As we know from multiple rulings and from the LTB Interpretation Guideline 6 ("Tenant Rights"), "landlords have a positive obligation to provide quiet enjoyment and take reasonable action to address another tenant's conduct that disturbs the complaining tenant. If the landlord fails to reasonably respond to the complaints, the landlord may be in breach of section 22."
As stated in the frequently cited Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (On. Div. Ct.), at para. 16:
"16 It is not that the other tenant's actions are imputed to the landlord, but, rather, the landlord's legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment."
As stated by Kevin Lundy in SWL-04618-17 (Re), 2017 CanLII 60510 (ON LTB), <https://canlii.ca/t/h5z0s> at para. 36:
"36. The Board does not have jurisdiction to resolve conflicts strictly between tenants. The only question before me is whether or not the Landlord took appropriate steps in response to the Tenant’s complaints. In other words, the relevant issue is not whether K. substantially interfered with the Tenant’s reasonable enjoyment, but whether the Landlord, through inaction, substantially interfered with his reasonable enjoyment of the rental unit or the residential complex."
Below is some information on:
- the steps that are available to tenants,
- landlords' obligations and steps that landlords could take, and
- some rulings (there are at least 76 LTB rulings currently on CanLII that cite Hassan v. Niagara Housing Authority, so we will only provide a few examples).
1. Tenants'Recourse:
Some ideas by Community Advocacy and Legal Centre for tenants who want to complain about disturbance caused by other tenants:
"Notify Your Landlord in Writing
Send Your Landlord a Letter or Email
1. Be clear what the issue is.
2. List detailed examples of what problems you are experiencing.
3. Give the landlord a timeline to do the work (2 weeks is reasonable for most problems).
4. Date the letter.
5. Keep a copy for your records. Make sure to make a copy before giving it to your landlord.
Sample letter by Community Advocacy and Legal Centre:
If the letter did not work, the tenant may consider the following:
1. Keep telling the landlord about the problem in writing on an ongoing basis. Make sure you are keeping copies of the letters you give to your landlord.
2. If the landlord does not take steps to fix the problem, consider filing a T2 application with the Landlord and Tenant Board (LTB).
The LTB can order the following remedies:
A. Order the landlord to fix the problem;
B. Order an abatement of rent be paid;
C. Order that you can end your tenancy if you want to move out; [and/or other remedies].
The grounds for the application are that the landlord has seriously interfered with the tenant’s reasonable enjoyment by not stopping the disturbance from the other tenant."
Checklist by Community Advocacy and Legal Centre:
Note: current filing fees for T2 applications are $53 (or $48 by e-File): https://tribunalsontario.ca/ltb/filing-and-fees/
Helpful toolkit for tenants for T6 and T2 applications - by Hamilton Community Legal Clinic
2.
"Other Tenants
Sometimes it is other tenants living in the same building who are causing the disturbance, not the landlord. However, landlords have a positive obligation to provide quiet enjoyment and take reasonable action to address another tenant's conduct that disturbs the complaining tenant. If the landlord fails to reasonably respond to the complaints, the landlord may be in breach of section 22. While the landlord in such a situation is not directly responsible for the actions of the offending tenant, the landlord's responsibility is linked to a failure to take reasonably necessary actions to ensure that the complaining tenants could reasonably enjoy the premises: Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (On. Div. Ct.), First Ontario Realty Corp. v. Appelrouth [2012] O.J. No. 3639 (Ont. Div. Ct.).
Examples of LTB orders where the landlord was found not to have reasonably responded to tenant complaints include: TNT-93077-17 (Re), 2017 CanLII 60310 (ON LTB), TST-79928-16 (Re), 2017 CanLII 60136 (ON LTB), EAT-61394-16 (Re), 2017 CanLII 48747 (ON LTB), TST-69619-15 (Re), 2016 CanLII 40107 (ON LTB), TST-69295-15 (Re), 2016 CanLII 40109 (ON LTB).
Examples of LTB orders where the landlord was found to have reasonably responded to tenant complaints include: CET-63203-16 (Re), 2017 CanLII 28729 (ON LTB), SOT-76231-16 (Re), 2017 CanLII 28579 (ON LTB).
A landlord cannot be held directly responsible for the actions of third parties which it does not control, such as construction noise coming from an adjacent property. The LTB can consider whether the landlord has taken reasonable steps to reduce the disruption caused by the third party: First Ontario Realty Corp. v. Appelrouth [2012] O.J. No. 3639 (Ont. Div. Ct.)."
3. Landlords' Obligations:
What are the obligations of landlords who face complaints from tenants about other tenants?
- Hassan v. Niagara Housing Authority, 2001 CarswellOnt 4890, [2000] O.J. No. 5650, 48 R.P.R. (3d) 297, at para. 20:
"20. Writing threatening letters to the offending tenant, holding meetings with the offenders and offended, is not enough if the harassment continues and, indeed, increases. The landlord had to do something effective, if necessary make application to terminate the tenancy of the offender."
- An example was mentioned by Member Roger Rodrigues in TST-70323-16 (Re), 2016 CanLII 71222 (ON LTB), <https://canlii.ca/t/gv8k2>, at para. 32 or in TST-65814-15 (Re), 2016 CanLII 39745 (ON LTB), <https://canlii.ca/t/gsb20> at para. 23 or in TST-61407-15 (Re), 2016 CanLII 39767 (ON LTB), <https://canlii.ca/t/gsb1l> at para. 57:
"57. In my opinion, it follows from Hassan and First Ontario Realty Corp., supra, that a landlord, faced with complaints about offending conduct by one tenant against another tenant, must take reasonable steps, within a reasonable amount of time, to investigate the offending conduct, appropriately address the conduct and, where the conduct does not cease, issue a notice of termination to the alleged offending tenant(s). The service of a N5 notice of termination by a landlord is a significant, and an often effective, step where the offending conduct does not cease as is alleged here."
- By Member Michael Soo in SOT-65233-15 (Re), 2016 CanLII 44378 (ON LTB), <https://canlii.ca/t/gsk21> at para 28:
"28. It flows from Hassan that a landlord faced with complaints from one tenant about another must investigate the complaints. If there is merit to the complaints, the landlord must take such reasonable steps as warnings, escalating to eviction proceedings, if the offending behaviour is not corrected."
- By Member Eli Fellman in TET-09112-10 (Re), 2011 CanLII 50475 (ON LTB), <https://canlii.ca/t/fmqj9> at para. 11:
"11. In accordance with Hassan, the Landlord cannot simply ignore the Tenants’ concerns because they relate to the conduct of other tenants living in the complex. Further, while the Landlord stated on a number of occasions that it is difficult for her to deal with problems at the rental unit because she is living alone in Canada with her baby, she must still fulfill her legal obligations as a Landlord. Therefore, the Landlord will be required to take reasonable steps to address the heat issue with both sets of tenants and attempt to reach a solution that all parties can accept."
- By Member Eli Fellman in TET-06355-10 (Re), 2010 CanLII 65651 (ON LTB), <https://canlii.ca/t/2d8zg> at para. 7:
"7. In this case, I find that the Landlord has not met its positive obligation to provide the Tenant with quiet enjoyment and take the reasonably necessary action against the offending tenant as per the decision in Hassan. Having received dozens of well-documented noise complaints from the Tenant, the Landlord had a duty to take active steps to address the problem. Speaking to the offending tenants on one occasion and service one N5 Notice is an inadequate response. Further, the fact that the Landlord chose to file an application for rent arrears only instead of filing an application seeking eviction of the offending tenants, and was aggrieved at the fact that she made repeated complaints to him, indicates that the Landlord had no intention of providing a meaningful response to the Tenant’s justified complaints."
4.
Now let's look at some rulings.
1)
Hassan v. Niagara Housing Authority, 2001 CarswellOnt 4890, [2000] O.J. No. 5650, 48 R.P.R. (3d) 297
"1 This is an appeal from the decision of the Ontario Rental Housing Tribunal, dismissing the tenant's application for an order determining that the landlord by failing to control the harassment of his family by a neighbouring tenant had substantially interfered with his reasonable enjoyment of the rented premises.
2 The landlord does not dispute that the tenant suffered harassment by the children of a neighbouring tenant from the time he moved into the premises in August of 1996 until the hearing before the Ontario Rental Housing Tribunal on September 1, 1999.
3 The harassment suffered by the tenant can be summarized as follows: swearing, verbal abuse against all the members of the tenant's family, pushing of tenant's small children by the neighbour's older children, throwing of eggs and other objects against the tenant's window, shining of a flashlight in the tenant's window, knocking on tenant's door by neighbour's children, use of tenant's driveway by neighbour's twenty year old son and his friends, scratching, kicking, and breaking a window of tenant's car, intimidation and threats to tenant's children by older sons of neighbour to the point of preventing their exit from their home, spraying of water onto the tenant's wife when she responded to the knock on her door by the neighbour's children, blockage of tenant's driveway by neighbour's children, sitting of those children on tenant's car, revving of a motorcycle in front of tenant's front lower window to disturb the tenant and his family, urinating by neighbour's children on tenant's basement windows and on his house.
