After our previous post on minimum temperature standards, we received some questions and comments on the interplay between Ontario Regulations and local municipal heat bylaws.
Some raise a concern that RTA section 224 seemingly states that if there are any municipal heat bylaws applicable to a rental unit, then Ontario Regulations on heat can be ignored altogether and only local municipal standards need to be followed. Is it true?
- First, many LTB rulings apply Ontario Regulations in practice, even if there are municipal heat bylaws covering the same unit (as can be seen in some LTB examples below).
- Second, there is the general practical issue that local municipal bylaws that we looked at are set at at least 20 C (which is already the standard in Ontario Regulations) or higher (see a summary with links to municipal heat bylaws here), so the higher standard would end up being applicable in practice. Please let us know if you find any municipal bylaws with a standard that is lower than 20 C. O. Regs are also instructive on how to measure temperature if the relevant municipal bylaws do not cover that aspect.
- Third, there is an important technical consideration that we should pay attention to: A careful reading of RTA section 224 shows that this section applies to "prescribed maintenance standards", therefore it is specifically referring to O. Reg. 517/06 ("Maintenance Standards" under the RTA). But there is no reference to O. Reg. 516/06 ("General", which covers 'Vital Services') in RTA section 224.
"MAINTENANCE STANDARDS
Application of prescribed standards
Local municipalities
224 (1) The prescribed maintenance standards apply to a residential complex located in a local municipality and the rental units located in the residential complex if,
(a) there is no municipal property standards by-law that applies to the residential complex; or
(b) there is a municipal property standards by-law that applies to the residential complex and the prescribed circumstances apply. 2016, c. 25, Sched. 5, s. 5."
"Maintenance standards and compliance
2. (1) This Regulation prescribes the maintenance standards for the purposes of subsection 224 (1) of the Act. O. Reg. 517/06, s. 2 (1).
(2) Except as otherwise provided, the landlord shall ensure that the maintenance standards in this Regulation are complied with. O. Reg. 517/06, s. 2 (2)."
"Maintenance of Room Temperature" vs. "Vital Services"
1)
O. Reg. 517/06 ("Maintenance Standards") states in section 15 (under "Heating"):
"Maintenance of room temperature
15. (1) Heat shall be provided and maintained so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius. O. Reg. 517/06, s. 15 (1).
(2) Subsection (1) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat. O. Reg. 517/06, s. 15 (2).
(3) Every residential complex shall have heating equipment capable of maintaining the temperature levels required by subsection (1). O. Reg. 517/06, s. 15 (3).
(4) No rental unit shall be equipped with portable heating equipment as the primary source of heat. O. Reg. 517/06, s. 15 (4).
(5) Only heating equipment approved for use by a recognized standards testing authority shall be provided in a room used or intended for use for sleeping purposes. O. Reg. 517/06, s. 15 (5)."
"Definition of “vital service”
4. (1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service. O. Reg. 516/06, s. 4 (1).
(2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius. O. Reg. 516/06, s. 4 (2).
(3) Subsection (2) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat. O. Reg. 516/06, s. 4 (3)."
RTA section 216 further adds that the council of a local municipality may pass bylaws about vital services.
So it is important to note that the 20 C requirement is featured in both section 15 (under "heating") of O. Reg. 517/06 (which RTA section 224 is referring to) and also in section 4 ("vital services") of O. Reg. 516/06.
O. Reg. 516/06 provides definition of "vital services" which landlords cannot deliberately interfere with, as per RTA section 21 (this is also repeated in LTB Interpretation Guideline 6 ("Tenant Rights")). And this issue is somewhat different from the issue of landlord's maintenance duties under RTA section 20, which can also include heating issues.
LTB Interpretation Guideline 5 (which refers to RTA section 20, not to RTA section 21) states:
"Some tenants may wish to use the provincial maintenance standard, even though their own municipality has a property standards by-law. However, section 20 requires landlords to comply with standards and this must be read as meaning only those standards which are enforceable for that complex."
LTB Brochure: Maintenance and Repairs further explains the interplay of municipal and provincial standards for RTA section 20 (maintenance) purposes (not to be confused with RTA section 21, which is about deliberate interference with vital services):
"Meet property standards
A landlord must make sure that the rental property meets health, safety, housing and maintenance standards. These standards are set out in municipal bylaws or provincial maintenance standards.
Municipal Bylaws: Many communities in Ontario have bylaws that set minimum standards for the upkeep and maintenance of a rental property. A landlord must maintain a rental property to the minimum standards. Your local municipal government is responsible for enforcing these bylaws.
Provincial Maintenance Standards: Some communities do not have municipal bylaws. In those areas, the landlord must follow the provincial maintenance standards set out in the Residential Tenancies Act regulations. The municipality is responsible for enforcing the provincial maintenance standards."
Quite a few LTB rulings appear to somewhat conflate these items, for example, it is not that uncommon to see O. Reg. 516/06 s. 4 being used as the test under T6 claims (about maintenance) which do not allege actual deliberate interference with supply of vital services. So I believe that a sensible and "safe" approach (from a landlord's perspective) might be what we see in Vice Chair Ruth Carey's ruling in TET-97181-18 (Re), 2019 CanLII 86991 (ON LTB), <https://canlii.ca/t/j2gn8>, i.e. complying with both municipal and provincial standards and following the higher standard (and also being ready with RTA s. 224 argument where it becomes applicable under maintenance, but get legal advice if you face this scenario).
"23. Pursuant to s. 4 of the O. Reg. 506/16 heat is defined as a vital service between September 1 to June 15 of each year and the primary source of heat in the residential complex must be sufficient to heat all rooms and areas used by the Tenant to a minimum of 20 degrees.
24. Where a municipality has a heating by-law that requires a higher standard than 20 degrees, the higher standard applies. In the municipality where this rental unit is located there is a heating by-law which requires heat of at least 21 degrees Celsius. So that is the legal standard the Landlord must meet."
Please share your thoughts.
Below are some examples of LTB rulings that cite O. Reg. 516/06 s. 4 (vital services) and O. Reg. 517/06 s. 15 (maintenance of room temperature) in different scenarios. Get legal advice for your situation.
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Ruth Carey's ruling which states at. para. 24 "Where a municipality has a heating by-law that requires a higher standard than 20 degrees, the higher standard applies."
TET-97181-18 (Re), 2019 CanLII 86991 (ON LTB), <https://canlii.ca/t/j2gn8>
"The Heat Issue
8. The Tenant’s complaint about lack of heat is actually raised in two contexts. First, she alleges there is a maintenance problem – something is wrong with the furnace or the ductwork and the unit is inadequately heated. Second, the Tenant alleges her complaints about heat triggered a series of communications from the Landlord’s Son that constitute harassment and/or discrimination.
9. With respect to the first branch of the Tenant’s complaint, namely that the furnace or ductwork is in a state of disrepair, the evidence is inconclusive as to whether or not there is actually something wrong with the furnace or ductwork.
10. I say this in part because neither party produced reliable records of the actual temperature in the rental unit.
11. At some unknown point in time the Landlord’s Son provided a thermometer that was placed on the Tenant’s refrigerator. The Landlord’s Son says this thermometer did not in fact work. The Tenant is not so sure that was the case.
12. The Tenant provided photographs of this thermometer she says she took on March 16, March 18, December 7 and December 11, 2018. The photographs indicate on each occasion the temperature was exactly the same - 14 degrees Celsius. The photographs are so identical in appearance it actually looks like four copies of the same photograph. I would also observe that the chances of the Tenant taking four photographs on four different dates and the temperature being identical are fairly slim, so I accept the assertion of the Landlord’s Son that the thermometer on the Tenant’s refrigerator did not actually work.
13. I would note for the record and as stated in the hearing room, a thermometer should not be placed on a refrigerator or on any appliance to measure ambient room temperature. Pursuant to subsection 4(2) of Ontario Regulation 516/06 temperature readings should be taken 1.5 metres above floor level and one metre from any exterior walls in all habitable rooms and in any area intended for normal use by a tenant.
14. After the Tenant complained to the Enforcement Branch of the Ministry of Housing about lack of heat, the Landlord’s Son installed some sort of remote monitoring system. Again, it was placed on or behind the refrigerator. The Landlord produced no records of the results of this monitoring. The Landlord’s Son simply says the temperature was always in excess of 21 degrees Celsius.
15. Further, neither party produced a witness who is a heating technician, any report from a contractor about the heating system, or a witness who properly measured the temperature.
16. So I do not if anything is wrong with the furnace or ductwork.
17. That being said, the Landlord’s response to the Tenant’s complaints of lack of heat was wholly inadequate.
18. The Tenant says she first started complaining about lack of heat the same day she moved in. The Landlord responded by providing her with a space heater. In addition, adjustments were made to the vents by the Landlord’s Son which seemed to help but the Tenant says the problem re-occurred and has persisted.
19. The Tenant says she used the portable heater given to her by the Landlord that the Landlord gave to her on or about February 26, 2018 but it was not sufficient for her needs so she purchased one of her own. The one she purchased is sufficient for her needs but she kept asking about the heat because she wants adequate heat to come from the vents and not from a portable heater.
20. In March of 2018 the Landlord had a technician come to look at the furnace. The Tenant says the Landlord’s Son told her that the technician recommended the Landlord install a new furnace but text messages between the Tenant and the Landlord’s Son dated March 18, 2018 indicate the technician recommended the Landlord install baseboard heaters. No baseboard heaters were installed.
21. And as stated above, the Landlord has never taken accurate or reliable temperature readings and simply asserts the temperature is above 21 degrees Celsius.
22. That is not good enough.
23. Pursuant to s. 4 of the O. Reg. 506/16 heat is defined as a vital service between September 1 to June 15 of each year and the primary source of heat in the residential complex must be sufficient to heat all rooms and areas used by the Tenant to a minimum of 20 degrees.
24. Where a municipality has a heating by-law that requires a higher standard than 20 degrees, the higher standard applies. In the municipality where this rental unit is located there is a heating by-law which requires heat of at least 21 degrees Celsius. So that is the legal standard the Landlord must meet.
25. Pursuant to section 22 of the Act:
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.
26. It is substantial interference with a tenant’s reasonable enjoyment of a rental unit for a landlord to fail to respond reasonably to a tenant’s disrepair complaints.
