating floods until the Landlord brought in a qualified plumber who fixed the angle of the drain.
60. Since the Tenant did not remember dates of complaints, I accept the evidence of the Landlord Agent, TG, that the Landlord was first informed about an issue with the cupboards during his inspection of the unit on April 7, 2015.
61. The cupboard shelves still function for their intended purpose, and the problem described by the Tenant and shown in her photographs was too minor to constitute disrepair contrary to subsection 20(1) of the Act. This issue does not warrant an abatement of rent or other remedy."
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II. O. Reg. 516/06 Schedule of useful life is relevant for N5 / N7 (L2) purposes (landlords' applications about undue damage)
"Carpet
15. The Landlord breached its obligation pursuant to section 20 by failing to provide carpet in the front entrance and hallway area and one of the bedrooms in a good state of repair.
16. The photos of the carpet submitted by the Tenants show that it is significantly worn and torn in some areas. In one area, the carpet transitions to another type of flooring and the edge is fraying and a trip hazard.
17. SD said that the Tenants caused excessive wear and tear on the carpet by storing tools and tires and heavy tile boxes in the unit. The Landlord was unsure of the age of the carpet. The useful life schedule under Ontario Regulation 516/06 of the Act sets out a useful life of 10 years for carpet. The Tenants have lived in the unit for almost seven and one half years. It is more probable than not that the carpet has worn down as a result of normal wear and tear. Furthermore, the photos from the Landlord are not sufficient to establish that storing belongings in the unit caused excessive wear and tear to the carpet.
18. The impact to the Tenants of this issue is more cosmetic and an abatement is not appropriate.
[...]
T6 application:
5. The Landlord shall perform the following repairs on or before February 28, 2018:
a) Repair or replace the carpet in the front hallway area and one bedroom;"
"26. The Landlord claimed compensation totalling $3,785.00 for the cost of purchasing and installing a brand new pool cover. However, I find that the claim is excessive because the cover was approximately ten years old, and substantially weathered, when it was damaged by the Tenants. The Tenants are not responsible for putting the Landlord in a better position than he occupied before the damage occurred, which would happen if I ordered the Tenants to pay for a new cover. Considering the size of the pool cover and the size of the hole, it stands to reason that a patch or repair would be indicated. However, Landlord did not provide evidence about the possibility of repairing the cover, or about the cost of a repair kit or other repair work. The Landlord also did not provide evidence about the anticipated useful life of a winter pool cover, and the Schedule to O.Reg. 516/06 is not informative on this issue, and as such, there is insufficient information for me to calculate the depreciated value of the pool cover. The Landlord’s claim for compensation fails for insufficient evidence."
"56. The Landlord, ML, stated that, as a contractor, he estimates the cost to repair and restore the property will exceed $27,000.00. The estimate, filed at the hearing, includes new kitchen cabinets, counter and flooring. The Landlords are not entitled to have the Tenant pay for renovation of the kitchen and flooring when the useful life of these items has expired. In addition the evidence did not clearly show the Tenant was responsible for the “water” damage to the flooring. The Tenant’s evidence about the entry door leaking was un-contradicted."
"1. With respect to the Tenants T6 application, the only issue for this application was a stove that the Tenant admittedly replaced himself on May 3 or 4, 2011. The Tenant then made his application on May 4, 2012 to the Board to seek damages relating to this event.
2. The Residential Tenancies Act states that there is a one year limitation for tenants to make application for such items, therefore he would have had to have made the application no later than the 2 or 3rd of May, 2012 when instead the application was made on May 4, 2012.
3. For this reason, the Tenants T6 application was dismissed.
4. With respect to the Landlord’s L2 application, this application was filed with respect to the same issue however there is no one year limitation placed on a landlord in this case.
5. It was the Landlord’s position that a new stove was placed in this unit on April 24, 2006 at a cost of $385.20. The Tenant agreed with this point.
6. The Tenant alleges that on May 3, 2011, he got sick and tired of T.C.H. to make repairs to the stove as he claims it was giving him electrical shocks and replaced the stove with one of his own and dumped the T.C.H. owned stove.
7. The Tenant was unable to provide any evidence that he ever placed any work orders with T.C.H. to have this unit repaired with the exception of the fact that R.T. recalls having to make a wiring fix to the unit in 2009.