4 Even before the tenant moved into the premises the troublesome tenant had been given a Notice of Termination by the landlord because of the inappropriate behaviour of her children. In October 1997 a window in the tenant's car was broken. In early 1998 the neighbour's children were seen scratching the tenant's car, and assaulting and terrorizing the tenant's children. On May 31, 1998 a child of the neighbour urinated in a bottle and threw the contents at the tenant's wife. When this incident was reported to the landlord's property manager a landlord representative met with the tenant and his wife on June 2, 1998, but concluded that while the tenant's family were being tormented there was no evidence the torment was racially motivated.
5 After the neighbour failed to keep two appointments, two representatives of the landlord met with the neighbour on June 23, 1998, told her her children's behaviour was inappropriate, that they were interfering with the reasonable enjoyment of the other tenants, that she could get and where she could get assistance with behaviourial, parenting skills, that her children's behaviour was putting her tenancy in jeopardy, and that she would be evicted if the behaviour did not stop.
6 The harassment stopped for awhile but it resumed and was in full swing again by August 24, 1998, when a six year old child of the neighbour pushed the head of a three year old child of tenant into the pavement, scraping his head and frightening him. The tenant spoke to a landlord's representative who agreed to speak again to the neighbour, but suggested that the tenant might move.
7 There is nothing in the record to indicate the representative did speak to the neighbour as promised or that the landlord took any steps to control the neighbour and her children.
8 Harassment continued through the rest of 1998, including the leaving of threatening and insulting letters in the tenant's mailbox. The tenant sent a copy of one of these letters to the landlord.
9 On January 26, 1999 the tenant sent a letter to the landlord describing further incidents of harassment, assault, and inappropriate notes. On February 10, 1999 the tenant and his wife met with two representatives of the landlord, but were told it would be difficult to prove the complaints about the neighbour's children, were, in fact, harassment. While one of the representatives of the landlord agreed to talk to the neighbour there is nothing in the record that shows there was any further contact with the neighbour at that time.
10 On March 4, 1999 the landlord was informed by two other tenants of harassment by the children of the same troublesome tenant. There is no indication of action by the landlord against the troublesome tenant because of this further information.
11 On March 25, 1999 one of the neighbour's children threatened to kill the son of another tenant (not the appellant) and his friend. When the mother went to speak to the troublesome tenant, one of her twenty year old sons grabbed her by the neck and held her until a neighbour appeared.
12 Further written complaints by tenants were received by the landlord on May 19, 1999. On May 20, 1999 the landlord prepared a Notice to Terminate the tenancy of the troublesome tenant, but that notice was not served until June 3, 1999.
13 Trouble by the neighbour's children only increased thereafter. The neighbour was still in her premises on September 1, 1999, and, indeed, was not moved by the landlord to another location until November 15, 1999.
14 Section 26 of the Tenant Protection Act, 1997, S.O. 1997, c. 24, reads:
A landlord shall not at any time during a tenant's occupancy of a rental unit . . . substantially interfere with the reasonable enjoyment of the rental unit . . . .
15 The member of the tribunal who heard the tenant's application on September 1, 1999 stated in reasons dated September 8, 1999 that in order to find that the landlord had substantially interfered with the reasonable enjoyment of the rental unit, he would have to find that the landlord itself and not just another tenant had substantially interfered with the tenant's reasonable enjoyment of the rental unit stating:
In my view, that means that the landlord or its employees or agents must either commit an offence or have the mens rea of the activity. I am not convinced that the actions of the other tenant can be imputed to the landlord.
16 It is not that the other tenant's actions are imputed to the landlord, but, rather, the landlord's legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment.
17 As was stated by Judge Conant in Lush v. Dell Holdings Ltd. (September 3, 1986), Doc. M135029/86 (Ont. Dist. Ct.), 1986 District Court Toronto, at p. 4:
From time immemorial in the British judicial system the landlord must provide quiet enjoyment . . . the tenants have almost no method of recourse . . . There is really nothing . . . that the tenant . . . can do but get the landlord [to take action against the tenant].
18 As under the old Landlord and Tenant Act so under the new Tenant Protection Act, the landlord has the positive obligation to provide the tenant with quiet enjoyment and take the reasonably necessary action against any tenant that denies a neighbouring tenant quiet enjoyment of his premises.
19 On the evidence before it, there was no evidence that justifies the finding of the tribunal that the landlord took reasonable steps within a reasonable length of time to restore to the tenant the quiet enjoyment to which he was entitled.
20 Writing threatening letters to the offending tenant, holding meetings with the offenders and offended, is not enough if the harassment continues and, indeed, increases. The landlord had to do something effective, if necessary make application to terminate the tenancy of the offender.
21 In light of the harassment the tenant was subjected to in this case, much of it probably racial in origin, but whether racial or not, the landlord was under an obligation to act quickly, that is within weeks, not months or years to effectively correct the substantial interference with his reasonable enjoyment of his premises caused by the acts of the children of his neighbouring tenant.
22 Because the reasons of the tribunal of September 8, 1999 are somewhat unclear on the point, it must be stated that on the evidence before it the tribunal had to find that from early in his tenancy the tenant suffered harassment that substantially interfered with his reasonable enjoyment of the rental premises.
23 For the reasons above-stated and contrary to the words of the tribunal of November 22, 1999, sitting in review of the decision of September 8, 1999, the earlier tribunal was not entitled on the evidence before it to find that the landlord had acted with reasonable diligence to correct the harassment the tenant was subjected to.
24 The earlier tribunal did make a palpable and overriding error for on the evidence the landlord failed to take reasonable steps to bring the harassment to an end.
25 In our view, at the latest the landlord was obliged by February 1, 1999 to take immediate steps to terminate the tenancy of the neighbour.
26 As to remedy, we award the tenant one-half of the rent paid by him for the months of February to June inclusive, which amount we understand to be $80.00; together with costs of $500.00 inclusive of disbursements.
Appeal allowed."
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2)
"ANALYSIS
49. This application is based on the rights set out in section 22 of the Residential Tenancies Act, 2006 (the 'Act') which says:
A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.
50. It is well settled law that in the context of disputes between tenants this provision imposes a positive obligation on a landlord to take reasonable steps to address the complaints of one tenant concerning another. If a landlord does not take reasonable steps then the landlord may be held liable.
51. So the issue before the Board is whether or not the behaviour of the Landlord’s agent in dealing with the Tenants’ issues was reasonable. I am satisfied that in some respects it was not. I say this for the following three reasons.
52. First, the response of the Landlord’s agent to the complaints from the tenant below about the first-named Tenant’s use of medicinal marijuana was wholly inappropriate and arguably a breach of Ontario’s Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the ‘Code’).
53. The Tenants repeatedly told the Landlord’s agent that the first-named Tenant above uses marijuana as a medicine and was lawfully entitled to do so. The Tenants filed into evidence a letter from his physician confirming this. The treatment is prescribed for a generalised anxiety disorder.
54. Instead of recognizing that the Tenants were claiming the right to accommodation in housing because of disability, the Landlord’s agent simply repeated over and over again that the first-named Tenant should consume his medicine outside.
55. What she should have done is ask for confirmation of the disability and the first-named Tenant’s right to legally possess and consume medicinal marijuana. Once satisfied of that she had a legal obligation to discuss with the Tenants how the first-named Tenant’s disability related needs could be met given the circumstances. Telling him to consume his medicine in public is not an appropriate accommodation of his disability related needs.
56. For example, the Landlord could have provided air purifiers for both units, paid for the device the Tenants found to decrease the smell, or assisted the Tenants to identify additional barriers that could be created to prevent odour from travelling from one unit to the other.
57. Instead of doing any of that she essentially tried to bully them into acquiescing with her demand that the first-named Tenant only use his vaporising equipment outside in view of the next door neighbours.
58. At a very basic level it is not reasonable for a landlord to be in the business of being a landlord but know nothing about the legal obligations of a housing provider. A landlord is a professional, collecting money for providing a service, and should have some degree of knowledge of their rights and obligations. When a landlord encounters a new situation or does not know how to deal with an issue then the landlord should reach out and obtain appropriate advice.
59. In this context the July 17, 2017 text of the Landlord’s agent in which she says she can do nothing until she has sent six warnings and only then can she file an application to the Board is especially troubling.
60. There is no magic formula that requires landlords to issue a certain number of warnings before turning to the Act for a remedy. Rather in this situation it would have been reasonable for the Landlord’s agent to abandon writing futile warning letters about the fighting in the unit below and serve a voidable termination notice pursuant to s. 64(1) of the Act. That has the benefit of putting the noisy tenant on notice that the behaviour will not be tolerated while still providing an opportunity to correct the problem. Further incidents can then be the basis for a successful application to the Board.