27. In other words when the Tenant complained of lack of heat during the heating season, the Landlord had a positive obligation to accurately measure the ambient temperature in each of the rooms of the rental unit as produced from the main heating source and ensure the temperature was at least 21 degrees Celsius. If it was not, the Landlord then had an obligation to implement a solution and check to ensure the solution actually worked.
28. As a result, although the evidence is inadequate to determine whether or not the Landlord is in breach of s. 20(1) of the Act, I am satisfied the Landlord breached s. 22 of the Act by failing to respond appropriately to the Tenant’s complaints of lack of heat.
29. The second branch of the Tenant’s complaints about lack of heat concerns the events that occurred after she warned the Landlord’s Son that she was not prepared to go a second winter without adequate heat.
30. For my purposes here, it is not really necessary to determine whether or not the events the Tenant complains of flow from her heating complaints or not.
Inspections and Threats of Eviction
31. The Tenant says that as a result of her requests that the heat issue be addressed for the coming winter of 2018 to 2019 she received an e-mail from the Landlord’s Son on October 16, 2018.
[...]
It is ordered that:
[...]
7. The Landlord shall forthwith take temperature readings in the rental unit in the manner described in s. 4 of Ontario Regulation 516/06. If the readings indicate the heat in the unit when solely heated by the furnace is less than 21 degrees Celsius, the Landlord shall retain the services of an appropriate qualified contractor and effect any necessary repair or recommendations to ensure the heating system alone is capable of heating the rental unit to a minimum temperature of 21 degrees Celsius."
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William Burke's ruling applies O. Reg. 517/06 to a maintenance issue because "the parties were not aware of a municipal property standard bylaw that may be in effect for this area":
TET-72280-16 (Re), 2017 CanLII 48844 (ON LTB), <https://canlii.ca/t/h53b5>
"3. The parties were not aware of a Municipal Property Standards Bylaw that may be in effect for this area. Therefore, I look to Ontario regulation 517/06 which forms part of the Residential Tenancies Act, 2006. Section 11 of that regulation addresses the issue of hot and cold running water. That section states the Landlord shall supply safe equipment and hot and cold running water at a minimum temperature of 43 degrees Celsius. However, that section does not address any flow rate. In order to determine the flow rate issue I also am required to look at section 31 (1) of that regulation. That section states the water pressure shall be provided sufficient for normal household use. This becomes a subjective term and since the Tenant is unable to establish the fact the flow rate is not normal I cannot award anything for this issue. The Tenant did not have any details as to how much water was being supplied.
4. The Landlord argued that he is not required to maintain the roof of a structure on the property. He stated that shed is old and does not form part of the tenancy agreement. For this I look to the definition of residential complex in the RTA. That defines the complex as including the buildings on the property which are used by the Tenant. In this case the building existed prior to the tenancy and is located on the same lot. Therefore, the Landlord owns this building and is required to maintain it accordingly.
5. Section 7 (1) of regulation 517/06 states the Landlord shall maintain the roof of a building in a water tight condition. The Tenant was not seeking any compensation for the roof leaking she only wants the Landlord to fix the roof. Based on this request I will be ordering the Landlord to fix the roof of that structure."
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William Burke's ruling states that, under RTA section 224, O. Reg. 517/06 ("maintenance standards") does not apply to maintenance, where local municipal bylaws exist on the same maintenance issue:
TET-28790-12 (Re), 2012 CanLII 98073 (ON LTB), <https://canlii.ca/t/fzzb1>
"1. The tenancy agreement between the parties clearly states that there is no hydro, running water or other utilities that will be provided by the Landlord. At the onset of the tenancy the parties were all aware that there were no services provided by the Landlord and that the rental unit was “an off the grid house”. Section 21 (1) of the Residential Tenancies Act, 2006 states that a Landlord shall not withhold the supply of a vital service that the Landlord is obligated to supply under the tenancy agreement and that the Landlord shall not deliberately interfere with the reasonable supply of any vital service. In this matter the Landlord was and is not required to provide the utilities. Therefore, the Landlord cannot withhold a service he is not obligated to provide. If the system provided by the Landlord does not function that becomes a maintenance issue. The system is there and all the components are complete but it doesn’t work. The Landlord has not interfered with the supply of a vital service and the Landlord has not withheld a vital service he is required to supply under the tenancy agreement.
2. Section 4 of the RTA states that a provision in a tenancy agreement that is inconsistent with the RTA is void. The presence of the clause that the Landlord is not responsible for the supply of the utilities does not constitute a clause that is not consistent with the RTA. There are several tenancies where the Tenants are required to ensure the utilities are supplied and maintained.
3. The parties relied on Ontario Regulation 517/06 of the RTA for the required maintenance standards and the Landlord’s obligation to supply specific services. Section 2 of that regulation states that the prescribed maintenance standards apply for the purpose of section 224 of the RTA. Section 224 of the RTA states that the prescribed standards only apply if there is no Municipal Property Standards By-law in place. In this case there is a Municipal Property Standards By-law in place so the standards in the regulation do not apply."
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I.
O. Reg. 516/06 s. 4 is used for RTA s. 21 (deliberate interference with vital services):
Guy Savoie's ruling:
TST-62396-15 (Re), 2015 CanLII 69412 (ON LTB), <https://canlii.ca/t/glvbr>
"24. The portion of the Tenant’s application which claims that the Landlord has withheld or deliberately interfered with the reasonable supply of a vital service namely heat is dismissed. As I stated at the hearing, subsection 4(2) of the Ontario Regulation 516/06 (‘Regs.’) requires that the Landlord maintain the ambient room temperature to a minimum of 20 Celsius, 1.5 metres above the floor and one metre from exterior walls in all habitable space. Although the Tenant claims his unit was cool during the winter months he took no temperature readings and as such has failed to meet the required burden of proof set out in subsection 4(2) of Regs.
25. There is no dispute that the when the Landlord undertook to replace the boiler there was no heat for one day in the residential complex. When a landlord undertakes to replace the heating system, I am not satisfied that could be considered to be deliberately interfered with the reasonable supply of a vital service because there is no malice intent."
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Guy Savoie's ruling:
TST-44891-13 (Re), 2015 CanLII 22323 (ON LTB), <https://canlii.ca/t/ghdsw>
"Vital Services:
25. The Act prohibits a landlord, superintendent or agent of the landlord from withholding or deliberately interfering with a reasonable supply of a vital service. In accordance with section 4 of the Ontario Regulation 516/06 (the ‘Regulations’):
(1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service.
(2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius.
(3) Subsection (2) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat.
26. It was the evidence before me that the thermostat that regulates the heat to the complex is on the first floor and is not accessible to the Tenant. It was the Tenant’s position that the Landlords had shut the heating system off in the complex during a visit on April 15, 2013 because it was warm outside. The Landlords did not dispute the Tenant’s evidence. The Tenant notified the Landlords on or about April 20, 2013 that the heat within the common area kitchen was 17 degrees Celsius. On April 25, 2013, the Tenant initiated a complaint with the Investigations and Enforcement Unit of the Ontario Ministry of the Municipal Affairs and Housing. A complaints officer informed the Tenant that the Landlords were under the impression that there was sufficient heat in the complex and would be verifying the temperature readings in the complex shortly. The issue was not corrected until April 27, 2013.
27. It was the Tenant’s position that the issue of heat was addressed by the result of warming weather rather than the actions of the Landlord. Interior temperature readings taken by the Tenant during the period were in the 14 -18 C range.
28. In addition, for a two day period between September 13, 2013 and September 15, 2013, the ambient temperature in the common area kitchen unit was between 18 – 19 degrees Celsius.
29. I find on the balance of probabilities that the Landlords effectively shut the heating system off in the complex on or about April 15, 2013 believing it was no longer required. The Tenant has established that the Landlords have withheld a reasonable supply of a vital service.
30. Having regard for the impact statement of the Tenant and the temperature readings recorded, I am of a view that a reasonable rent abatement is $50.00 which represents a 25% abatement for 7 days in April, 2013 and approximately a 5% abatement for the period in September, 2013."
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Kevin Lundy's ruling:
SWT-96828-16 (Re), 2017 CanLII 9488 (ON LTB), <https://canlii.ca/t/gxq8m>
"6. I find that the Landlord's agent withheld a reasonable supply of a vital service, care service, or food that the Landlord was obligated to supply under the tenancy agreement or deliberately interfered with the reasonable supply of two vital services, specifically hot water and heat. Subsection 4(1) of O. Reg. 516/06 defines heat as a “vital service” for the purpose of subsection 2(1) of the Act from September 1 to June 15."
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Ieva Martin's ruling:
CET-11369-11 (Re), 2012 CanLII 86665 (ON LTB), <https://canlii.ca/t/fvtn8>
"13. [...] Subsection 4(1) of Ontario Regulation 516/06 of the Act states, “For the purpose of definition of “vital service” in subsection 2 (1) of the Act regarding interpretation, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service” which the Landlord cannot withhold or interfere with and Subsection 4(2) states that the heat must be at least 20 degrees Celsius."
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Brian Cormier's ruling: about allegations of interruptions due to landlord's alleged failure to pay the utility account.
NOT-01194 (Re), 2009 CanLII 77999 (ON LTB), <https://canlii.ca/t/283dt>
"1. The Tenants stated that the supply of water to their rental unit was interrupted on September 17 & 18, 2008 then again on September 25 & 26, 2008. The Tenants alleged that the water was shut because the Landlords had failed to pay the utility account. The Tenants offered no evidence in support of their claim that the utility account was in arrears.
2. The Tenants claimed that hot water was unavailable from June 25, 2009 to June 30, 2009. The Tenants acknowledged that a new hot water tank was installed. I determine that the lack of hot water was due to a maintenance issue.
3. The definition of ‘vital service’, under sub-section 2(1) of The Residential Tenancies Act 2006, includes heat.
4. The Tenants claimed that the rental unit heat was cut off from September 29, 2008 to October 3, 2008 because of utility account arrears. The Tenants offered no evidence in support of their claim that the utility account was in arrears.
5. The Tenants stated that heat has once again been unavailable in their rental unit since May 11, 2009 (to present day).