8. On April 29, 2011 and May 3, 2011 R.T. did receive a work order to inspect the stove however the work order was generated by the Municipal Licensing standards group. R.T. attended the unit on both days and was refused entry by G.T. both times. He returned again on May 4, 2011 and now found a new stove in place.
9. The Tenants representative stated that all costs should be removed as this was a “faulty stove” however I find no evidence to verify this and can only see one instance of a problem which was repaired by T.C.H. promptly.
10. This stove was not owned by the Tenant and he had no right to summarily dispose of it whether he felt there was a problem or not. The Tenant had the right to file a complaint with this Board but did not.
11. The stove was used for 5 years and since it has an estimated life span of 15 years I have discounted the value by 1/3 for cost to replace it of $254.10."
"9. The N5 notice served on the Tenant, also alleged that the Tenant wilfully or negligently caused undue damage to the rental unit. ML and RM both submitted that the Tenant’s lack of ordinary cleanliness in the unit has led to undue damage to the appliances, flooring, bathroom fixtures, cabinetry, and walls. RM further stated that the walls were yellow/brown from the Tenant smoking in the unit and covered in grease from the Tenant’s cooking. Neither ML nor RM were able to confirm when the flooring, cabinets and bathroom fixtures had been installed or when the unit was painted last. It was speculated that these items were addressed just prior to the commencement of the tenancy.
10. The Tenant has resided in the rental unit for seventeen years. There was no evidence before me that any of the alleged damaged items had been changed, repaired or replaced within those seventeen years. Although the Landlord argued that the condition of the unit was beyond normal wear and tear, the evidence before me was insufficient to find that this was the case. The Landlord provided no installation date of these items, no evidence of the condition of these items upon the Tenant’s occupancy of the unit and no maintenance records related to these items for this unit.
11. Ontario Regulation 516-06 (the “Regulation) under the Act provides a schedule listing the useful life of work done or things purchased for a rental unit or residential complex. The schedule provides the useful life of flooring such as carpet, vinyl and linoleum of approximately ten years. RM confirmed that this type of flooring was in the rental unit. The schedule also provides the useful life of interior painting at ten years, appliances such as refrigerators and stoves at fifteen years, and tubs, toilets and sinks at fifteen years as well. The stated useful life of cabinets and countertops is twenty-five years.
12. While it is understandable that on-going cooking and smoking within a rental unit will eventually discolour the walls and/or leave a substance on the walls. These are two activities that one would expect to be normally done in one’s home. After more than seventeen years of these continuous activities, without any repair or updating by the Landlord, it is expected that the interior paint (walls) would wear, especially given that the Regulation provides for a useful life of only ten years. It is the Landlord’s obligation to maintain the rental unit.
13. The Landlord submitted that the Tenant never requested any maintenance for his unit. However, regardless of whether or not a tenant requests maintenance, I am satisfied that with a long term tenancy such as in the case here, a landlord ought to be following up after their yearly unit inspections with issues such as interior painting and flooring to ensure they have not out lived their useful life.
14. All of the alleged damaged items in the rental unit are items listed in the schedule of useful life in the Regulation. All of the items, except for the cabinets and countertops have a useful life less than seventeen years. Given that the Landlord did not provide the date of installation for the cabinets and countertops in the rental unit, I am not satisfied that these items are still within their useful life of twenty-five years.
15. It is not sufficient to simply compare the condition of this rental unit to another rental unit with the same tenancy length to determine normal wear and tear. I find it likely that there will be variations in the wear and tear of items within a rental unit simply based on a number of factors that can occur over a seventeen year tenancy. In this instance these items were beyond their useful life and ought to have been replaced by the Landlord in any event."
"34. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act and I find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. The Tenants shall be given some time to pay to the Landlord the cost of repairing the undue damage.
35. When considering the useful life remaining in the current laminate flooring that has been damaged, I turn to the Schedule entitled “Useful Life of Work Done or Thing Purchased”, of Ontario Regulation 516/06 (‘Regs’) under the Act. The Schedule of the Regs does not contain any item entitled “laminate flooring”. However, I believe that laminate flooring, which is a man-made product comprising layers of wood byproduct, is more akin to vinyl flooring as a comparable product, than to hardwood flooring. I have determined and chosen, therefore, to use the useful life of vinyl flooring as the basis for calculating the Landlord’s remedy [reference: table 8, item 13 of the Regs].