61. Second, it would appear that the Landlord’s agent did nothing in response to the complaints of the Tenants that the occupants below were threatening damage to their cars and to the possibility that they were actually tampering with the cars.
62. This issue was first reported to the Landlord’s agent on June 1, 2017. The Landlord led no evidence at all in support of the proposition that the Landlord’s agent responded to the series of complaints that followed about car tampering.
63. As it was not until July 10, 2017 that the Tenants asked the Landlord not to pass along their complaints to the tenant below, the failure of the Landlord’s agent to investigate the allegations or do anything in response to them between June 1, 2017 and July 10, 2017 is wholly unjustifiable and unreasonable.
64. When one tenant allegedly threatens to do damage to another tenant’s property that is a serious threat and a landlord needs to respond to it. The normal response would be to investigate by speaking to both parties. When the complaints continued it would also have been reasonable for the Landlord to install cameras to overlook the parking area.
65. Given all of the above, I am satisfied that the Landlord substantially interfered with the Tenants’ reasonable enjoyment by failing to respond reasonably to the later of the complaints about noise, failing to respond appropriately to the disability related need of the first-named Tenant to consume medicinal marijuana in the rental unit, and by doing nothing in response to the complaints about damage to the Tenants’ cars.
REMEDIES
66. The Tenants’ application seeks as remedies abatement of the rent and rent differential.
67. Abatement of the rent is a contractual remedy. It reflects the idea that rent is paid in exchange for a bundle of goods and services and where a tenant is not receiving everything being paid for he or she is entitled to abatement proportional to the difference between what is being paid for and what is being received.
68. The Tenants’ application essentially asks for abatement of 100%. That is not appropriate as the Tenants were in fact receiving much of what they were paying for. What they were not receiving was appropriate responses to the complaints being made by both sets of tenants.
69. That raises the issue of quantum.
70. Neither party suggested what quantum of abatement would be warranted. And assessing abatement is something of an art rather than a science. At a minimum, abatement should take into account the impact on the tenant of the landlord’s breach.
71. Here, the Tenants’ evidence is that the series of breaches described above left them feeling threatened and fearful of their safety and that of their newborn. Under the circumstances, that fear was not unreasonable.
72. They were sufficiently fearful that they decided they had to move out. They did so even though they had created a nursery for their child, and had planned to remain in the unit for five years to save for a home of their own. Prior to moving out they were so nervous about being in the rental unit that they stayed temporarily elsewhere before actually moving. The decision to move out turned out to be particularly painful because they could not find suitable equivalent housing in their home community and lost many of their social supports when forced to move.
73. Given the evidence of impact on the Tenants, and my knowledge of previous like cases, I believe an appropriate abatement of the rent would be $2,500.00 for the period February 1, 2017 to July 31, 2017, which represents about 30% of the rent charged.
74. The Landlord argues that the Landlord mitigated the Tenants’ damages by agreeing to terminate the tenancy early.
75. It is not clear to me that offering to let tenants move out is actually mitigation under the Act given a tenant’s right to security of tenure, but I would observe that the Landlord’s offer to terminate came with the stipulation that the Tenants’ give 60 days’ notice. This meant they had two more months of the same types of issues to deal with and it was during this period that the threats to the Tenants’ vehicles occurred.
76. In other words, if offering to terminate the lease is mitigation then it did not benefit the Tenants very much. Given the circumstances here the Board would have retroactively terminated the Tenants’ tenancy agreement on this application if asked.
77. As a result of all of the above I do not believe the abatement should be reduced to reflect successful mitigation on the part of the Landlord.
78. Pursuant to s. 31(2)(a), where the Board is satisfied that the conduct of the landlord the Board has found to be in breach of the Act caused the tenant to vacate the rental unit, the Board may order that the landlord pay a specified sum to the tenant for all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit.
79. The Tenants here say that even if the Landlord’s agent had not offered to terminate they would have moved out anyway. This is supported by the texts of May 31, 2017 in which the second-named Tenant refers to “rethinking the situation”. It is also supported by the fact that even when the Landlord’s agent offered to provide additional parking room by widening the driveway the Tenants still wanted to move because of their safety concerns.
80. Those safety concerns are directly related to the Landlord’s failure to respond appropriately to the fighting and noise from below.
81. As a result, the Tenants are entitled to an order for rent differential.
82. The evidence of the Tenants with respect to their new unit is uncontested. Their new unit is roughly equivalent to the old. As a result, rent differential shall be ordered of $400.00 a month for twelve months for a total of $4,800.00.
83. The Tenants incurred costs of $50.00 for filing the application and are entitled to an order requiring the Landlord to reimburse them that cost.
84. Given all of the above an order shall issue requiring the Landlord to pay to the Tenants a total of $7,350.00."
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3)
"31. The core issues of this application relate to AD and/or his guests and their routinely loud noise, foul language and smoking, which interrupted and interfered with the Tenant living above. The Tenant lived for five-and-a-half years in the rental unit, before AD moved in downstairs and which is when the issues in the application arose.
32. The Landlords’ main submission is that the Landlords and DN addressed the Tenant’s complaints by trying to convene a conciliatory meeting between HP and AD. Because the parties refused to meet, DN’s and the Landlords’ position is that they fulfilled their obligation in respect of the Tenant’s complaints.
33. A landlord’s duty to address substantial interference with the reasonable enjoyment of a tenant by another tenant was affirmed by the Divisional Court in Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650. The Court held, inter alia, as follows:
“It is not that the other tenant's actions are imputed to the landlord, but, rather, the landlord's legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment.
…
Writing threatening letters to the offending tenant, holding meetings with the offenders and offended, is not enough if the harassment continues and, indeed, increases. The landlord had to do something effective, if necessary make application to terminate the tenancy of the offender.”
34. I believe that it follows from Hassan, supra, that a landlord, faced with complaints about offending conduct by one tenant against another tenant, must take reasonable steps, within a reasonable amount of time, to investigate the offending conduct, address the conduct and, where the conduct does not cease, issue a notice of termination. Such action by a landlord is a significant, and an often effective, step.
35. The evidence before me is that the problems of AD’s regimen of loud noise, foul language and smoking were substantially interfering to the Tenant and her children.
36. As well, the evidence before me is that the Landlords did take some action by contacting the offending tenant and then trying to convene some sort of conciliatory meeting between the parties, to resolve the issues.
37. While ND’s actions of contacting AD a couple of times and then trying to call a meeting of the parties were done in a timely fashion, the remaining question before me is whether they were reasonable and effective.
38. The relationship between the Tenant and ND, the longstanding tenancy of the Tenant, and the arrival of AD as the basement tenant, present an intricate array of circumstances.
39. However, it seems quite clear to me that a few attempts to contact AD and an attempt to call a “mediation” meeting in of themselves cannot be construed as taking reasonable, effective action to resolve the problems complained about.
40. As well, simply being a respectful, polite landlord is not enough, and is not effective.
41. I note that ND and the Landlords never took the reasonable and effective step of serving AD with a proper notice (such as an N5 notice of termination).
42. Altogether, this lack of action by ND and/or the Landlords is the tipping point on the substantive question before me, and I am sufficiently persuaded to find the balance tipping in favour of the Tenant.
43. Consequently, and on a balance of probabilities, I find the failure by ND and the Landlords to remedy AD’s behaviours and actions was enough to substantially interfere with the Tenant’s reasonable enjoyment of the rental unit."
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4)
"Analysis
Has the Tenants’ reasonable enjoyment been substantially impacted?
10. On a balance of probabilities, I find that the noise in the Tenants’ unit has substantially interfered with their reasonable enjoyment of their home.
11. People living in multi-unit residential complexes must accept that they will hear a certain amount of noise. The mere fact that the Tenants are hearing children running and playing does not establish substantial interference with reasonable enjoyment.
12. However, it was the Tenants’ uncontested evidence that the noise is particularly loud and constant. It continues daily from around 11am to after 11pm. The Tenants hear it in every room in their apartment.
13. I am satisfied that the noise is beyond what a person would reasonably be expected to live with daily in their home, even in a multi-unit residential complex.
Are the upstairs tenants at fault?
14. The Board has often considered noise issues in the context of eviction proceedings. Under section 64 of the Residential Tenancies Act, 2006 (the ‘RTA’), a tenant can be evicted if their conduct is such that it substantially interferes with another tenant’s reasonable enjoyment of the premises.
15. This is a two part test. To evict a tenant for causing noise, a landlord must establish: (1) that another tenant’s reasonable enjoyment has been substantially interfered with; and (2) that the interference was caused by the offending tenant’s conduct.
16. This means a tenant cannot be evicted for noise resulting from the normal activities of daily living, even if the noise is substantially interfering with another tenant’s reasonable enjoyment. The Board has consistently held that a tenant can only be evicted if the noise results from unreasonable conduct.