6. Ontario Regulation 516 06 sub-section 4(1) states “For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service”.
7. Sub-section 4(1) of Ontario Regulation 516 06 regulation exempted Landlords from the requirement to provide heat from June 15, 2009 to September 1, 2009. I am aware that air temperature readings during September 2009 have been consistently above normal (no heat required). The Tenants offered no evidence of temperature readings in their rental unit for any dates prior to June 15, 2009.
8. I find no merit in any of the Tenants’ claims that the Landlords withheld a vital service."
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Lisa Del Vecchio's ruling:
CET-71756-17 (Re), 2018 CanLII 42804 (ON LTB), <https://canlii.ca/t/hs1bd>
"Vital Services
42. The Tenant stated that it was very cold in her unit. The thermostat is located in the basement of the residential complex and controlled by the Landlord or the basement tenant. It was not disputed that the Landlord set the thermostat for winter around October 4, 2017 to 16.6 degrees Celsius from 10:00 a.m. to 5:00 p.m. and 20 degrees Celsius at other times. Also according to the Tenant, in the summer months, the Landlord set the thermostat high. Therefore, according to her, it was too warm/hot in the summer and too cold in the winter. The Tenant submitted that the minimum temperature in winter must be 20 degrees Celsius.
43. Subsection 4(1) of Ontario Regulation 516/06 (the ‘Regulation’) states the following:
For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service.
44. Subsection 4(2) of the Regulation states the following:
For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius.
45. Based on the evidence before me, I am satisfied that the Landlord deliberately interfered with the vital service of heat in October and November 2017. There was no dispute that the thermostat had a lock box on it, only accessible by the Landlord during this time. The Landlord set the thermostat in October 2017 to a temperature setting lower than the required 20 degrees Celsius in accordance with the Regulation.
46. The Tenant stated that she and her son were cold. She submitted a report of the outside temperature readings for October and November 2017 in her evidence. However, the Tenant did not provide specific evidence of which dates during this timeframe the temperature was less than 20 degrees Celsius in her unit. There was also no evidence provided that she complained to the Landlord regarding the temperature in her unit. She sent a text to the basement tenant asking for the temperature reading on November 2, 2017. His reply was 69 degrees Celsius but set to 62 degrees Celsius. The Tenant also acknowledged that she has a secondary heating source that she used regularly.
47. While although I am satisfied that the Landlord deliberately interfered with this vital service, the evidence before me was insufficient to find that there was any significant impact on the Tenant. Consequently, the rent abatement requested by the Tenant is denied. There were no complaints sent to the Landlord regarding the temperature even though these parties regularly text messaged one another during this time frame regarding other issues. And the Tenant had the benefit of an electrical heat source.
48. The issue with the temperature in the rental unit being too warm/hot in the summer months does not fall under the definition of a vital service. As well, there was insufficient evidence provided with respect to the conditions in the rental unit during this timeframe to make a determination that the Landlord substantially interfered with the Tenant’s reasonable enjoyment of the premises."
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Debbie Mosaheb's ruling:
TST-20614-11 (Re), 2012 CanLII 21928 (ON LTB), <https://canlii.ca/t/fr3jt>
"2. Pursuant to section 4 of Ontario Regulation 516/06 heat is a vital service during part of the year between September 1 and June 15 and the heating system must be capable of warming the rental unit to a minimum of 20 degrees Celsius during that period.
3. Based on the evidence before me, I find that the Landlord withheld the reasonable supply of heat. The lack of heat has substantially interfered with the Tenants’ reasonable enjoyment of the rental unit.
4. On or about September 15, 2011 the Tenants advised the Landlord that they did not have heat in their unit. On or about September 16, 2011 the Landlord advised the Tenants that they do not usually turn on the heat until September 25, 2011.
5. The Tenants did not keep a temperature log of the temperature in the unit during September 2011/October 2011 but stated that the inside temperature is reflective of the outside temperature. The Tenants noted that during the first weekend of October 2011 the temperature in the unit was approximately 14/16 degrees Celsius according to a thermometer reading in the living room.
6. The Landlord did not dispute that the heat was not turned on September 15, 2011. The Landlord’s position is that during September 2011 they analyzed the temperature outside which was warm and they did not need to turn on the heat. Furthermore, they did not receive complaints from other tenants about the lack of heat.
7. On September 22, 2011, in response to the Tenants’ complaint about no heat, the Landlord offered the Tenants a space heater until the heat was turned on. The Tenants declined the space heater as it was dirty, did not have an operation manual and was not capable of heating the entire unit.
8. It was disputed as to when the heat was turned on. The Tenants asserted that they did not have heat until October 21, 2011. The Landlord stated that on October 7, 2011 a technician attended the residential complex to look at the boiler system and on October 12, 2011 the heat was turned on. The Landlord’s Property Manager, D.D. acknowledged that on October 13, 2011 they had to check whether the heating system was operating.
9. The Tenants’ witness J.K. testified that he did not have heat prior to October 19, 2011 and it is a gradual process of heating the unit.
10. Based on the evidence before me, the Landlord may have turned the heat on October 12, 2011, but there appeared to be an issue whether the heating system was working properly. The Landlord did not lead any additional evidence to indicate that the heating system was fully functional after October 13, 2011. Therefore, I prefer J.K.’s evidence that he did not have heat until October 19, 2011 and since it is a gradual process for the unit to be heated, I accept that the Tenants did not have heat until October 21, 2011.
11. I find that the Tenants are entitled to a rent abatement of 20% for the period of September 15, 2011 to September 30, 2011 and for the period October 1, 2011 to October 21, 2011. In determining the remedy, I have taken into consideration subsection 30(2) of the Residential Tenancies Act, 2006 (the 'Act'), and that the Tenants did not notify the Landlord about the lack of heat until September 15, 2011. In determining the amount of the abatement I took into account the impact and duration of the lack of heat. The Tenants found that without heat in the unit, it was cold during the morning and at night time and they found it uncomfortable to sleep. I note that the Landlord did offer the Tenants a space heater, but the fact of the matter is that the heat should have been turned on when the Tenants complained about the lack of heat. Even after the Tenants notified the Landlord on September 15, 2011 about not having heat, the Landlord failed to take immediate steps to turn on the heating system until October 2011. "
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Debbie Mosaheb's ruling:
TST-67363-15 (Re), 2016 CanLII 71230 (ON LTB), <https://canlii.ca/t/gv8jv>
"Vital Service: Heat
48. It was the evidence of the Tenant that on January 18, 2015 the Landlords deliberately withheld the heat because FR refused to pump the water for the radiators until the Tenant paid to repair the oven.
49. The Tenant did not take any temperature reading in the unit on January 18, 2015. What this means is that the Tenant failed to lead any evidence of temperature readings which would establish the temperature inside the rental unit. The taking of temperature reading was required because pursuant to section 4 of Ontario Regulation 516/06 heat is a vital service between September 1 and June 15 and the heating system must be capable of warming the rental unit to a minimum of 20 degrees Celsius during that period. Since the Tenant led no evidence of the temperature in the rental unit, I find that that there is insufficient evidence to establish that the Landlords failed to provide the vital service of heat as required by the Act."
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Mosaheb's ruling:
TST-73832-16 (Re), 2016 CanLII 88298 (ON LTB), <https://canlii.ca/t/gw52v>
"Vital Service: Hot water and Heat
47. It was the evidence of the Tenant that on April 17, 2016 the Landlord started to shut off the hot water heater which turns off the heat. The Tenant says that he knew the Landlord was at the residential complex and that night there was no hot water. The following day, the Tenant was cold and there was no hot water. The Tenant says that he went and saw that the gage to the hot water heater was shut off and he turned it back on. The Landlord was at the residential complex on April 19, and on April 20, 2016 the Tenant woke up freezing. He went and turned the hot water heater back on.
48. According to the Tenant on April 25, 2016 the Landlord shut the hot water heater off again, but the Tenant did not see the Landlord at residential complex that day. On April 26, 2016 the Tenant woke up freezing and there was no hot water. The Tenant called the Landlord and told him to stop. The Tenant turned back on the hot water heater.
49. The Landlord denies that the turned off the hot water heater/heat. It was the evidence of the Landlord that the heating tank is very sensitive. In the winter he keeps it high but with warmer weather the main floor tenant would complain that it is too warm. So, he would turn it down a little bit, but would never turn it off. When he investigated the water tank, he noticed water on the floor and the machine shut itself off.
50. Based on the evidence before me I do not find that the Tenant has established that the Landlord has deliberately interfered or withheld a vital service of heat. I say this because the Tenant failed to lead any evidence of temperature readings which would establish the temperature inside the rental unit. Pursuant to section 4 of Ontario Regulation 516/06 heat is a vital service between September 1 and June 15 and the heating system must be capable of warming the rental unit to a minimum of 20 degrees Celsius during that period. Since the Tenant led no evidence of the temperature in the rental unit, other than saying it was freezing, I find that that he led insufficient evidence to establish that the Landlord failed to provide heat as required by the Act
51. The Tenant has also failed to provide sufficient evidence to establish that the Landlord turned off the hot water heater. It seems more likely than not that there may be a repair/maintenance issue with the hot water heater and not a case where the Landlord deliberately interfered or withheld the supply of hot water. "
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Mosaheb's ruling at para. 22:
"In addition, it seems to me that section 21 is intended to address the situation where the landlord is purposely depriving a tenant of heat. I am not of the view that the Tenant provided sufficient evidence that the Landlord intentionally set out to deprive the Tenant of heat."
TST-81468-17 (Re), 2017 CanLII 60758 (ON LTB), <https://canlii.ca/t/h5zn5>
"Vital Service: Heat
18. It was the evidence of the Tenant that in December 2016 it was cold and the heat in the common area living room was 15 degrees Celsius. The thermometer was 4 feet on the living room wall. The temperature in the Tenant’s room was 20 degrees Celsius. The Tenant says that he complained to the Board; and the Landlord came and turned the heat on in January 2017.
19. It was the evidence of the Landlord that in November 2016 the Landlord changed the thermostat to an Ecobee thermostat before the Tenant complained that it was cold. The same day the thermostat was changed the Landlord notified all the tenants that the temperature would be 20 degrees Celsius during 9:00 a.m. to 4:00 p.m.; and 24 degrees Celsius at the rest of the time. The Landlord decreased the temperature to 23 degrees Celsius after a tenant complained it was too hot. The Landlord says that the thermometer in the living room could be moved around and it was not 1.5 meter away from the exterior wall when the Tenant claimed that the temperature was 15 degrees Celsius. The Landlord confirmed that the Tenant did complain in December 2016 that the common living room was cold. But, she did not investigate the matter until mid-January 2017 when the Tenant complained to the Ministry of Housing. When she looked into the matter the ecobee thermostat was above 20 degrees Celsius. The temperature in the living room showed 17 degrees Celsius but the thermometer was on the exterior wall.