36. I am satisfied that the current floor has been in the rental unit for 5 years. Using 10 years as the useful life for vinyl flooring, I find that the Landlord is entitled to 50% of the replacement cost or $2,616.00 as compensation for the undue damage."
"25. I have already found that the Tenant wilfully or negligently damaged the carpet, closet door and kitchen cabinet doors to an extent that they cannot be repaired and need to be replaced.
Carpet
26. The Landlord requested $650.00 for the carpet replacement. The Landlord provided an invoice for the carpet, setting out that it will cost $797.04 in materials and $1,075.76 in labour, a total of $1,872.80 to replace the carpet. The carpet is seven years old.
27. According to the Schedule of Useful Life of Work Done or Thing Purchased in O. Reg. 516/06: General, ensuite carpeting has a useful life of 10 years. Therefore, at seven years old, the carpet has 3 years (or 30%) of useful life remaining. I award the Landlord 30% of the $1,872.80 in damages requested to replace the carpet; or $561.84."
"[31] The Landlords claimed compensation of $180.71 to replace eight sets of curtains, and $336.61 to replace thirteen window roller shades, which the Landlords claimed were damaged by smoke residue. The amount claimed represented the retail value of purchasing new items. The Landlords brought one of the roller shades to the hearing, and a residue and smoky odour were distinctly present. However, apart from the residue issue, the shade also appeared to be quite old. The Schedule to O.Reg. 516/06 sets the useful life of draperies and Venetian blinds at ten years. The Landlords did not provide the age of the curtains and roller shades as part of their oral testimony, but if the sample brought to the hearing was representative, they were likely more than ten years old. As such, the items would have exceeded their anticipated useful life and have a depreciated value approaching nil. Although the rental unit had old but functional window coverings when the tenancy commenced, and less than that when the tenancy ended, there was insufficient evidence before me to determine an appropriate amount of compensation, greater than zero, to put the Landlords back in the position they would have occupied if the damage had not occurred. The new replacement price is not appropriate. For these reasons, the Landlords’ claim is denied."
"4. The living room carpet is past its useful life and the Landlord will be responsible for its replacement.
[...]
The evidence before me shows that the Tenant was not intoxicated at the time of the incident and I accept that he may well be suffering from PTSD and has recurring nightmares or night terrors.
The Tenant’s representative submits that should I make the above findings, the Tenant did not have the intention to damage the rental unit; therefore, he could not have done it either negligently or wilfully. She said that in the absence of an express determination that the incident was wilful or negligent, I must determine that it was accidental, and, therefore I should not order eviction or payment against the Tenant. She cited the rule that people should not be held responsible to involuntary acts that occur without any will to perform such act (automatism).
She referred me to a case heard in 2000 before the Ontario Rental Housing Tribunal, the Board’s predecessor agency, TNL-16945. In that case, the Member found that the landlord did not introduce sufficient evidence to satisfy her that the tenant wilfully or negligently caused undue damage to the rental unit and she dismissed the application. The Member found that the damage was done involuntarily, therefore, not wilfully or negligently.
The Member’s reasons are conclusions with scant analysis. They give me no reason as to why I should decide the same way. In addition, Tribunal or Board decisions are not binding on the Board.
The Kinsmen Club of Kingston decision reached by an Ontario Superior Court of Justice judge in 2005 was not under the Residential Tenancies Act, 2006 (Act) or its predecessor, but under the Tort Law. In any case, only a decision of the Divisional Court branch of the Ontario Superior Court of Justice is binding on the Board.
The Tenant’s representative correctly submitted that the Ontario Human Rights Code (Code) is paramount to the Act. This is clearly stated at subsection 3(4) of the Act. The Board’s Guideline 17 about Human Rights details the steps that a Member should follow.
First, is the Tenant protected under subsection 2(1) of the code? The answer in this case is yes. There is sufficient medical evidence to support that. Second, has the Tenant been discriminated against, contrary to the Code, by the Landlord asking for compensation for the damages that occurred during the incident of September 29, 2011?