17. In the present case, the Tenants have not established that the upstairs tenants are engaging in any unreasonable conduct. Children running and playing with their toys are normal activities of daily living.
18. It follows that the Landlords have no obligation to try to change the conduct of the upstairs tenants or their children. The upstairs tenants are acting within their rights in their own home.
What are the Landlords’ obligations?
19. Section 22 of the RTA provides that a landlord shall not substantially interfere with a tenants’ reasonable enjoyment of their rental unit. It is not sufficient for a landlord to merely refrain from conduct that substantially interferes; landlords have been held to have a positive obligation to take reasonable steps to provide tenants with reasonable enjoyment. The leading case on the issue is Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (Ont. Div. Crt.) [Hassan].
20. The facts in Hassan differ a great deal from the present case. In Hassan, the applicant tenant was being seriously harassed by another tenant. The landlord argued that it was not responsible for the harasser’s behaviour. The Court held that “it is not that the other tenant’s actions are imputed to the landlord, but rather, the landlord’s legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant’s right to quiet enjoyment.”
21. The Court continued, “the landlord has the positive obligation to provide the tenant with quiet enjoyment and take the reasonably necessary action against any tenant that denies a neighbouring tenant quiet enjoyment of his premises.” In that case, the Court held that the landlord’s obligation included taking immediate steps to terminate the harasser’s tenancy.
22. Following the reasoning in Hassan, in cases where a neighbouring tenant’s conduct has caused noise that has substantially interfered with an applicant tenant’s reasonable enjoyment, the Board has consistently held that a landlord is obligated to take all necessary steps to stop the offending conduct, up to an including bringing an application to terminate the offender’s tenancy.
23. The present case is different, because the upstairs tenants have not engaged in any improper conduct. They have only engaged in the normal activities of daily living. The Landlords therefore cannot take any steps to change the upstairs tenants’ conduct. Nevertheless, the Tenants are suffering a loss of reasonable enjoyment.
24. Despite the different facts, in my view the central principle set out in Hassan applies to this case and is binding on me. Since the Tenants’ reasonable enjoyment is being intruded upon, the Landlords are responsible for taking reasonable steps to correct the intrusion. The only difference is that, in this case, that cannot include any steps to make the upstairs tenants change their conduct.
25. I must therefore determine what reasonable steps, if any, are available to the Landlords. If the Landlords have taken all the steps they can reasonably take, yet the problem persists, then the Landlords have discharged their obligations and the Tenants will have to either live with the noise, or move.
Have the Landlords met their obligations?
26. The Landlords have spent a great deal of time and effort trying to resolve the noise issue. The superintendent, in particular, has spoken with the upstairs tenants many times and asked them to reduce the noise level. Although these efforts were reasonable, as it turns out I am not persuaded that they were necessary, since the upstairs tenants have no obligation to change their conduct.
27. The upstairs tenants have also tried putting down a carpet, but had to remove it because one of their children was allergic to it. They considered putting down a hypoallergenic carpet, but they say it was too expensive.
28. There are two steps that the Landlords have not considered. First, the Landlords have not investigated whether they can purchase and provide a hypoallergenic carpet, or some other form of sound dampening flooring. They have left it to the upstairs tenants to purchase a carpet, which is not reasonable given that the upstairs tenants are not at fault.
29. Second, the Landlords have not considered whether soundproofing can be installed on the Tenants’ ceiling, or in the building structure between the two units. I do not know whether that would be a realistic solution, but there was no evidence that the Landlords have considered it at all.
30. The Landlords ought to have investigated the above two options to determine whether one of them would be a reasonable step they could take to correct the intrusion on the Tenants’ reasonable enjoyment. Since the Landlords have not investigated, I find that they have not met their obligation to provide reasonable enjoyment to the Tenants.
31. The Tenants have not requested a monetary remedy, so the Landlords will simply be ordered to take the necessary steps to meet their obligations."
_____________________________________
5)
"The Landlord also provided four N5 notices of termination served to the Tenant in August 2015, December 2015, January 2016, and April 2016. While the Landlord did not commence proceedings before the Board based on the four N5 notices, the notices contain numerous dates and other specifics concerning complaints received by the Landlord of excessive noise and other activity in the unit, which the Landlord alleges has substantially interfered with another tenant’s reasonable enjoyment of the unit.
RM testified that the four N5 notices served to the Tenant are based on the occurrence reports mentioned above and complaints from the tenants in units 411 and 412 of the complex. A review of the N5 notices reveals that the notices also refer to the two anonymous complaints.
Lastly, the Landlord provided four complaint letters received from CW, the tenant of unit 412, and dated April 8, 2015, June 3, 2015, February 18, 2016 and May 16, 2016. In each of the four letters, CW describes the nature of the excessive noise coming from the Tenant’s unit and some of the impact of the noise on her. In her testimony, CW, who has resided in the complex for approximately six years, described how she recorded the numerous incidents contained in her four letters to the Landlord and the impact of the noise on her life.
A landlord’s duty to address substantial interference with the reasonable enjoyment of a tenant by another tenant was affirmed by the Divisional Court in Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650. The Court held, inter alia, as follows:
It is not that the other tenant's actions are imputed to the landlord, but, rather, the landlord's legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment.
As under the old Landlord and Tenant Act so under the new Tenant Protection Act, the landlord has the positive obligation to provide the tenant with quiet enjoyment and take the reasonably necessary action against any tenant that denies a neighbouring tenant quiet enjoyment of his premises.
On the evidence before it, there was no evidence that justifies the finding of the tribunal that the landlord took reasonable steps within a reasonable length of time to restore to the tenant the quiet enjoyment to which he was entitled.
Writing threatening letters to the offending tenant, holding meetings with the offenders and offended, is not enough if the harassment continues and, indeed, increases. The landlord had to do something effective, if necessary make application to terminate the tenancy of the offender.
In my opinion, it follows from Hassan, supra, that a landlord, faced with complaints about offending conduct by one tenant against another tenant, must take reasonable steps, within a reasonable amount of time, to investigate the offending conduct, address the conduct and, where the conduct does not cease, issue a notice of termination. Such action by a landlord is a significant, and an often effective, step where the offending conduct does not cease.
In this case, the actions taken by the Landlord were reasonable given the history of complaints by at least one other tenant, CW, about excessive noise coming from the Tenant’s unit. Based on the evidence presented, it is clear that, on the occasions that security attended at the Tenant’s unit, it did so based on complaints received, with two exceptions, from tenants of the residential complex. The two exceptions were complaints from individuals who preferred to remain anonymous, however, there is no evidence before me that those two attendances were in any way improper or for a nefarious purpose, such as to harass the Tenant.
As such, in the absence of evidence from Tenant and her witnesses going to occasions when the attendance by security at the unit was improper or unwarranted, Tenant has failed to prove, on balance of probabilities, that on occasions when security attended such attendances were not justified and amounted to harassment. It may be that on some of the occasions, as the Tenant and her witnesses say, there was no inordinate noise in the unit when security arrived. However, for the most part, those alleged dates were unknown as the Tenant’s witnesses were unable to recall same.
On the other hand, the Landlord, by providing specifics, has shown, on balance of probabilities, that it was justified, and indeed required as mandated by Hassan, supra, to investigate real and documented complaints—usually by the tenant of unit 412. The evidence reveals that most of the dates when security attended at the unit, as stated in the Tenant’s application, match dates on or about when the Landlord received complaints about noise from other tenants.
In the end, and based on the evidence before me, I find, on a balance of probabilities, that the Landlord herein, on the occasions that security attended at the unit, was exercising its rights accorded to it by the Act and common law, as per Hassan, supra, and such attendances do not amount to harassment as contemplated by section 23 of the Act.
While not directly stated in the application, the Tenant also appears to take issue with the four N5 notices of termination served to her by the Landlord. In light of my findings above, and given the Landlord’s responsibilities to other tenants as affirmed in Hassan, supra, I am unable to find, on a balance of probabilities, that the Landlord here acted unreasonably or harassed the Tenant by serving the four N5 notices.
While there is no definition of “harassment” in the Act. Black’s Law Dictionary, Sixth Edition, page 717, states that harassment involves repeated and continued insulting behaviour that is both unwanted and serves no legitimate purpose. However, I find the succinct commentary of my colleague, in TST-62367-15, more persuasive. In that case the Member states, “generally speaking harassment is usually considered to be a course of conduct that a reasonable person knows or ought to know would be unwelcome”. Here, and as stated above, given that the actions of the Landlord, through its security personnel, were grounded in real and documented complaints about excessive noise emanating from the unit, and, further, given the Landlord’s obligations to other tenants, they do not amount to harassment.
For the foregoing reasons, the Tenant’s application will be dismissed."
_____________________________________
6)
"17. I am also satisfied, that the Landlord has failed to effectively address the Tenant’s complaints about the upstairs tenant’s behaviour. While the Tenant’s allegations of harassment are about the actions of the upstairs tenant, the Landlord has a duty to act reasonably and effectively to address these concerns.