20. Section 21(1) of the Act states that: 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, withhold the reasonable supply of any vital service, or deliberately interfere with the reasonable supply of any vital service.
21. Pursuant to section 4 of Ontario Regulation 516/06 heat is a vital service between September 1 and June 15 and the heating system must be capable of warming the rental unit to a minimum of 20 degrees Celsius during that period. The heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius.
22. Based on the evidence adduced at the hearing, I do not find that the Tenant has provided sufficient evidence to establish that the Landlord has withheld heat or deliberately interfered with the supply of heat. I say this because it was the evidence before me that in December 2016, when the Tenant saw the thermometer in the living room at 15 degrees Celsius, the thermometer was on the wall at a height of 4 feet. This is not the proper way to measure the room temperature, as indicated in the regulation, above. What this means is that the Tenant has failed to provide sufficient evidence that the temperature in the common area was below 20 degrees Celsius. In addition, it seems to me that section 21 is intended to address the situation where the landlord is purposely depriving a tenant of heat. I am not of the view that the Tenant provided sufficient evidence that the Landlord intentionally set out to deprive the Tenant of heat. I say this because it appears to me that the Landlord had taken steps to install a new thermostat and had the temperature set for at least 20 degrees Celsius. I also considered that the Tenant did not have an issue with the lack of heat in his unit."
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Possibly the same approach in Anna Solomon's ruling (i.e. applying to RTA section 21 - deliberate interference with supply of vital services):
TSL-79338-16 (Re), 2016 CanLII 100421 (ON LTB), <https://canlii.ca/t/gxqc2>
"Insufficient heat and no heat controller in unit – claim not made out
14. The Tenant argued that the Landlords do not provide sufficient heat to the rental unit and they do not provide her with a controller for the heat in her unit. However, the Tenant did not submit any temperature readings from the rental unit. Without this evidence about exactly how cold it got in the rental unit, I am unable to conclude that the Landlords failed to maintain a minimum temperature of at least 20 degrees Celsius as required by Ontario Regulation 516/06, section 4. Accordingly, I am not satisfied on a balance of probabilities that the Landlords withheld or deliberately interfered with the reasonable supply of heat in the rental unit."
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Ruth Carey's ruling applying O. Reg. to a claim of withholding vital services:
TST-47711-13 (Re), 2015 CanLII 51510 (ON LTB), <https://canlii.ca/t/gkqgg>
"VITAL SERVICES
10. The Tenants’ T2 application alleges in part that the Landlord breached subsection 21(1) of the Act which says in part:
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, withhold the reasonable supply of any vital service… that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service...
11. Hot and cold water, fuel, electricity, gas and heat between September 1 and June 15 are vital services for the purposes of the Act. (See: s. 2(1); and Ontario Regulation 516/06, s. 4(1).)
12. The Tenants’ testified about problems with heat, hot water, and electricity.
13. The issue that arises with respect to this part of the Tenants’ application is because of the wording of subsection 21(1). The use of words like “deliberately interfere” and “withhold” in this section indicate it is not intended to address situations of disrepair. Rather it is intended to deal with incidents where a landlord is either wilfully or negligently interrupting the supply of a vital service, usually for some improper or unreasonable purpose.
14. Here, the evidence supports the conclusion that the interruptions in vital services that the Tenants complain of were mostly as a result of disrepair or work being done in the basement unit. For example, the electricity cut offs appear to have been related to the renovations in the basement below; the loss of hot water in the kitchen was caused by a frozen pipe. As a result, these kinds of issues are discussed below in the context of allegations of substantial interference with reasonable enjoyment and disrepair.
15. The only factual evidence the Tenants offer that fits within what this provision is intended to address is with respect to the Landlord’s decision to move the thermostat from the rental unit to the renovated basement unit below. I say this because that was a deliberate act based on an intentional decision on the part of the Landlord relevant to a vital service and I am satisfied it was unreasonable. I say this based on the evidence and reasons set out below.
16. The second-named Tenant above says that when the Tenants viewed the rental unit the thermostat control for their half of the residential complex was physically inside the rental unit. He says the Tenants commented to the Landlord about it because this was a desirable feature for them; having a newborn baby meant controlling the temperature was important to them.
17. The Landlord says this is not true. He says that after the Tenants viewed the rental unit but before the tenancy started, the thermostat control was actually moved from the basement to the Tenants’ unit. It was then returned to the basement after the renovations were complete. He says this was done on December 15, 2013 on the recommendation of the furnace technician. According to the Landlord thermostat controls should be placed in the coldest area of a residential complex.
18. With respect to this issue I accept the Tenants’ evidence over that of the Landlord. I say this primarily for three reasons.
19. First, on December 11, 2013, the Landlord served notice to terminate on the Tenants alleging substantial interference with reasonable enjoyment or a lawful, right, privilege or interest. This notice was served four days prior to the thermostat being removed and reflects the Landlord’s views and feelings about the heating dispute at the relevant time. It says in part:
The tenants has put the heating of the house so high at up to 80 degree Fahrenheit, and the basement was heated up unbearably high. Landlord notify repeatedly to the tenants to scale back to normal temperature and close all their windows. They never did in a consistent basis. Landlord even closed (only two) heating vents in the basement and open the exhaust vent to get some cool air in the basement that led to a frozen water pipe due to severe cold wind that day.
20. I think it is fair to say that this notice reflects the Landlord’s frustration with the Tenants’ insistence on their right to heat the rental unit to a temperature greater than 21 degrees Centigrade. The Tenants had correctly pointed out to the Landlord that the legal requirement was that the heat be a minimum of 20 degrees – there is no requirement it be fixed at that temperature and go no higher.
21. Second, the parties exchanged a number of e-mails about the heat and the windows. In none of them does the Landlord say anything about the thermostat belonging in the basement. However, he does say in e-mails dated November 15, 2013, that the temperature in the basement was 73 or 74 degrees Fahrenheit and he expresses concern that the future basement tenant have the proper temperature which he believes legally is supposed to be 21 degrees Centigrade or 70 degrees Fahrenheit. If the Landlord was planning to return the thermostat to its alleged original location in the basement then one would think he would mention that in at least one of the e-mails where the parties discuss the heating problem.
22. Third, based on my experience of multiple other cases before the Board I believe it is appropriate for me to take judicial notice of the fact that it is not the case that thermostat controls should be placed in the coldest area of a residential complex. I find it not credible that a furnace technician would say such a thing to the Landlord. Generally speaking thermostats should be placed on the first floor of a house on an interior wall in the middle of the home and away from any heat, airflow or light sources. So one would expect the thermostat in this case to be in the Tenants’ unit.
23. As a result of all of the above I find that the Landlord deliberately interfered with the heat supply to the rental unit contrary to s. 21(1) by moving the thermostat from the Tenants’ rental unit to the basement unit thereby depriving them of the ability to control the temperature in the rental unit.
24. With respect to remedy, the Tenant’s application and amended application request: abatement of the rent; a cease and desist order; an administrative fine; increased rent differential; moving expenses; and unspecified compensation.
25. With respect to the request for a cease and desist order, as the Tenants have moved out that remedy is now moot. They did not articulate a claim for compensation so that request is also denied.
26. Pursuant to s. 31(2) of the Act, if the Board determines that the Tenants were induced by the conduct of the Landlord to vacate the rental unit, the Board may order rent differential and moving costs.
27. Here, the Tenants’ original application was filed with the Board on December 12, 2013, and it requested moving costs and rent differential at that time because “we anticipate having to move to another house”. As the thermostat was not removed from the unit until December 15, 2013, this means the decision to move out of the rental unit was made prior to the Landlord’s breach of s. 21(1). As a result, it cannot be said that moving the thermostat induced the Tenants to move out of the rental unit. So the Tenants are not entitled to rent differential or moving costs with respect to the Landlord’s breach of s. 21(1).
28. The normal remedy on applications such as this is abatement of the rent. Abatement reflects the idea that if a tenant is paying rent for a bundle of goods and services and not receiving everything being paid for, then the rent should be abated in an amount that is proportional to the difference in value between what is being paid for and what is being received. Here, the Tenant’s rent included the right to control the thermostat and that was taken away from them, so I believe they are entitled to abatement of the rent for the period December 15, 2013 to January 31, 2014, which is when they moved out.
29. In terms of quantum of abatement, in circumstances like these one of the factors the Board considers is the evidence of the impact on the Tenants of the Landlord’s breach.
30. For some of the relevant period, it would appear the breach had little impact on the Tenants. For example, there is an e-mail dated December 19, 2013, in the materials filed by the Tenants addressed to the Landlord that says in part: “The heat has been working fine lately…”
31. However, the second-named Tenant above says that after the thermostat was removed the Tenants had to call the Landlord every time there was a heating issue and wait for him to come. It became burdensome and the Tenants felt powerless. This statement is corroborated by other evidence.
32. For example, there is an e-mail from the Tenants dated December 24, 2013, that says the temperature in the kitchen is currently 64 ° Fahrenheit and they have closed the chimney flue so could the Landlord turn up the heat?
33. Not long after that e-mail was sent the Landlord arrived at the residential complex with the heating technician. He and the technician went to the door of the Tenants’ neighbour and sought entry to that unit first. Some sort of altercation occurred between the Landlord and the neighbours that the first-named Tenant describes as violent and frightening. The Landlord denies that he was violent or even yelling at the neighbour; he says he called the police.
34. When the Landlord then came immediately after that to the Tenants’ door the first-named Tenant lied and said the heat was fine. The Landlord then sent an e-mail in response to the Tenant’s complaint of lack of heat accusing them of making a “baseless” accusation of lack of heat. The first-named Tenant above wrote back:
I did not let you in on the account that I witnessed you banging on the door and harassing and yelling at our neighbour with the heating technicians…I do NOT feel safe with you in the apartment when I am alone with my child.