In a similar case decided by Divisional Court in 2010, Morguard v. Peters, 2010 ONSC 2550, Divisional Court File No.: 436/09, the Court wrote at paragraph 22:
Moreover, the Code does not obviate a disabled person’s responsibility to pay for damages to a Landlord’s premises extending beyond reasonable wear and tear: see Eskritt . MacKay [2008] O.J. No. 3434 (C.A.) at para 3. Put another way, the Code does not relax the standard of wilful or negligent behaviour applicable under the common law for the purpose of s. 64 of the Act.
Divisional Court may have misspoken by referring to s. 64 of the Act whereas s. 89 would be correct as it deals with the landlord’s application, not a termination notice. However, this is not sufficient for me to distinguish the resent case from Morguard.
In Morguard, the Court has touched indirectly on the argument of the Tenant’s representative stating that the Tenant’s responsibility for ordinary cleanliness under s. 33 of the Act is not a continuous one. The Court stated at paragraph 10 that the landlord has a lawful interest in protecting itself against future claims to comply with s. 20 of the Act. In Morguard, there was an odour emanating from that tenant’s unit. In this case, there is a bio-hazard (blood) in the living room carpet, on walls and in the grout of the bathroom floor.
Therefore, I will order the Tenant to have all blood traces removed from the unit, including the living room carpet. Should cleaning not be sufficient, the walls where blood stains persist need to be painted to ordinary standards of workmanship and the grout be free of any blood remains. If the Tenant fails to do so, then the Landlord shall have the work performed at the Tenant’s expense under the amounts specified in the order.
I find that $300.00 claimed for painting is reasonable as well as $100.00 to remove garbage and unwanted furniture. Given that the carpet is about 15 years old and has exceeded the useful life of 10 years specified in O. REG. 516/06, I find that the Landlord is responsible to replace the carpet in the living room."
"10. The walkway on the Tenant’s side of the driveway has substantially more surface erosion as compared to the Landlord’s side. This is evident from photos of the walkway submitted by both parties. The majority of the erosion is on the part of the walking that is adjacent to the Tenant’s side of the driveway. The erosion cannot be reasonably explained as wear and tear because the Landlord’s side of the walkway only has minimal erosion.
11. The Tenant does not dispute parking a vehicle between November 2017 and January 2018 on the driveway. RD submitted a photo of a vehicle driven by the Tenant taken in January 2018 which shows the two right wheels of the vehicle on the walkway. RD testified that the Landlords’ contractor informed him that the erosion on the surface spreads once damaged and that repair is not possible with this type of concrete walkway. I am also satisfied that the Landlords informed the Tenant not to park on the walkway as it is not designed to support the weight of a vehicle.
12. RD submitted a quote for $4,520 from BK Renovations & Painting Ltd. dated February 8, 2018 to repair/replace the driveway and concrete walkway. I am deducting $904 from the quote representing the tax included cost to replace the driveway.
13. The walkway was constructed in August 2015. The Landlords are not entitled to a new walkway. RD did not provide any submissions about the useful life of the walkway. I am guided by Item 1 in Table 2 of the Schedule for the useful life of a thing purchased in Ontario Regulation 516/06. The useful life of a concrete walkway is 15 years. Therefore the cost claimed by the Landlords is reduced by 3 years and the Landlords are entitled to $2,892.79 ($4520 - $904 (cost of driveway) - $723.21 (use of driveway for three years))."
"21. The Tenants caused negligent undue damage to the basement rec room carpet and the vinyl floor tiles in the basement kitchen and laundry room. The photos submitted show discoloration and staining of the rec room carpet and some discolouration of the basement kitchen vinyl flooring. The summary of work completed report from Intron Enterprises indicates that the carpet, underpad and baseboards were removed because of pet stains and odours. The quote for the laundry room floor replacement indicates that there is a very strong urine odour which has penetrated the plywood sub floor.
22. The Landlord submitted a quote to remove and replace the vinyl flooring in the basement kitchen from Intron Enterprises dated May 5, 2018. I am not allowing the costs claimed in this quote related to the kitchen cupboard and missing filter. The Landlord said the flooring was newly installed in 2017. Therefore I am depreciating the cost claimed based on a useful life of 10 years as specified in the item 13 of table 8 of the useful life schedule set out in the Ontario Regulation 516/06 of the Act. The Landlord is entitled to $1,253.85 ($1,567.31 - $313.46).