18. The Tenant’s representative cited the case of Hassan v. Niagara Housing Authority [2000] O.J. No. 5650, 48 R.P.R. (3d) 297, File No. 99-002412-DV, where the Divisional Court found that the Landlord can be held liable where the Landlord fails to act with reasonable diligence to effectively correct the harassment of the offending tenants. Simply writing threatening letters or holding meetings between the neighbour and tenants were insufficient, as the harassment continued and even increased. In that case, the tenant was awarded one-half of the rent he paid between the February 1999, being the latest date by which landlord was obliged to take immediate steps to terminate the neighbour’s tenancy, and June 1999.
19. The Tenant’s representative also used Hassan to argue that the Landlord in this case also failed to take reasonable and effective steps to remedy the offending actions and behaviours of offending upstairs tenant, as her actions largely consist of letters/emails to both tenants, and on several occasions advised the Tenant to deal with it herself. I note the Landlord advised the Tenant on once occasion to call 911 herself if she finds the upstairs tenant smoking inside the house.
20. I find, on a balance of probabilities, that the Landlord had entered the Tenant’s rental unit illegally and substantially interfered with her reasonable enjoyment of the rental unit or complex or with the reasonable enjoyment of a member of her household.
21. In spite of some action taken by the Landlord, I also find, that the Landlord has failed to meet her responsibility to act with reasonable diligence to effectively correct the harassment and restore quiet enjoyment to the Tenant, and as such, is liable for the upstairs tenant’s harassment of the Tenant.
22. Taken as a whole, with the breach of a fundamental condition in the rental agreement, the illegal entry by the Landlord, the upstairs tenant, and other people permitted by the Landlord to be on the premises, and the Landlord’s failure to adequately address the Tenant’s complaints of harassment by the upstairs tenant and restore quiet enjoyment to the Tenant, I find that it is appropriate to order the rent abatement to the Tenant of 50% of the rent paid over the 12 month period from February 2017 to and including January 1, 2018, which comes to $5,400.00, as requested by the Tenant."
_____________________________________
7)
"Analysis
24. The parties were provided with the Divisional Court`s decision in Hassan v. Niagara Housing Authority [2000] O.J. No. 5650 (Div. Ct.) (“Hassan”). The law from Hassan and subsequent cases is clear that a landlord who fails to take reasonable steps to address substantial interference with reasonable enjoyment by one tenant by virtue of the behaviour of another tenant can be found to have substantially interfered with the “victim” tenant’s reasonable enjoyment of the premises. This means that the Landlord has the positive obligation to provide a tenant(s) with quiet enjoyment and take the reasonably necessary action against any tenant that denies a neighbouring tenant quiet enjoyment of the premises.
25. In this case, KR has testified that the Landlord’s steps were neither reasonable nor adequate.
26. By contrast, the Landlord’s asserted that he responded to the Tenants’ complaints “prudently and appropriately” and “…did not sit on his hands”.
27. In this context, there seems little dispute between the parties about what occurred. Rather, the parties mainly differ in their interpretation of the events and the appropriate response to SZ’s behaviour.
28. Based upon my review of the oral and documentary evidence provided, I am satisfied on a balance of probabilities that SZ engaged in behaviour at the residential complex which substantially interfered with the Tenants’ (and particularly with that of KR, the remaining Tenant’s) reasonable enjoyment of the unit. This behaviour included creating noise disturbances; leaving bottles and other debris around the residential complex; smoking in his unit (which permeated the Tenants); and engaging in the sale of illegal drugs from the complex. Finally, that behaviour involved – on or about November 7, 2016 – making a threat of bodily harm against KR (and the Landlord).
29. In making the determination above re: reasonable enjoyment, I have relied on the evidence of KR which for the most part, I found credible and persuasive. Further, in this context, the Landlord did not seriously dispute the facts put forward in KR’s evidence, including her allegations that SZ was dealing drugs from the unit; or that SZ had threatened to punch KR in the face and to shoot [the Landlord]. In this context, I have put little weight on the unsworn written evidence of BB, who was not present in the hearing room at the relevant time to be cross-examined.
30. Given my finding above re: substantial interference caused by SZ, there still remains an issue about what, if any, legal responsibility the Landlord’ bears for it. As noted above, a landlord has a duty to take reasonable steps to address substantial interference with reasonable enjoyment by one tenant by virtue of the behaviour of another tenant.
31. I have uncontradicted evidence that the Landlord here took steps in November 2016 to end SZ’s tenancy: he served SZ with an N7 Notice and persuaded him to voluntarily end the tenancy in February 2017.
32. The principal remaining question is whether the steps taken by the Landlord were reasonable in this context to address the substantial interference by SZ.
33. On a balance of probabilities, I do not find that the Landlord’s steps were reasonable in this context based upon the entirety of circumstances extant. I make this finding for two reasons. First, I find KR’s evidence credible that almost from the outset of the tenancy in July 2016, she raised issues with the Landlord about SZ. Nonetheless, as reflected in the emails tendered by the Landlord into evidence – even in November 2016 – after more than 3 month of complaints by KR/the Tenants (and a threat of bodily harm to KR and the Landlord himself) – the Landlord’s primary approach to these issues was to speak to SZ about his behaviour. The general approach of the Landlord’s response to the Tenants’ complaints – in my view – is reflected in his text message to KR on November 9, 2016 at 10:38 a.m. which reads in part:
“I had a couple of long conversations with Serge about the dirty front porch and the smoking issues. I reminded him of his obligations under his lease including the no smoking clause. He assured me that he would address these issues right away. If these problems persist, please let me know. As his landlord, I cannot control his style of life or choose his friends. He is basically a good guy and has been a responsible and responsive tenant. I sincerely hope that these issues are behind us.”
This I find to be unreasonable and inadequate in the circumstances here.
34. Second, I find that the Landlord’s steps to address the Tenants’/KR’s substantial interference to lack any urgency or escalation proportionate to the gravity of the circumstances, particularly in the aftermath of the November 7, 2016 incident in which KR communicated – and the Landlord did not seriously dispute – that SZ had threatened to physically assault her (and then the Landlord).
35. In my view, reduced to their basics, after the threat by SZ to KR on November 7, 2016, KR’s circumstances were that she was a single woman living alone in a unit of house just above a man who had threatened to “…beat the shit out” of her. SZ had the physical strength and proximity to KR to carry out his threats. In my view, KR had reasonable grounds to be concerned for her physical safety.
36. I believe KR’s evidence that she communicated the November 7, 2016 incident to the Landlord on the date it occurred.
37. In my view, the Landlord’s response to a threat to KR’s physical integrity was restrained and equivocal. The Landlord’s muted response to the situation is reflected in his text message to KR dated November 24, 2016 (which the Landlord tendered into evidence) which reads in part:
“….I raised your last two smoking complaints with [SZ] but to no avail. Also [SZ] has advised me that he will not accept the December 17/16 termination date set out in the N7 Notice served on him. [SZ] believes 30 days notice is far too short given the tight rental market, finding suitable accommodations for all his personal belongings/furniture/bicycle equipment etc. and the upcoming Christmas and New Year’s holidays. He would rather proceed to a hearing rather than be forced to move out on December 17th. I have discussed this matter in considerable detail with the Board and my outside lawyer. Based on my discussions with them, I have entered into a N11 with [SZ] wherein he has agreed to end his tenancy on February 1, 2017. While this is beyond the 30 days notice period in the N7, if we proceeded to a hearing (which would require yours and mine attendance), this would require filing a L2, waiting for a hearing date, waiting for the adjudicator to make a decision and waiting for the Sheriff to enforce the adjudicator’s decision. Also, the adjudicator has discretion to give [SZ] a certain amount of time to vacate even if he ruled against him. Given these uncertain timeframes especially during the holiday season, I choose the certainty of an executed N11 compared to proceeding with a hearing which may not necessarily be faster with these uncertain timeframes. [emphasis added].
The Landlord concluded:
“If you do not agree with this decision, I am prepared to offer you and [BB] early termination of your lease with no penalty on at least one week’s notice. I do not want to keep unhappy tenants. This has become a very stressful, unhealthy situation for everyone and I will not stand in your way if you want to seek alternative accommodation.
38. The Landlord’s response in his text-message quoted above is pragmatic, diplomatic and shows some attempt to address the interests of all parties involved (including the Landlord). That said, I do not find it a reasonable response to the substantial interference of the Tenants’ reasonable enjoyment. At this point, SZ had made a clear and explicit threat to physically harm KR. The Landlord’s approach to pursue –in essence – a consensual end to SZ’s tenancy amounted to an essential failure of the Landlord to take seriously KR’s report to the Landlord of her concerns for her physical safety.
39. In my view, the fact that the pursuit of a non-consensual termination of SZ’s tenancy might be difficult or even unsuccessful did not relieve the Landlord of his duty to pursue such a course of action under these circumstances.