It was indeed below 70f in our apartment last night, I expressed my concerns to you about the kitchen and drafty cupboards yesterday …you ignored me and walked away without addressing my concern…
Please keep the temperature at a reasonable level, that is all I ask.
35. There is some indication in the evidence that on December 23, 2013, the first-named Tenant above called the City about lack of heat. In an e-mail dated January 7, 2014, the Landlord accuses the Tenants of calling the City to try and “make some record against me”.
36. On January 8, 2014, the Tenants sent an e-mail saying the temperature was around 67° asking it be turned up. The Landlord replied saying he would look at it; there might be a frozen pipe.
37. On January 29, 2014, the Tenants called the Landlord to complain about lack of heat again. The Landlord wrote an e-mail saying in part that the furnace does not work properly when there is ice build up on the exhaust pipe resulting in a lower temperature output. His e-mail says “all furnaces work that way” and “you still have 67 / 68 [degrees]” and concludes:
I know you want use Very dramatic word like “freezing” etc For your own benefit. Usually it clear by itself or some one has to clear it. Things will get back to normal. Not end of world.
38. The Tenants replied to this e-mail shortly afterwards saying in part:
… you don’t seem to take your responsibilities as a Landlord seriously. I, however, take it very seriously when my 7 month old wakes up with freezing cold hands and feet because the furnace isn’t working once again. I take it seriously when there is an ongoing heating issue which you constantly brush off as “not the end of the world”. You even acknowledge that the current temperature is below the legal requirement, but that we shouldn’t worry about it… I emailed and phoned you before 8 am about the temperature being 60 degrees Fahrenheit, 8 degrees below the minimum, and yet you did not get back to me until 11, and even then your response was “I think it’s working now”, even though something was obviously not.
39. After that the Tenants called the City again about the lack of heat. The next day the Landlord sent another e-mail to the Tenants. In it he talks about measuring the temperature in the unit that day and finding it to be 73°. In the e-mail he accuses them of calling the City as “a last minute attempt to incriminate me before you go, to make record on me, since all previous attempts … failed to do so.”
40. Both Tenants wrote back protesting they called the City the previous day because it was only 68° and the Landlord acknowledged it and did nothing. In reply, the Landlord said he had responded the previous day, been to the residential complex, and cleared the pipe and checked the furnace. In that particular e-mail he essentially accuses them of not understanding English.
41. What these e-mails establish is that the removal of the thermostat from the rental unit exacerbated and heightened the conflict between the parties over the issue of the heat; the fact the Tenants were no longer able to adjust the heat themselves meant they had to deal directly with the Landlord to make adjustments to it and that led to additional aggravation, e-mail exchanges, and bitterness.
42. Neither party made a reasoned argument before me as to what the quantum of abatement should be in these circumstances. Considering all of the above, and given my knowledge of previous like cases before the Board, I believe a reasonable abatement of the rent for the Landlord’s removal of the thermostat would be about 25% of the rent charged or $543.75.
43. With respect to a request for an administrative fine, an administrative fine is a remedy to be used by the Board to encourage compliance with the Act and to deter landlords from engaging in similar activity in the future. A fine is not normally imposed unless a landlord has shown blatant disregard for the Act and other remedies will not provide adequate deterrence and compliance.
44. In these circumstances, I believe a fine is warranted. Moving the thermostat showed a blatant disregard for the Tenants’ rights under the Act and the abatement awarded is not so large as to ensure the Landlord will not behave in a similar fashion in the future. Taking into account the principle that the fine should be commensurate with the breach the nature and severity of it, I believe a reasonable amount for an administrative fine would be $500.00. An order will issue accordingly."
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Ruth Carey's ruling:
TST-65692-15 (Re), 2016 CanLII 72009 (ON LTB), <https://canlii.ca/t/gv99z>
"40. Pursuant to s. 2(1) heat is a vital service “during the part of each year prescribed by the regulations”. Subsection 4(1) of Ontario Regulation 516/06 says that the prescribed period for heat is September 1 to June 15. This means that during the period the Tenant is talking about here, heat was a vital service under the Act.
41. The difficulty with the Tenant’s application concerning the heat is that the evidence is insufficient to establish the Landlord deliberately shut off the central heating system or otherwise intentionally withheld heat. Rather the evidence supports the conclusion that there was a maintenance problem with the building’s heating system.
42. The unit has its own heat unit but it is supplemented by the building’s radiant heating system. The building’s radiators needed to be properly bled when the system came on in September and it would appear that this was the cause of the Tenant’s heat related problems.
43. Subsection 21(1) does not apply to a disrepair or maintenance problem. The wording of the provision shows it is intended to address the situation where a landlord deliberately interferes with or withholds a vital service. That is not what happened here, so that part of the Tenant’s application must be dismissed."
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Cristina De Leon-Culp's ruling with the following at para. 12:
"The Landlord’s own admission that she “locked” the thermostat, supports the Tenant’s allegation that the Landlord deliberately interfered with the reasonable supply of heat. The Tenant could not adjust the thermostat for his own comfort. Further, the fact that the Tenant had to smash the locked cover of the thermostat, supports the Tenant’s evidence that it was extremely cold, and the Landlord inaccessible, necessitating drastic measures."
SOT-69247-16 (Re), 2016 CanLII 44358 (ON LTB), <https://canlii.ca/t/gsk2s>
"Heat
6. Pursuant to Section 21 of the Act, a landlord cannot withhold the reasonable supply of any vital service that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service.
7. “Vital service” is defined under Section 2 of the Act as including “heat” during the part of each year prescribed by the regulations.
8. Ontario Regulation 516/06, in Section 4, defines “vital service” as follows:
DEFINITION OF “VITAL SERVICE” – (1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September to June 15 is prescribed as the part of the year during which heat is a vital service.
(2) For the purposes of subsection 1, heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius.
(3) Subsection (2) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat.
9. The above sections of the Act, in conjunction with the regulations, require the Landlord to provide heat at a minimum temperature of 20 degrees Celsius between September and June 15 and further. In addition, the Landlord is expressly prohibited from deliberately interfering with the supply of such heat.
10. The Tenant testified that at the commencement of the tenancy, in March 2016, the temperature inside the residential complex was set at 11.11 degrees Celsius (52 degrees F) for about 8 to 9 days. There was a cover on the digital thermostat and he could not reach the Landlord. He repeatedly phoned the Landlord but she would not answer the phone and there was no room to leave messages. He was so cold, that he got sick, his back ached so much and he believed he had pneumonia. He shivered in bed. He ended up smashing the cover on the thermostat to be able to adjust the heat.
11. The Landlord admitted that she locked the thermostat cover because it was being manipulated to 32.22 degrees Celsius (90 degrees F). She stated that the Tenant broke it. She stated that she made sure the temperature was at 23.33 degrees Celsius (74 degrees F) because her 96 year old mother lived in the property. She stated that her mother never got sick.
12. I accept the Tenant’s evidence that there was inadequate heat in the residential complex for approximately eight (8) to nine (9) days. I accept the Tenant’s evidence that the temperature inside the residential complex was 11.11 degrees Celsius (52 degrees F) for about 8 to 9 days, which is below the minimum temperature required under the regulations. The Landlord’s testimony that her own mother was in the house, that it was a comfortable 23.33 degrees Celsius (74 degrees F) and in fact her mother did not get sick, flies in the face of her own evidence that she moved her mother out of the house on March 1, 2016. The Landlord’s own admission that she “locked” the thermostat, supports the Tenant’s allegation that the Landlord deliberately interfered with the reasonable supply of heat. The Tenant could not adjust the thermostat for his own comfort. Further, the fact that the Tenant had to smash the locked cover of the thermostat, supports the Tenant’s evidence that it was extremely cold, and the Landlord inaccessible, necessitating drastic measures.
13. Section 29 (2) of the Act provides:
A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:
2. An order determining that the landlord, superintendent or agent of the landlord has withheld the reasonable supply of any vital service, care services or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfered with the reasonable supply of any vital service, care service or food.
14. Considering the vital importance of heat, and the impact of the Landlord’s deliberate locking of the thermostat on the Tenant, there will be 50% rent abatement for the eight (8) days of inadequate heating, in the sum of $65.75 ($500.0 per month X 12 months divided by 365 days = $16.43 per day X 50% = $8.21 X 8 = $65.75)."
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Karen Wallace's ruling:
HOT-01008-16 (Re), 2017 CanLII 9541 (ON LTB), <https://canlii.ca/t/gxq77>
"Lack of Heat
1. Section 2 of the Act defines a vital service as heat “during the part of the year prescribed by the regulations.”
2. Section 4 of Ontario Regulation 516/06 requires the Landlord to keep the temperature in the rental unit at a minimum of 20 degrees Celsius from September 1st to June 15th.
3. The Landlord failed to meet that requirement.
4. The Tenant presented a record of temperature readings in the rental unit for approximately one week in February 2016. The average temperature in the unit was 16.8 degrees.
5. She also provided copies of text messages sent between the Landlord and the Tenant in 2016 which confirm that the Landlord stated it is not financially feasible to keep the temperature at 20 degrees at night or during the day when one is home.
6. Some other text messages state that the Landlord is willing to buy wood for the fireplace in the basement to help with the heat but there is no dispute that the wood was never purchased.
7. The Landlord withheld a reasonable supply of the vital service of heat. The Landlord controls the only thermostat for the furnace from her upper unit. The basement unit was often below the required 20 degrees Celsius. Due to the Landlord’s concerns with her utility bills, she regularly turned down the thermostat to save costs."
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Lisa Stevens' ruling:
NOL-19066-15 (Re), 2015 CanLII 33117 (ON LTB), <https://canlii.ca/t/gjjtq>
"18. Section 4 of Ontario Regulation 516/06 states:
4. (1) For the purpose of the definition of “vital service” in subsection 2(1) of the Act, September 1 to June 15 is prescribed as part of the year during which heat is a vital service.
(2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 meters above floor level and one meter from exterior walls in all habitable space and in any area intended for normal use by tenants is at least 20 degrees Celsius.
19. The Tenants provided no evidence that the gas furnace is not maintaining the heat in the rental unit at 20 degrees Celsius as prescribed by the legislation. The Tenants wish to have more heat than prescribed does not represent an interference with a vital service by the Landlord.
20. The Tenants have purchased electric heaters to supplement their heat. The purchase of the heaters is the Tenants choice and not the responsibility of the Landlord under the Act.