23. The Landlord submitted a quote to replace the laundry room floor for $1,966.20. I am disallowing $330 to wash and paint the walls as the evidence supports a finding that it was the flooring that was damaged. I am also depreciating the amount claimed by two years based on a 10 year useful life (item 13, table 8 of the useful life schedule). The Landlord it entitled to $1,274.64 ($1593.30 - $318.66).
24. The Landlord is also entitled to the replacement of the carpet in the basement recreation room. The Landlord submitted a quote for $2,969.64 from Intron Enterprises dated May 5, 2018. I am disallowing the cost to wash and deodorize walls from the quote and depreciating the cost by two years (10 year useful life as per item 2 in table 8). The Landlord is entitled to $1,990.60 ($2,488.26 - $497.66).
25. The Tenants caused negligent undue damage to one window pane in the unit. The Landlord submitted a photo of the broken window pane. The quote from Intron Enterprises dated May 5, 2018 indicates a cost of $450.00 to replace broken panes of glass. Since the Landlord claimed there were eight broken windows, I have divided the quoted cost by eight and depreciated it by two years based on a useful life of 15 years as set out in item 2 of table 8 of the useful life schedule. The Landlord is entitled to $48.75."
"20. On the uncontested evidence of the Landlords, I also find the following:
a. There was damage to the washer/dryer unit wilfully or negligently caused by the Tenant. Based on the Landlords’ evidence, the washer/dryer unit was 10 years old. Based on Ontario Regulation 516/06 of the Act, I find the life of the unit to be 15 years. Therefore, based on a depreciated value the Landlords will be entitled to the amount of $965.33 for the washer/dryer unit. (Exhibit 8)
b. There was damage to the stove wilfully or negligently caused by the Tenant. Based on the Landlords’ evidence, the stove was 10 years old. Based on Ontario Regulation 516/06 of the Act, I find the life of the unit to be 15 years. Therefore, based on a depreciated value the Landlords will be entitled to the amount of $638.33 for the stove. (Exhibit 8)
c. There was damage to the refrigerator wilfully or negligently caused by the Tenant. Based on the Landlords’ evidence, the refrigerator was 2 years old and based on Ontario Regulation 516/06 of the Act, I find the life of the unit to be 8 years. Therefore, based on a depreciated value the Landlords will be entitled to the amount of $834.50 for the refrigerator. (Exhibit 8)
Lump Sum Damages
21. The Landlords also claimed the total amount of $5,763.00 for damage to the laminate flooring, bathroom cabinet, light switches, broken towel bar and drywall damage, and painting the entire rental unit. (Exhibit 9)
22. On the uncontested evidence of the Landlord I find that the water damage caused to the laminate flooring was negligently or wilfully caused by the Tenant leaving the water running and damaging the flooring. I also find that the damage to the light switches, bathroom cabinet and the broken towel bar and resulting drywall were due to the Tenant’s wilful or negligent damage to the rental unit.
23. I find that the Landlord did not provide sufficient evidence to prove on a balance of probabilities that the rental unit requires re-painting due to the wilful or negligent behaviour of the Tenant. I find that it is more likely that as the rental unit had not been painted in 10 years, painting is likely necessary due to wear and tear and not negligence. As the Landlord did not provide a breakdown for the cost of painting the unit, I will deduct the amount of $1,000.00 for painting the rental unit as a reasonable estimated cost."
19) CEL-71015-17 (Re), 2017 CanLII 93872 (ON LTB), <https://canlii.ca/t/hq1v8>
"28. I further find that the Tenant did not void the N5 notice of termination within the seven-day period under subsection 62(3) of the Act in respect of the removal of the rental unit’s carpet.
29. I reviewed the photo evidence provided by the Tenant (i.e. TT#2) concerning her claim of a dirty state of the carpet and am unable to determine from those photos that the carpet was so bad, it had to be removed. In fact, I find the Tenant’s photos fall well short of refuting those of the Landlord (LL#5), which show a carpet in an apparently satisfactory condition.