40. Further, I do not find that the Landlord’s alternative option of offering the Tenants the opportunity to depart from their tenancy on short notice to be a reasonable alternative to definite action to terminate the SZ’s tenancy.
41. This finding is congruent with the approach taken by the Divisional Court in Hassan, in which the Court wrote:
“Writing threatening letters to the offending tenant, holding meetings with the offenders and offended, is not enough if the harassment continues and, indeed, increases. The landlord had to do something effective, if necessary make application to terminate the tenancy of the offender.”
42. Although the Landlord may feel that his approach was reasonable, under these circumstances, I find that, in concert with the Divisional Court’s reasoning above, the Landlord was required to follow through with an application to terminate SZ’s tenancy. As a result, I find that the Landlord has failed to take reasonable steps to address substantial interference with the Tenants’ reasonably enjoyment as a result of SZ.
43. I make the finding in paragraph 42 above for the period from September 1, 2016. I base this determination on the Landlord’s evidence that it was on or about this date that he spoke to SZ about his behaviour following the Tenant’s complaints and heard SZ’s implausible explanation about the visitors to the residential complex. I find that the substantial interference to reasonable enjoyment began in or about September 1, 2016 and continued until February 5, 2017 (when SZ moved out).
44. The remedy sought is a 50% rent abatement for the period from July 2016; and KR’s prospective moving expenses (she remains in the unit to date). (The Tenants’ request for an order of the Board directing the Landlord to pursue an application re: SZ is now moot).
45. Abatement or rent is a contractual remedy based upon the principle that if you are paying 100% of the rent then you should be getting 100% of what you are paying for and if you are not getting that, then a tenant should be entitled to an abatement equal to the difference in value. The monthly rent for the unit is $1,750.00 per month.
46. Given all of the evidence before me including the nature, extent and frequency of the disturbances; the nature and extent of the steps by the Landlord; and the evidence of KR regarding the impact on the Tenants, and my knowledge of similar cases before the Board, I am of the view that a reasonable abatement of rent to be $1,878.36 which is calculated as follows:
• A 15% rent abatement for the period from September 1, 2016 to November 6, 2016 (66 days x $57.53/day X .15) = $569.55;
• A 25% rent abatement for the period from November 7, 2016 to February 5, 2017 = 91 days x $57.53/day x .25) = $1,308.81."
_____________________________________
8)
"9. The Tenants referred to the case of Hassan v. Niagara Housing Authority, 2001 CarswellOnt 4890 (Div. Ct.), but that case had distinguishable facts not mentioned in the case summary the Tenants filed. Hassan was not a case about a noisy toddler who stayed up too late. In Hassan, the offending tenants’ children engaged in swearing, verbal abuse, assaults on the tenant’s younger children, spraying the female tenant with water when she answered a knock at the door, urinating on the tenants’ basement windows, urinating in a bottle and throwing the contents on the female tenant, breaking the tenants’ car window and other offensive conduct that terrorized the tenants and their children. In Hassan, the landlord wrote letters to the offending tenants and met with them, but took no steps to transfer the offending tenants until several months had passed. The action taken by the landlord in Hassan was neither reasonable nor timely in the circumstances. The facts of Hassan distinguish it from the present case.
10. In the present case, the Landlord met its obligation to the Tenants. The Landlord, through its superintendent, relayed the complaints to the offending tenants, and properly investigated by monitoring the noise level on a nightly basis and speaking to other neighbouring tenants. Even though the results of the Landlord’s investigation did not support the Tenants’ complaints, when the complaints did not cease, the Landlord negotiated a termination of the offending tenants’ tenancy, paid their moving costs and transferred them to another unit as soon as the preparatory maintenance work was completed. The Landlord communicated the resolution to the Tenants. The matter was completely resolved within a month and a half of the first complaint, which was reasonable considering the time needed to investigate the noise complaints and considering that the results of the Landlord’s investigation did not support the Tenants’ version of events.
11. For the foregoing reasons, I find the Tenants did not establish that the Landlord substantially interfered with the Tenants’ reasonable enjoyment of the rental unit by failing to respond in a reasonable and timely manner to their complaints about other tenants."
_____________________________________
9)
"25. A landlord’s duty to address substantial interference with the reasonable enjoyment of a tenant by another tenant was affirmed by the Divisional Court in Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (hereinafter “Hassan”). The Court held, inter alia, as follows:
“It is not that the other tenant's actions are imputed to the landlord, but, rather, the landlord's legal responsibility to provide the tenant with quiet enjoyment that gives rise to the responsibility on the landlord to take reasonable steps to correct the intrusion of the neighbouring tenant on the tenant's right to quiet enjoyment.”
26. In other words, a landlord has the positive obligation to provide the tenant with quiet enjoyment and take the reasonably necessary action against any tenant that denies a neighbouring tenant quiet enjoyment of his premises.
27. On the evidence before the court in Hassan, there was no evidence that justified the finding of the tribunal that the landlord took reasonable steps within a reasonable length of time to restore to the tenant the quiet enjoyment to which he was entitled.
28. Writing threatening letters to the offending tenant, holding meetings with the offenders and offended, is not enough if the harassment continues and, indeed, increases. The landlord had to do something effective, if necessary make application to terminate the tenancy of the offender.
29. Hassan, supra, was cited with approval in First Ontario Realty Corp. v. Appelrouth, 222 A.C.W.S. (3d) 790, wherein the Divisional Court stated, in part, as follows:
“The Board's statement that a landlord can be held liable for the actions of a third party is a misstatement of the law. In order to provide a remedy under s. 29(2), the Act requires the Board to find that the landlord is itself responsible for causing interference with a tenant's reasonable enjoyment. For example, a landlord may be liable for failing to take reasonable steps to stop a tenant from making noise that disturbs other tenants (indeed, the Board correctly stated this proposition earlier at para. 51 of the Reasons). Notably, the landlord in such a situation is not "liable" for the actions of the noisy tenant. Rather, the landlord would be responsible because of its own failure to take reasonably necessary actions to ensure that all tenants could reasonably enjoy the rental premises (Hassan v. Niagara Housing Authority (2001), 48 R.P.R. (3d) 297 (Div. Ct.) at paras. 16-18).”
30. In my view, it follows from Hassan and First Ontario Realty Corp., supra, that a landlord, faced with complaints about offending conduct by one tenant against another tenant, must take reasonable steps, within a reasonable amount of time, to investigate the offending conduct, appropriately address the conduct and, where the conduct does not cease, issue a notice of termination to the alleged offending tenant(s). The service of a N5 notice of termination by a landlord is a significant, and an often effective, first step when the offending conduct does not cease as is alleged here. If the offending conduct continues even after the N5 step is taken, a next step might be the filing of an application with the Board to terminate that tenancy.
31. In this T2 application, I was persuaded by parties’ submissions that the Landlord intended all along to take reasonable and appropriate steps to resolve the noise complaints. The problem is that the steps were not at all timely, neither did the Landlord pursue 1218 to the extent of having a full Board hearing held.
32. Specifically, after the first notice of August 7, 2018, it took the Landlord about three months for the Landlord to issue two N5 notices of termination (one on September 19, 2018, the second on October 12, 2018), resulting in an L2 application being filed on November 19, 2018.
33. From there, through a failed CMH held on January 27, 2019 and an adjourned (on consent) May 2019 hearing, the Landlord and 1218 came for a hearing in August 2019. Instead of going to a full merits hearing, the Landlord opted to settle.
34. In effect, this process took a total of thirteen months to get to the August 20, 2019 mediated settlement. During these months, the Tenants were faced with the same continual undue noise and disturbances coming from 1218, and the Tenants were in communication with the Landlord about all this during this intervening period (TT#3).
35. I note that nothing was presented at the hearing by either party to speak to, or address, the post-mediation timeframe between August 20, 2019 and November 15, 2019, the date when the Tenants moved out.
36. In my view, while the Landlord had intended to take reasonable and appropriate steps to resolve the noise complaints, the fact that the Landlord could not settle the application in January 2019 at the CMH, only to get to the August 2019 hearing when the Landlord then decided to settle, belies the position that the Landlord made reasonable, timely efforts to effectively deal with the Tenants’ ongoing complaints.
37. I cannot guess the Landlord’s full rationale to forego the August 2019 hearing in favour of a mediated settlement. I must rely on LLR’s submission that the Landlord felt their case was simply not strong enough. But whatever the Landlord felt, the Landlord apparently discounted the longstanding, ongoing complaints of the Tenants in favour of singly opting to not have the merits of the L2 application heard. Had the hearing proceeded with the fullness of the Tenants’ submissions as part of the Landlord’s case to make, a fair and proper outcome would have been generated at the hearing, which I believe would have discharged the Landlord’s obligation to provide the Tenants with quiet enjoyment (per Hassan et al.)