21. JB stated that there were broken windows in the rental unit which was causing heat loss. This is an issue of maintenance which is not the application before the Board at this hearing. In addition JB acknowledged that MD was not told of this issue prior to the hearing."
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II.
Applying O. Reg. 516/06 s. 4 to a maintenance issue (to see if the landlord is in compliance with his maintenance duties under RTA s. 20):
Emily Crocco's ruling which clearly applies O. Reg. 516/06 s. 4 to a maintenance issue under RTA section 20 (at para. 14 - 15):
EAT-58394-16 (Re), 2016 CanLII 72080 (ON LTB), <https://canlii.ca/t/gv951>
"The T2 and T6 Applications
11. In both the T2 and T6 applications, the Tenants allege, and at the hearing the Landlord acknowledged, that the Tenants did not have gas in the rental unit from May 6, 2016, until July 20, 2016. An electric hot water tank was installed on June 20, 2016. However, the Tenants did not have any heat for the rental unit or for their clothes dryer (which runs on gas) until July 20, 2016.
12. The parties agreed that the Landlord was responsible for paying the gas charges. The Landlord had bought the rental unit from her brother in 2008, but did not change the gas account into her own name by the time the tenancy began in 2010.
13. The Tenants testified that until their hot water was restored, they had to boil water for their baths and, given the impracticality of so doing, drove nine times to their friends’ and families’ houses to do so. They also stated that during the period for which they were without heat, they borrowed space heaters from friends. The Tenants provided reports from the Weather Network, which showed that May and June of 2016 had many days which had lows below 20 degrees Celsius. They further testified that since the electric hot water tank was installed in June of 2016, their electrical bills have gone up. They provided bills and other documents in support of all of their allegations.
14. Subsection 4(1) of Ontario Regulation 516/06 states that heat is a vital service for the purposes of the Act from September 1 through June 15. Subsection 4(2) of Regulation 516/06 states that rental units during the foregoing period shall be kept at 20 degrees Celsius.
15. Given that the Landlord failed to meet the foregoing standards regarding heat, and furthermore given that the Landlord failed (via her brother, for whose account the Landlord was responsible as owner of the rental unit) to supply the Tenants with gas as per their agreement, I find that the Landlord failed to meet the Landlord's obligations under subsection 20(1) of the Act to repair or maintain the rental unit.
16. The Tenants requested $200.00 per month off their $1,300.00 monthly rent for the increase in their hydro bills. According to their utility bills, from May through August of 2015, the Tenants paid a total of $400.29 in hydro bills. During the same period in 2016, the Tenants paid a total of $474.66. The difference of $74.37 represents an increase of 15.67% in the Tenants’ hydro expenses. I find that the increase in hydro by the Tenants is directly the result of the Landlord’s failure to provide hot water from May 6, 2016, until June 20, 2016 (during which period the Tenants had to use their electric stove to heat the water) and thereafter due to the Landlord’s decision to install an electric hot water tank. As a result, for the period from May, 2016, through August of 2016, the Landlord shall reimburse the Tenants $74.37. The Landlord will further be ordered to pay 15.67% of the Tenants’ hydro bills from September, 2016, through the termination of the tenancy on December 31, 2016.
17. The Tenants also requested reimbursement for the cost of driving on nine occasions for showers while they did not have hot water. They estimated that each roundtrip used a quarter of a tank of gas and therefore cost them $20.00 to do so. Although the Tenants did not provide proof of the distances to their family and friends’ houses, I find it reasonable to assume that the Tenants would have had to find somewhere to bathe, and that so doing would have taken some gasoline. I will order the Landlords, therefore, to reimburse the Tenants $10.00 per trip, for a total of $90.00.
18. I find that these remedies adequately address the breaches of the Act in question, and no further remedies will be ordered."
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Sean Henry's ruling which seemingly applies O. Reg. 516/06 s. 4 to a maintenance issue (cold air partly due to gaps in the windows, etc):
CET-56739-16 (Re), 2016 CanLII 44613 (ON LTB), <https://canlii.ca/t/gsjxv>
"5. The Tenant also testified that from October 2014 the temperature on the ground floor of the rental unit has been “freezing” every October to March, starting in 2014. (She seeks a monthly abatement of $250.00 for this recurring period, from 2014 onwards). On September 2, 2015, a representative for the builder told her that there was 2 inch gap in two windows in the unit, which the builder fixed on September 2nd. In the Tenant’s view, this contributed to the low temperature in the unit, which persisted after this issue had been addressed. The Tenant submitted a photograph of a portable thermometer showing a reading of about 50 degrees Fahrenheit that she testified was taken on February 13, 2016 on the main floor.
6. In response, MH disputed the Tenant’s claim that the unit was cold and energy inefficient. She advised that the unit has the “Energystar” certificate and is still under its statutory warranty period with Tarion. She submitted a document , a “Site Added Items (Warrant) Service Order” dated March 15, 2016 from the builder, which sets out “No indication of cold areas at time of inspection” and “Bedroom #3. Tenant complained room is cold. Good air flow but 2 of 3 vents covered with bed. Too much furniture in room”.
7. MH also disputed the Tenant’s claim of gaps in the windows, testifying instead that on two windows, the rotary knobs that controls the opening and closing of the windows were broken. In support, she submitted a service report dated September 18, 2015 from “Newmar Window MFG. Inc” which provides “One roto gear and adjusted 2 windows”.
8. 55 degrees Fahrenheit is 10 degrees Celsius. Section 4(1) of Ontario Regulation 516/06 requires a landlord to provide a room temperature of at least 20 degrees Celsius from September 1 to June 15.
9. The Tenant has demonstrated that the Landlord has failed to meet this standard on the one day for which she provided a temperature reading (the Tenant inexplicably failed to provide more readings, and as such there was not a sufficient body of readings to allow me to reasonably conclude that the temperature in the unit was inadequate for the six month annually recurring period that she claimed). While I accept the Landlord’s service order document as proof of the temperature in the unit on or about March 15th, in my view it does not rebut the Tenants’ claimed temperature on a date more than a month one month prior.
10. In my view, this issue reasonably attracts a 50 per cent abatement for February 13th, $32.50 based on a monthly rent of $1,980.00."
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David Mungovan's ruling:
TST-93530-18 (Re), 2018 CanLII 123271 (ON LTB), <https://canlii.ca/t/hwqd6>
"T2 – Vital Services - Heat
15. The Tenant’s allegations about inadequate heat are based on section 21(1) of the Act which states:
21 (1) 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, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.
16. “Vital service” is defined in section 2(1) of the Act as “hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat.”
17. Further requirements concerning heat are contained in section 4 of Ontario Regulation 516/06:
4. (1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service. O. Reg. 516/06, s. 4 (1).
(2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius. O. Reg. 516/06, s. 4 (2).
(3) Subsection (2) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat.
18. The Tenant said the rental unit is cold in the winter and there was a strong, cool breeze that penetrated into the rental unit through a crack in the foundation at ground level.
19. In March 2017 and at unspecified dates and times before that, the Tenant said he complained about the lack of heat to the Landlord and she told him he could purchase a portable heater, which he did. The Landlord’s fiancé said there is no record of complaints about the basement being too cold before the burst pipe on January 2, 2018. The Landlord presented a photograph of a large old-style radiator measuring 2’ x 4’ located in the basement unit which the Landlord was informed by a mechanical contractor is sufficient. Also, there is a water heater and furnace in the basement that provide heat.
20. On January 6, 2018, four days after he left the rental unit, the Tenant sent an email to the Landlord complaining about, among other things, the cold in the basement that day. Even though the Tenant received an N12 dated January 23, 2018 for termination of the tenancy on March 31, 2018, every day from January 27, 2018 to February 2, 2018 the Tenant took photos of temperature readings on a thermometer in the rental unit showing temperatures ranged from 8 degrees Celsius to 15 degrees Celsius.
21. I accept the testimony of the Tenant that there was a point in time when he made known to the Landlord prior to the water leakage described below that the rental unit was too cold but when that was and the period during which that occurred was not proven with sufficient certainty to grant a remedy other than with respect to the Tenant having had to purchase a heater. As the period in which there is proof the temperature in the rental unit was too low was also a period that had no impact on the Tenant as he was living elsewhere due the water damage in his unit as described later in these reasons, I am allowing this claim only to the extent that the Tenant is entitled to be reimbursed in the amount of $29.99 for the purchase of a portable heater as that likely solved any problem regarding heat when it was used."
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David Mungovan's ruling:
CET-75062-18 (Re), 2018 CanLII 88568 (ON LTB), <https://canlii.ca/t/hv7mc>
"T2 – Vital Services - Heat
15. The Tenant’s allegations about inadequate heat are based on section 21(1) of the Act which states:
21 (1) 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, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.
16. “Vital service” is defined in section 2(1) of the Act as “hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat.”
17. Further requirements concerning heat are contained in section 4 of Ontario Regulation 516/06:
4. (1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service. O. Reg. 516/06, s. 4 (1).
(2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius. O. Reg. 516/06, s. 4 (2).
(3) Subsection (2) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat.
18. The Tenant said there are no baseboards or radiators in the basement unit which consists of a bedroom, bathroom, laundry room and kitchen. There is a gas fireplace but it does not work and cannot be fixed because the parts needed are no longer made. The Landlord acknowledged there are problems with the fireplace unit.
19. Tenant said she was given a portable heat dish but she does not take it into her bedroom because of the risk of fire. She also said she is lucky to be warm when she is sitting on the couch when the heater is situated two feet away. The Tenant as well said she kept herself warm by putting on extra clothes.
20. The Landlord said he gave the Tenant a portable heat dish for this 900 square foot unit and showed her how to turn it on.
21. I am satisfied the Landlord breached his obligation to provide adequate heat for the cold period of the year. One does not have to wear extra clothes in a unit where heat is provided at the required minimum level. The Tenant is entitled to a rent abatement as set out under the heading “Remedy” below."
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Lisa Stevens' ruling which applies O. Reg. 516/06 s. 4 and O. Reg. 517/06 s. 15 to a situation of malfunctioning heating system. The ruling also treats this as a breach of both section 20 (maintenance) and section 21 (interference with vital services).