30. As such, I find the Tenant wilfully or negligently caused undue damage to the rental unit by removing the carpet and under-padding, all without the express approval of the Landlords.
31. With regard to these findings, I am ordering that the Landlord be given lawful access to the rental unit for the purpose of having new carpet installed, the cost of which (i.e. the replacement carpet, under-padding and installation) will be reimbursed to the Landlords by the Tenant, which the Tenant had offered to do from the outset. If the Tenant pays the Landlords as ordered under this order, then the tenancy shall continue. If not, then the Landlords will be able to seek eviction of the Tenant, without further notice to the Tenant, under section 78 of the Act.
32. I made the foregoing determinations at the hearing.
33. I find that the cost to replace, as submitted by the Landlords in exhibit LL#3 (i.e. $5,600.00), is a reasonable cost of new carpet replacement.
34. In typical claims of undue damage by tenants, particularly those relating to damaged carpets, Ontario Regulation 516/06 provides guidance that the useful life of carpet is about 10 years, which means that depreciation is typically entered into the calculation for compensation or reimbursement when it is ordered.
35. The reason depreciation is calculated in orders is to address the issue of betterment that might arguably apply when compensation is awarded for something new that replaces something damaged. The purpose of compensation is to put landlords in the same position they were before the undue damage occurred and not to make them better off.
36. Here, I note that the rental unit carpet is ten years old, which by Ontario Regulation 516/06, puts the carpet at the very end of its useful life. By applying depreciation as suggested by the Regulation, that would place the value of the carpet at no value at all, which I reject as incorrect and unfair.
37. Had the damage not occurred, I am satisfied from the evidence produced that the Landlords could have waited several more years before having to replace the existing carpet. I accept the Landlords’ testimony and evidence that they have taken good care of the carpet over the years. As such, I believe a depreciation of 25% is much more correct and fair to apply in the case at bar.
38. Consequently, I am going to order that $4,200.00 be reimbursed to the Landlords by the Tenant, which uses a depreciation value of 25%. The Tenant shall have two months from the date of this order to pay the full value of compensation to the Landlords in order for the tenancy to continue.
39. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, and find that it would not be unfair to grant relief from eviction subject to the condition(s) set out in this order pursuant to subsection 83(1)(a) and 204(1) of the Act."
"30. On a balance of probabilities I find the claim for this item ($1,200 plus HST) to be not proved. The evidence does not establish that the alleged ceiling damage constitutes undue damage caused by the tenant’s wilful or negligent conduct.
31. The third item is $3,680 for “prepare and paint all walls with 2 coats of premium paint”, Mr. Ellis fairly conceded in closing argument that a betterment allowance should be applied to this item and he suggested a reduction of 50%. The defence did not suggest any competing reduction but simply denied liability.
32. Based on the evidence of Ms. Izumi concerning the age of the carpets, I infer that the age of the paint was the same: upper floor was new as at 2011 (6 years old), ground floor was original from 1999 (18 years old) and basement was painted a “few years” before the plaintiffs moved out which I would estimate at 2010 (7 years old). There is no specific evidence of the normal lifespan of paint or in other words at what interval fresh paint would normally be applied by a reasonable landlord in general or these landlords in particular.
33. In his submissions Mr. Ellis referenced the chart of lifespans enacted by regulation under the Residential Tenancies Act, 2006, as a guide for normal lifespans. The Schedule to O.Reg. 516/06, lists in Table 8, s. 19, the useful life of interior paint as 10 years. That Schedule is not determinative for purposes of civil liability because it is a guide only for the purpose of determining landlords’ requests for rent increases based on capital expenditures. But is has been considered in these situations – not as a substitute for evidence but merely as a rough guide or comparator: Boardwalk General Partnership v. Ali, [2009] O.J. No. 369 (Sm. Cl. Ct.), at paras. 11-14; Stamm Investments Ltd. v. Contant, [2016] O.J. No. 353 (Sm. Cl. Ct.), at paras. 18-19.
34. The evidence of damage to walls includes the damage left from the removal of the two interior walls built by the defendant. There is also some serious gouge damage at the bottom of the main staircase (Exhibit 1, Tab 3, second page, lower left and lower middle). There is damage from a baby gate having been screwed into the wall beside the rear door (Exhibit 1, Tab 3, fourth page, upper left).