38. From the Tenants’ side, I am of the view they most likely felt defeated and spent when they were told the Landlord chose to settle with 1218, especially when 1218 and her boyfriend continued with their undue noise actions afterwards.
39. So, having considered everything as a whole, I find that in respect of 1218, the actions taken by the Landlord were not effective and/or timely.
40. Therefore, I find on a balance of probabilities that the Landlord substantially interfered with the Tenants’ reasonable enjoyment of the rental unit or residential complex by not taking effective, timely steps to investigate and ultimately resolve the Tenants’ noise complaints in respect to 1218.
41. I am satisfied that the Tenants are entitled to a 15% abatement of rent between August 2019 and August 2019 (i.e. 13 months), which totals $3,968.25. It is important to note that the quantum of the abatement of rent awarded is based on the evidence that I was able to consider and give weight to."
_____________________________________
10)
"23. In my opinion, it follows from Hassan and First Ontario Realty Corp., supra, that a landlord, faced with complaints about offending conduct by one tenant against another tenant, must take reasonable steps, within a reasonable amount of time, to investigate the offending conduct, appropriately address the conduct and, where the conduct does not cease, issue a notice of termination. The service of a N5 notice of termination by a landlord is a significant, and an often effective, step where the offending conduct does not cease as is alleged here.
24. In this case, the actions taken by the Landlord were hardly reasonable given the history of incessant complaints by the Tenants.
25. The Tenants began complaining to the Landlord about the excessive aerosol spraying verbally in late August 2014 and continued to so, on a very regular basis by email—sometimes more than once daily, until mid-October 2014. The evidence before me shows that, at best, the Landlord took three steps to address the issue during the approximate three-month material time period. First, the landlord sent a “warning letter” to the Tenant in unit 519 sometime in late September 2014. While the Landlord’s witnesses provided conflicting evidence about whether the letter was issued and, oddly, the letter was not produced, I will give the Landlord the benefit of the doubt. Second, the Landlord spoke to the tenant in unit 519, and briefly entered that unit, in September 2014. Lastly, on October 3, 2014, the Landlord sent an employee “outside to have a look” in an apparent effort to spot the offending aerosol spraying tenant on their balcony.
26. I note that, during cross-examination, TO testified that the Landlord “investigated” units 319, 419, 219, 620, 420 and 320. However, as no particulars or corroborating evidence was provided in this regard, I am unable to determine whether these alleged actions in any way assist the Landlord’s position that it took reasonable steps to address the Tenants’ complaints. As such, I am left with the three steps taken by the Landlord as mentioned above.
27. The written complaints by the Tenants were regular, tenacious and, in my opinion, provided the Landlord with more than sufficient details to allow the Landlord to conclude that there was a bona fide issue in need of attention. On multiple occasions, the Tenants’ emails to the Landlord indicate that the offensive conduct is either ongoing at that very instant or specify the date and time when the conduct allegedly occurred. For this reason I do not agree with the submissions of Landlord’s counsel that the Tenants’ complaints were general and meaningless thereby rendering the Landlord unable to take action. I further disagree, and for the same reasons, that the Tenants’ complaints do not contain sufficient details as per Ball v Metro Capital Property, [2002] O.J. No. 5931 (Div.Ct.).
28. While I am mindful of the fact that the Tenants did not begin pointing to unit 618 as the source of the impugned conduct until early October 2014, this, in my view, does not preclude the Landlord’s duty to investigate. Indeed, in the instant case, the Landlord’s inadequate response to the Tenants’ complaints may very well have led to the parties’ failure to pinpoint the source of the problem until much later. Moreover, the Landlord did not put forth any evidence that, upon receiving the Tenants’ complaints about unit 618, any steps were taken to investigate whether that unit was the source of the problem. In fact, TO acknowledged that unit 618 was not investigated because that unit faces north and away from the Tenants’ unit. This inaction by the Landlord with respect to unit 618, in the face of the Tenants finally pointing to that unit as a potential source of the problem, is especially troubling given the evidence before me that the Landlord had experienced some difficulty with unit 618 in the past. The Landlord’s evidence is that two N5 notices were previously served upon that tenant, arising out of conduct issues, and TO acknowledged, on cross-examination, that she may have previously expressed to the Tenants that she wanted the tenant in unit 618 “out”.
29. I asked TO, whether, in light of the Tenants’ complaints, the Landlord considered posting notices in the common areas of the residential complex alerting tenants generally about the Tenants’ complaints and asking tenants to refrain from engaging in the offending conduct and TO stated that the Landlord did not so consider. I then asked TO if the Landlord had posted notices in the past to address other issues and TO testified that notices had been posted asking people, for example, not to feed the animals in the exterior areas of the complex.
30. In my view, and as in Hassan, supra, the Landlord in this case failed to take “effective” steps to investigate or otherwise address the Tenants’ complaints during the material time. In particular, the inadequacy of the Landlord’s response includes its failure to attend at the Tenant’s unit to assess the nature of the problem and alleged impact thereof on the Tenants. TO’s sole attendance at the unit for five minutes falls well short of what was reasonably required in the circumstances. Further, and as stated above, the Landlord did not considered posting notices in the common areas of the residential complex alerting tenants generally about the Tenants’ complaints and asking tenants to refrain from engaging in the offending conduct. Such action, while it may not have resolved the issue, would have been an inexpensive and prudent first step in addressing the issue and would, further, be indicative of the Landlord taking the Tenants’ complaints seriously. In view of the uncertainty surrounding the source of the offending conduct at the outset of the Tenants’ complaints, another relatively inexpensive option available to the Landlord was to place notices in the 124 tenant mailboxes in the residential complex notifying tenants generally of the issue. There was no evidence before me that the Landlord considered any such course of action.
31. In my view, the Landlord in this case further failed to take effective steps to investigate or otherwise address the Tenants’ complaints by not speaking to other tenants, apart from the Tenant in unit 519 on one occasion, about the alleged conduct. Even though the results of the Landlord’s investigations may not have supported the Tenants’ complaints, such results would, at least, have provided the Landlord with evidence of steps taken to present at a Board hearing—something the Landlord, who had access to legal counsel during the material time, ought to have known was a possibility down the road.
32. I must also note that the Tenants’ email sent to the Landlord on October 3, 2014, stating “I give you guys an A+ for effort” does not persuade me that the Landlord was taking effective steps to investigate or otherwise address the Tenants’ complaints. The said email was sent approximately one week after VA informed the Tenants that she would be calling the Landlord’s legal counsel and that TO would be serving a N5 notice upon the tenant in unit 519 the next day and advising her to “stop immediately or [sic] eviction process will follow”. The N5 notice of termination was never served and the Tenants’ communication with the Landlord soon returned to complaints about the ongoing offensive conduct.
33. In Hassan, supra, the Court found letters to the offending tenant and holding meetings with the offenders and offended to fall short of the required landlord response to address situations where a tenant denies a neighbouring reasonable enjoyment. Here, the Landlord’s actions, in my view, were even less adequate and border on an abdication of the Landlord’s responsibilities.
34. While I am of the opinion that the Landlord’s failure to investigate the Tenants’ complaints is, in the circumstances, sufficient to establish a breach of its obligations to the Tenants pursuant to s. 22 of the Act, the Landlord’s failure to serve a N5 notice to terminate the tenancy of the alleged offending tenant—in unit 519 and, later, unit 618, exacerbates that breach.
35. I am of the view that the Landlord had more than sufficient evidence and cause to serve an N5 notice of termination upon the tenants mentioned in the Tenants’ complaints. The Tenant’s complaints were very regular, serious and contained sufficient particulars about the nature of the conduct complained of—including dates and times and, accordingly, amount to “evidence” and provide the Landlord with reasonable and probable cause to serve the N5 notice of termination. Such action by the Landlord would have put the alleged offending tenant(s) on notice that, if they did not take steps to cease the offensive conduct within seven days, the Landlord could bring an application to the Board to terminate their tenancy. The Landlord did not offer evidence about why it chose not pursue this course of action, which I find was available.
36. Landlord’s counsel submitted that “it was always unit 618”, however the Landlord was unable to take action until February 7, 2015 when the police executed a search warrant at that unit. In my view, had the Landlord taken reasonable steps to investigate the Tenants’ complaints such as posting notices and speaking to tenants in the complex—even if only to the tenants on the same floor as the Tenants, which includes unit 618, then the Landlord would, in all likelihood, have ascertained the true source of the offending conduct and be in a position to appropriately serve a N5 notice.