SOT-50247-14 (Re), 2015 CanLII 2909 (ON LTB), <https://canlii.ca/t/gg3wr>
"20. The Landlords are responsible to provide an operating heating system. If there was no heat due to the Tenant’s failure to pay the account this would not be the Landlord’s responsibility. In addition the Landlords are only responsible for a problem when it is known to them.
21. The Landlords were aware, from May 20, 2014, the furnace was no longer functioning and it was not replaced until October 1, 2014. Section 15 of Ontario Regulation 517/06 requires that every residential complex have heating equipment capable of maintaining the temperature levels of at least 20 degrees Celsius. Section 4 of Ontario Regulation 516/06 provides that heat is a vital service and must be available from September 1 to June 15.
22. The Tenant is therefore entitled to rent abatement of $126.54 for lack of heat due to the malfunctioning furnace from May 20, 2014 to June 15, 2014 (26 days) and September 1, 2014 to October 1, 2014 (31 days) for a total of 57 days. This abatement is based on 15% of the monthly rent (15% x $14.79/day = $2.22/day X 57 days = $126.54) The rent abatement takes into consideration that the time period without heat was in the spring and fall.
23. The Tenant is not entitled to be reimbursed for the cost of the electric heaters. The Tenant did not inform the Landlords of the problem with the furnace in a timely manner and he continues to have ownership of the heaters. The Tenant is free to sell the heaters to recover his costs. The Tenant’s application also seeks reimbursement of increase hydro costs for the electric heaters but no evidence to support this remedy was provided.
24. The malfunction of the furnace could be considered an interference with a vital service and a failure by the Landlords to maintain under Section 20 of the Act and the Tenant’s entitlement to rent abatement is for both."
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Linda Markell's ruling:
EAL-78947-18 (Re), 2019 CanLII 71034 (ON LTB), <https://canlii.ca/t/j1rhc>
"The Heat
12. The Tenant testified that it felt cold in the unit, she estimated that it felt as though the temperature were between 16 to 18 degrees Celsius.
13. The Tenant submitted that she had complained to the Landlord of the cold frequently and had finally called the Rental Housing Enforcement Unit. The Tenant submitted into evidence an undated handwritten note which was the report or complaint number with the Rental Housing Enforcement Unit. No inspection report or evidence with regard to any compliance orders was tendered or any temperature readings.
14. The Landlord testified that the heating unit for the residential complex is one integrated system. The Landlord testified that there are not any valves on any ductwork that would allow them to restrict the heat to the Tenant’s unit.
15. In a post-hearing submission, the Landlord entered into evidence a report from HVACExpert dated January 27, 2019 indicating that the temperature in the residential complex on that day was 20 degrees Celsius or more when measured at three different locations.
16. Furthermore the existing furnace was found to be more than adequate to provide heat for a building of this size in Ottawa and confirmed that the only means to reduce airflow to any location was the actual floor registers in individual rooms.
Analysis
17. Section 21 of the Act provides as follows:
21 (1) 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, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.
18. Section 2(1) of the Act defines “vital services” as including heat during the prescribed part of the year. Section 4 of O.Reg. 516/06 states that ) for the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service and that the minimum temperature in all habitable space must be at least 20 degrees Celsius.
19. The Tenant has not proven that the temperature in the rental unit was less than 20 degrees Celsius. The Tenant did not provide any temperature readings, there was no log book of temperatures, and there were no photographs of a thermometer. The only photograph provided was of a frosted window, which is a fairly common sight during a Canadian winter. The strongest evidence adduced by the Tenant in regard to the heating situation was how it felt to her.
20. This is subjective evidence and I did not find it compelling enough, nor sufficient, to prove that the Landlord failed to meet his obligations with respect to heat."
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Additional rulings:
Ruth Carey's ruling using both provincial and municipal standards:
TST-52022-14 (Re), 2014 CanLII 71137 (ON LTB), <https://canlii.ca/t/gfgcr>
Issues Concerning the Heat
68. The Tenant’s complaints about lack of heat engage three different grounds alleged in the application:
• First, paragraph 629-38 of the City’s Property Standard’s By-Law says the heating system must be capable of maintaining a room temperature of 21 degrees Celsius so when the temperature drops below 21 degrees it is a breach of s. 20(1) of the Act.
• Second, pursuant to s. 2(1) of the Act, during the heating season, the provision of heat is considered a vital service. The Tenant alleges the Landlord withheld or deliberately interfered with the supply of heat contrary to s. 21. Section 4 of Ontario Regulation 516/06 defines the heating season as running from September 1 to June 15 of each year.
• Third, the Tenant alleges that the Landlord harassed the Tenant by serving multiple notices of entry on her in order to take the room’s temperature while the same was not done to her housemates.
69. The Landlord’s records show the Tenant first complained about a lack of heat on April 23, 2013. She accused her housemates of turning the heat off. There is no evidence before the Board that the Landlord did anything about this complaint. There is also no evidence before the Board of what the temperature was that day or whether or not the furnace was on or off. More importantly, April 23, 2013 is a date that falls outside of the Board’s jurisdiction with respect to this application as that is more than one year prior to the date of filing of this application. As a result no order will issue with respect to April 23, 2013.
70. The next time heat appears to have been an issue was in the fall of 2013. The Landlord’s records filed into evidence indicate the furnace was not turned on until September 13, 2013. The evidence of the Housing Support Coordinator was that she thought the heat had to be turned on as of September 15 of each year which is incorrect.
71. On September 18, 2013 the Tenant wrote a letter to the Landlord which says in part the residential complex is an ice box. Her letter references a balcony door on the second floor being left open.
72. It appears that on October 9, 2013 the Landlord wrote a letter to all tenants instructing them to keep the windows and doors closed.
73. On or about October 10, 2013 the Tenant called the enforcement branch of the Ministry of Municipal Affairs and Housing saying there was no heat. As a result of this complaint the Landlord started taking and recording temperature readings. It filed into evidence a chart showing the results of the readings. Between October 11 and November 6, 2013 the Landlord entered the rental unit 7 times to measure the temperature. Only one reading on the chart is below 21 degrees Celsius.
74. The Landlord’s records also show that on October 16, 2013 it received a complaint of no heat from someone but it is not clear who; the technician attended to discover the thermostat had been tampered with. The problem was fixed the same day. The technician’s note indicates the outside temperature that day was 17 degrees but no information was provided as to the indoor temperature. As a result of the tampering the Landlord eventually installed a lock box on the thermostat.
75. With respect to s. 20(1) of the Act the only party that provided evidence of the temperature of the rental unit or residential complex was the Landlord. That is not to say the Board cannot find a breach of s. 20(1) when there is no evidence of temperature readings, sometimes, a breach can be inferred by other evidence such as testimony of ice buildup inside a rental unit. But here, the only evidence with respect to lack of heat in the context of s. 20(1) was the Tenant’s bald statements to the Landlord and the enforcement branch of the Ministry of Municipal Affairs and Housing that there was no heat, the Landlord’s temperature readings, and the notes and invoices provided by the Landlord from its heating contractor.
76. Based on that evidence I am satisfied that there was one day when the Landlord was in breach of s. 20(1) because of lack of heat. I say that because its temperature log shows that on October 11, 2013 the temperature in the Tenant’s room was 20 degrees Celsius which is below the minimum standard required by Toronto’s Property Standards By-Law.
77. With respect to s. 21 of the Act the evidence establishes that the Landlord failed to turn on the furnace between September 1 and September 13, 2013. That is a breach of the Act. A landlord is not permitted to withhold heat by failing to turn the furnace on between September 1 and June 15 of each year.
78. With respect to the allegation that the Landlord breached s. 23 of the Act by serving notices of entry to the Tenant and not to her housemates so it could enter and measure the temperature, I am satisfied that is not a breach of the Act. There was no reason for the Landlord to measure the temperature in the rooms of the other tenants; they did not complain of lack of heat. The Tenant’s complaints of lack of heat meant the Landlord was legally required to investigate the temperature in her room and the common areas. For entry into her room notice of entry is a mandatory requirement of the Act. It cannot be harassment for a landlord to take reasonable steps necessary to comply with its obligations under the Act. Therefore, that allegation must be dismissed.
79. In terms of remedy for the breaches of ss. 20(1) and 21 found above the evidence of impact on the Tenant is limited to the fact she complained and what she said in her letter of complaint dated September 18, 2013. I would point out that at that point in time the furnace was on as it was on the one day that the measured temperature in her room was less than 21 degrees. In other words there is no evidence of a lack of heat or complaints of same for the period when the furnace was not on and should have been (except for April 23, 2013 which is beyond the Board’s jurisdiction). For the period when the Tenant was complaining of lack of heat the evidence of the temperature readings indicates the Landlord was not in breach of the Act except on one day. As a result the Tenant is entitled to abatement of rent for that one day or $4.57. An order will issue accordingly.
80. Although the evidence indicating the Landlord did nothing in response to the Tenant’s complaint of April 23, 2013 is disturbing, that is beyond the Board’s jurisdiction. In the absence of additional evidence, particularly of adverse impact on the Tenant caused by the lack of heat, an order for damages arising from the breach is inappropriate."
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An interesting ruling by Roger Rodrigues where it was ruled that "through their inaction and/or failure to properly address the issue, the Landlords deliberately withheld and/or interfered with the reasonable supply of a vital service, i.e., heat." (at para. 36)
The ruling also contains some interesting analysis on assessment of truthfulness of the witness through admissions against one's interest.
TST-60570-15 (Re), 2015 CanLII 77852 (ON LTB), <https://canlii.ca/t/gm93f>
"(b) Vital Services
25. The Tenant’s T2 application alleges that the Landlord breached subsection 21(1) of the Act which states, in part:
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, withhold the reasonable supply of any vital service… that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service...
26. The Tenant’s evidence is that, as there was no heat and/or inadequate heat in the unit every year during the tenancy from “about April 15 to June 15 and from September 1 to around October 20”, the Landlords “withheld or deliberately interfered with the reasonable supply of a vital service”.
27. The Tenant further alleges that, as a result of an Enbridge employee attending at the unit to shut off the supply of gas to the water heater on March 25, 2014, there was no hot water in the unit from March 25 to 27, 2014, inclusive.
28. Hot water and heat between September 1 and June 15 are vital services as per s. 2(1) of the Act and s. 4(1) of Ontario Regulation 516/06.