35. Based on the whole of the evidence I am satisfied that the just-mentioned gouge marks and screw-hole damage are significant enough to constitute undue damage caused by wilful or negligent conduct of the defendant. However screw-hole damage can be filled and covered over in the course of a re-paint without amounting to any increased pecuniary loss to the landlords if a paintjob was being done anyway. The gouge marks are plainly more serious but may or may not cause any increased pecuniary loss. There is no estimate specifically for the cost of repairing those gouge marks.
36. Based on the evidence I find that the paint was near the point at which it would require a re-paint simply due to age or wear and tear. I appreciate Mr. Ellis’ concession that a 50% betterment factor should apply and certainly compared to the positions taken by landlords in the many similar cases I have seen that proposed reduction appears quite reasonable. But in this particular case in my view even a 50% reduction would amount to overcompensation given the apparent age of the paint in this house.
37. In my view the most appropriate disposition is to apply a betterment reduction of 80%. This results in an award of $832 inclusive of HST.
[...]
Issue 2: Flooring and Carpets
42. The preparation component of this claim is $600 plus HST as mentioned above. New carpet was purchased and installed for $3,980 inclusive of HST (Exhibit 1, first page and supporting Factory Flooring Carpet One invoice dated September 9, 2017) and new flooring for $1,474 inclusive of HST (Tab 8, first page and supporting Source Flooring invoice with receipt dated August 31, 2017). Mr. Ellis conceded that those two items should be reduced for betterment by a factor of 50%.
43. O.Reg. 516/06 puts the useful life of carpet and of the most common types of flooring at 10 years. In this case the evidence of Ms. Izumi puts the age of the existing carpets (see above at para. 31) at 6, 18 and 7 years old. In these circumstances one could say that if one level of the house needed redoing anyway, the landlord might have advanced the timing to redo the other two, or might have replaced one level now and waited a few more years to do the other two. There is no evidence either way of the landlords’ intentions in this case. Or one could take an average of the three ages and conclude that the actual pecuniary loss is zero, or alternatively minimal if one found that a few more years could have been had of two levels but for undue damage caused by the tenant’s wilful or negligent conduct.
44. The evidence of damages in this case includes clear staining of the basement carpet (Exhibit 1, Tab 3, first page, middle row), and there is an area where the defendant admitted she had kept first one and then another entire litter of puppies (Tab 3, second page, upper right). I find it clear that this damage amounts to undue damage caused by wilful or negligent conduct, with the exception of the carpet stain by the window where water intruded during the tenancy. As to the latter stain I find that is not proved to be the tenant’s responsibility.
45. There is also evidence of flooring damage in the upstairs bathroom (Exhibit 1, Tab 3, fifth page, middle left and middle centre). The plaintiffs’ theory appears to be that a prior toilet leak was not properly reported by the tenant resulting in water damage to the under-flooring going undetected until after the tenant vacated. I appreciate that the theory is rational. However water damage to bathroom underflooring is common and one might say inevitable over a sufficient period of time. The bottom line for this particular item is that I find it is not proved on a balance of probabilities that this damage was caused by wilful or negligent conduct on the tenant’s part.
46. The photographs of the remedial work while underway (Exhibit 1, Tab 4) do not assist in determining what flooring or carpeting was unduly damaged by the tenant so as to need replacement. Similarly, I find almost all of the defendant’s photographs (Exhibit 11) to be unhelpful as they depict mostly items that are not in issue.
47. The court’s duty is to determine what if any undue damage was caused by wilful or negligent conduct by the tenant, and to assess pecuniary damages flowing therefrom. Based on the evidence I find that the tenant caused undue damage to the basement carpet through wilful or negligent conduct. That carpeting was about 7 years old, and was partially damaged near the window by water intrusion that was not the tenant’s responsibility.
48. Doing the best I can with the evidence provided, I would allow part only of the items for carpet ($3,980 inclusive of HST) and preparation ($600 plus HST). Estimating that the basement cost one-third of those amounts reduces those figures to $1,553. Applying a betterment factor of 70%, I would allow this item in the amount of $466."
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