37. I am unable to agree with Landlord’s counsel that the Landlord would be placed in legal jeopardy by serving a N5 notice of termination on the alleged offending tenants in the event that, as Landlord’s counsel put it, “the Landlord gets it wrong”. I do, however, agree with Landlord’s counsel that it would be wrong to serve a N5 notice without investigating. If the Landlord herein had taken reasonably necessary action to address the Tenants’ complaints, including doing even a cursory investigation, such action would not be interference with the reasonable enjoyment of the other tenants or amount to harassment. Reasonably necessary action rules out taking frivolous complaints seriously. There is no evidence before me that the Landlord viewed the Tenants’ complaints as frivolous. Indeed, VA testified that she never suspected that the Tenants were not telling the truth. Further, and as stated above, the Landlord had more than ample evidence, which evidence in my estimation amounts to reasonable and probable cause, to serve a N5 notice of termination in this case. As well, a N5 notice is a voidable notice where served tenants are accorded the opportunity to void the notice and continue the tenancy by ceasing the offending conduct. In the circumstances the Landlord was on solid ground, and sufficiently sheltered from legal liability, to serve a N5 notice of termination, first upon the tenant in unit 519 and, later, upon the tenant in unit 618.
38. The serving of a N5 notice of termination would, in all likelihood, have put an end to the matter by the offending tenant(s) ceasing the impugned conduct or, in the alternative, allowing the Tenants to prove their case, before the Board, on a balance of probabilities or, failing which, having their case dismissed. Either outcome would have provided closure to the parties and I must note that, based on my experience with, and knowledge of, similar cases that have come before the Board, it is not uncommon for landlords to serve a tenant with a N5 notice of termination based on far fewer complaints by offended tenants.
39. Lastly, not all landlord applications, based on N5 notices of termination, meet with success at the Board. Landlord’s counsel’s submission that landlords who “get it wrong” are exposed to legal liability implies that a landlord should only serve a N5 notice of termination upon being certain of the offending conduct and, ultimately success at hearing. That threshold is too high in my view. As stated, all that is required is that a landlord has reasonable and probable cause arising out of a sensible investigation and it is not for a landlord to usurp the jurisdiction of the Board by assessing the sufficiency of evidence in deciding whether or not to serve a N5 notice and then proceed with an application to the Board.
40. Based on the evidence before me, I find, on a balance of probabilities, that the Tenants initially informed the Landlord about the offensive conduct sometime in late August 2014 and continued to regularly inform the Landlord about the noise problem until mid-October 2014, and that the Landlord did not take effective steps to investigate and/or address the problem. I further find that the Landlord failed to meet the Landlord's obligations under Section 22 of the Act by not taking effective steps to investigate the Tenants complaints and, further, by not serving the alleged offending tenants with a N5 notice of termination.
41. As mentioned above, Landlord’s counsel submitted that, as the Landlord offered to transfer the Tenants to another unit and that, as the offer was rejected, the Tenants have “disallowed themselves” a remedy. Landlord’s counsel also submitted that the Tenants’ account is untrue, implausible and manufactured to get out of their lease.
42. In connection with the Tenants’ rejection of the Landlord’s offer of a transfer to another unit in the complex, while I do not agree that such rejection has effectively abrogated the Tenants’ right to a remedy, it is a factor that may be considered in determining the quantum of any remedy awarded in light of the parties’ duty to mitigate pursuant to section 16 of the Act. Here, Tenant’s counsel submitted that, given the “previous inaction” on the part of the Landlord in addressing the Tenants’ complaints it was not unreasonable for the Tenants to refuse the Landlord’s offer. I agree with Tenants’ counsel. Further, the Landlord’s offer came at a time when, due to the Landlord’s failure to investigate the Tenants’ complaints, the source of the disturbing conduct was unclear and, as such, a move to another unit may, in the end, have been costly, inconvenient and, ultimately, pointless. For these reasons, I will not draw an adverse inference in connection with the Tenants’ rejection of the Landlord’s offer.
43. With respect to the Landlord’s position that the Tenants’ account is a fabrication and simply designed to get out of their lease, I am not persuaded by this submission. The Landlord submitted a letter, penned by the Tenants, to the Landlord and dated September 30, 2014. The said letter notifies the Landlord that the Tenants will be vacating the unit, effective November 30, 2014 and, shortly thereafter, the Landlord agreed to terminate the tenancy in accordance with the Tenants’ notice. Be that as it may, the Tenants persisted, for another two weeks, in their complaints, to the Landlord, about the offensive aerosol spraying until October 15, 2014, which I find inconsistent with the contention that the Tenants’ account was simply a ruse to get out of the lease.
44. Furthermore, and perhaps more important, I have been presented with no evidence that contradicts the Tenants’ evidence going to the central elements of their account about the history, nature or extent of the excessive aerosol spraying in the complex. Landlord’s counsel was provided with an unrestricted opportunity to cross-examine the Tenants on all aspects of their claims. In the end, the Tenants’ viva voce testimony and documentary evidence was not shaken on cross-examination. I found both Tenants to be credible witnesses. The evidence of the Tenants was internally consistent and was not contradicted by any other evidence before me. In the circumstances, I am obligated to apply the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a witness swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness.
45. Lastly, the Tenants’ application claims that, shortly after taking possession of the unit, they began being disturbed by the high number of guests visiting unit 618. At the conclusion of the hearing, next to no evidence had been presented in connection with the alleged disturbance/noise issue as the parties had focused exclusively on the issue of the excessive spraying of perfumed aerosols. Given the insufficiency of evidence in this connection—especially as such relates to particulars and impact, I am making no determinations in this regard and no Order will issue.
Remedies
46. The Tenants’ application seeks the following remedies:
a) Termination of the tenancy, effective November 1, 2014;
b) An abatement of 50% of the rent, for four months, in the sum of $2,460.00;
c) $1,120.00 for moving expenses, connection fees and mail forwarding;
d) $2,080.00 for the increased rent the Tenants have incurred and will incur; and
e) The return of the last month’s rent deposit in the amount of $1,230.00.
Termination of the Tenancy
47. Termination of a tenancy is regarded as a remedy of last resort and is only appropriately considered where the nature of an issue, or the cumulative nature and effect of more than one issue, renders continuation of a tenancy unsustainable.
48. While the issues raised in the Tenants' application are serious, and the Landlord’s response was generally lacking, in my view the issues do not rise to the level required to lead me to conclude that the continuation of the tenancy was untenable.
49. The Tenants’ evidence is that they were affected by the excessive spraying of perfumed aerosols “every time we went on the balcony and sometimes inside”. Tenant JL testified that while in the unit she sometimes felt nauseous, experienced a sore throat and suffered from “migraine headaches every four days”. This was the extent of the Tenants’ evidence about the impact of the offensive conduct on their lives while inside the unit. Further, the Tenants did not provide any medical evidence of a link between the alleged maladies and the aerosol spraying complained of. Indeed, the Tenants did not provide corroborating medical evidence that JL suffered from the stated conditions. The Tenants were represented by able legal counsel and a letter from JL’s physician in this regard would have been helpful, yet no such evidence was provided.
50. Tenant AL testified that the offensive odour was only detectable inside the unit when the windows were open. He added that JL is allergic perfumed aerosols and that the Tenants do not use air fresheners. Again, the Tenants did not furnish any medical evidence to corroborate AL’s testimony that JL is allergic to perfumed aerosols and I am, therefore, unable to make a finding in this regard.
51. Based on the evidence before me, I find, on a balance of probabilities, that the impact of the offensive conduct on the Tenants was mainly restricted to the occasions when they ventured onto the balcony of the unit and occasionally when the windows were open. There is no evidence before me that the residential unit proper was in any way uninhabitable at all material times. For these reasons, I am unable to find that the Tenants were forced to move out of their unit because of the conduct of the Landlord. The Tenants are, consequently, not entitled to an order terminating the tenancy on that basis or an order for compensation for their moving expenses, or any rent differential with their new living accommodations. However, an Order for abatement of rent is warranted in the circumstances and for the reasons that follow.
52. As stated, based on the evidence before me I find, on a balance of probabilities, that the impact of the excessive spraying of aerosols on the Tenants was, for the most part, restricted to the occasions when they used the balcony of the unit, which they did fairly regularly as both Tenants testified that they are smokers and used the balcony for that purpose.
53. Given the duration and nature of the problem as described by the Tenants and the Landlord’s entirely inadequate investigation of the issue, all of which is moderated by the paucity of evidence going to the impact of the issue on the Tenants while they were inside the unit, I am satisfied the Tenants are entitled to an abatement of 25% of the rent for the period from August 20, 2014 (the approximate date when the Tenants say they initially complained to the Landlord) to November 1, 2014 (73 days), which totals $738.03.
54. I considered awarding a lower amount, as the balcony area, which the totality of the evidence indicates was the main, if not exclusive, area of the unit impacted by the excessive spraying, is likely not equal to ¼ of the total area of the unit. However, I decided to award a somewhat higher amount because the evidence before me shows that the excessive spraying considerably impacted the Tenants as they more than likely used the balcony several times per day on a daily basis. Further, in the face of numerous email complaints by the Tenants, some of which border on pleas to the Landlord to take action, the Landlord took essentially no action to investigate the source of the problem or otherwise address the Tenants’ complaints."
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Some other LTB rulings that may be worth reading:
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