29. The Tenant’s evidence is that he initially informed the Landlords about the heat issue in October 2009 and, while the Landlords attempted to address the issue, the problem was never resolved as the heat was unevenly distributed throughout the unit. There was adequate heat in the bedroom used by the Tenant and his wife as there was a vent in the ceiling. However, the heat was inadequate, throughout the tenancy in the daughter’s bedroom (until the purchase of the space heater), kitchen, bathroom and living room. In 2009, the Tenant purchased a space heater and this resolved the heat issue in the daughter’s bedroom.
30. The Tenant submitted a photograph of a wall thermometer, taken by him on March 23, 2014, inside the unit. The thermometer shows a temperature of approximately 15 degrees Celsius.
31. The male Landlord testified that the Tenant did not complain about the heat throughout the tenancy and only brought up the heat issue after he agreed to vacate the unit. The male Landlord added that the temperature in the unit was “as the law requires” each year.
32. I asked the Tenant if he ever provided the Landlords with a written complaint about the heat. The tenant stated that he did not because he did “not want to hurt the relationship with the Landlords”. I also asked the Tenant if he had taken any additional temperature readings throughout the tenancy, and he said that he did not.
33. In presenting his evidence on this issue, the Tenant made three admissions against interest. First, he readily admitted that, during the tenancy, the Landlords took some steps to address the heat issue—albeit unsuccessfully. Second, the Tenant testified that, upon purchasing a space heater early on in the tenancy, the heat level in his daughter’s room was adequate. Third, the Tenant testified that the heat level in his bedroom was adequate throughout the tenancy. In my opinion, the Tenant’s three significant admissions against interest are indicative of a truthful witness. For these reasons, I prefer the evidence of the Tenant in contrast to the male Landlord’s blanket statement that the temperature in the unit was “as the law requires” each year.
34. Again, because the Tenant’s application was filed on February 24, 2015 and the Tenant vacated the unit on March 31, 2014, and as subsection 29 (2) of the Act provides that no application may be made under subsection 29 (1) more than one year after the day the alleged conduct giving rise to the application occurred, the Tenant is entitled to a remedy in this regard for the period of February 24, 2014 to March 31, 2014.
35. As the Tenant only provided one interior temperature reading for the period of February 24, 2014 to March 31, 2014, I am unable to find, on a balance of probabilities, that that reading of 15 degrees Celsius is indicative of the temperature in the unit on all the days. However, based on the Tenant’s testimony, which I accept as credible, I am able to find that, on a balance of probabilities, that there was inadequate heat in the kitchen, bathroom and living room of the unit from February 24, 2014 to March 31, 2014.
36. Subsection 21(1) of the Act contains words like “deliberately interfere” and “withhold”. The subsection is intended to address situations where a landlord is either wilfully or negligently interfering with the supply of a vital service. Given the evidence before me that the Tenant initially informed the Landlords about the inadequate heat in the unit in October 2009, that the Landlords attempted, unsuccessfully, to address the issue and that the issue persisted until the Tenant vacated the unit, I am of the opinion that, through their inaction and/or failure to properly address the issue, the Landlords deliberately withheld and/or interfered with the reasonable supply of a vital service, i.e., heat.
37. With respect to abatement, given the evidence before me of the impact on the Tenant and his family—especially given the months of the year when the heat was inadequate, the Landlords’ lack of significant effort to address the issue, the approximate percentage of the unit affected and my experience with similar cases, I believe that a reasonable abatement of the rent would be 40% of the rent charged for the period February 24, 2014 to March 31, 2014 or $260.35."
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Egya Sangmuah's ruling:
TNT-12330-19 (Re), 2020 CanLII 31173 (ON LTB), <https://canlii.ca/t/j6vhb>
"4. The Tenants claimed that they had to move because the rental unit was too cold, and the Landlord disregarded their complaints. The Tenants alleged that the female Tenant was recovering from kidney cancer and could not tolerate the cold.
5. I find that the Tenants moved out of the rental unit because they found cheaper accommodation and they concocted the story about lack of heat in the rental unit as an excuse to get out of the lease. The Tenants did not complain about lack of heat until they decided to move out. At the beginning of December 2018, the male Tenant informed RK that the Tenants could not afford the rent and their share of the utilities because of financial difficulties. The Tenants confirmed this in an email dated December 6, 2018. The temperature readings taken by the Tenants are unreliable. The readings were taken after December 6, 2018 and were not taken in the manner prescribed by section 15(1) of Ontario Regulation 517/06 .Furthermore, the heating system was serviced by a HVAC technician in March 2019 and was found to produce adequate heat for the whole residential complex. There were no maintenance problems with the furnace."
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Greg Joy's ruling:
Ritchie v Sparko Land Inc, 2021 CanLII 85287 (ON LTB), <https://canlii.ca/t/jj1jx>
"4. The Tenant claim that there was a problem with the boiler that caused the heat to drop below the required 20 degrees Celsius level two to three times per week.
5. The Landlord acknowledges there was a problem in 2019 and that he spent $17,000.00 to repair the issue. Despite this repair, in the fall of 2020 the problem continued until the boiler was eventually replaced on January 27, 2020.
6. When the issue became apparent to the Landlord, the Landlord provided portable heaters to each of the rental units. Based on the Tenant’s testimony and the evidence submitted, I find the space heaters were not sufficient to maintain the heat in the rental unit at 20 degrees Celsius.
7. The Tenants are $800.00 for the cost they incurred to pay for alternative accommodations. The Tenant testified that her husband works from home and is highly sensitive to cold. As a result, they rented a room for $400.00 for two months to accommodate his needs. Considering the circumstances, I find this cost to be reasonable and will award the amount requested.
8. The Tenants are also claiming $600.00 for increased hydro costs. The evidence submitted justified this claim. I will award this amount as well.
9. The Tenants are also seeking a 40% abatement of rent for substantial interference with reasonable enjoyment. Considering the fact that the Tenants are being compensated for the alternative accommodation and the fact the Tenant’s testimony was that the heat would drop down to 17 or 18 two to three times a week, I find a 15% abatement of rent for the 5 month period that applies is appropriate. The Tenants will receive an abatement of rent in the amount of $660.00.
10. The Tenants are also seeking an award of $7,000.00 for pain and suffering. Although the Landlord is in breach of O. Reg. 517/06 section 15 regarding the provision of heat, I find that amounts awarded and circumstances do not justify an award for pain and suffering."
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Nathan Ferguson's ruling:
SWT-99442-17-AM (Re), 2017 CanLII 48946 (ON LTB), <https://canlii.ca/t/h534m>
"9. I find the Landlord’s initial, almost immediate response to the Tenant’s report of inadequate heat was reasonable in the circumstances. Although the Landlord did not immediately follow through, within approximately two weeks a repair was attempted, and in the meantime, the Landlord purchased additional weather stripping. The heat, while lower than required, was not off or unavailable.
10. The Tenant did not measure the temperature in the rental unit until February 10, 2016. At that time, the heat was maintained at approximately 18-19 degrees Celsius (photographs of readings are marked Exhibit 4). This is insufficient according to O.Reg 517/06 (section 15) as well as the city’s bylaw which requires a temperature of 20 degrees Celsius. Before February 10, 2016 the temperature of the rental unit was not recorded.
11. The Tenant testified that her mother purchased two space heaters to compensate for the inadequate heating as the Landlord was not responding quickly enough to the situation. The receipts provided for the heaters shows these were purchased February 11, 2016 at a cost of $316.38. The Landlord later offered to provide heaters, but not until March 2016 after the Tenant had already incurred this cost and well after the Landlord ought to have addressed insufficient heating in the winter months.
12. In short, I find that the Landlord initially responded to the Tenant’s report of diminished heat reasonably, but failed to follow through or adequately repair the heat for several months during the winter. I find that this is not a reasonable or sufficient response to the Tenant’s reports and does not discharge the Landlord’s responsibility to maintain the rental unit. After February 5, 2016, when the initial repair was ineffective, the Landlord should have taken more aggressive steps to either repair the heaters or provide additional or supplementary heat to the Tenant. The Tenant ought not to have needed to purchase her own heat sources, and but for the inaction of the Landlord, would not have done so.
13. Therefore, I find the Tenant’s request for reimbursement regarding the heaters reasonable and warranted in the circumstances. The Landlord shall pay the Tenant $316.38 for the cost of the heaters accordingly.
14. However, I do not agree with the Tenant that the Landlord ought to bear the cost of additional hydro fees. This is for two reasons. First, the Tenant did not demonstrate the difference in cost as between functional or more effective heaters and the cost that the Tenant paid with ineffective heaters. Second, the hydro receipts provided do not suggest that there was a significant change in the cost of hydro, which is perhaps unsurprising in that the heaters the Landlord ought to have repaired were electric, as were the heaters which the Tenant purchased to remedy the situation. That is, heating the unit via the original heaters and the purchased heaters did not create a significant cost difference based on the evidence available to the Board (see hydro bills, Exhibit 6).
15. Although the hydro bill dated May 20, 2016 was lower ($63.10) the remainder of the bills were significantly more, and in keeping with the amount charged during the period of insufficient heat complained of by the Tenant.
16. The hydro bill dated April 21, 2016 indicates the total due is $275.37 although April is a significantly warmer spring month. The March 21, 2016 bill is for $213.42, less than the amount charged in April. The February 2016 bill is for $358.03, but the January 2016 bill is just $81.74. On the whole, the impacted winter months are not significantly different than the amount charged in the spring, especially when averaged. The truly high bills were applicable to the months of November and December 2015, which were beyond the Board’s jurisdiction to consider as this was more than one year before the Tenant’s application in this matter.
17. I was not presented with evidence establishing a baseline cost before the heaters were considered a problem or with any evidence on which to determine the actual costs applicable to the additional portable heaters. In short, the Tenant failed to demonstrate, on a balance of probabilities, that the insufficient heat source created a difference in her hydro costs.
18. In light of the foregoing, I find that the Landlord failed to meet the Landlord's obligations under subsection 20(1) of the Act to repair the rental unit. But for this failure, the Tenant would not have incurred the cost of additional heaters to raise the temperature in the rental unit to a satisfactory level. Therefore, the Tenant is entitled to the out of pocket cost of these heaters."
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Lisa Stevens' ruling:
NOT-10067-12 (Re), 2012 CanLII 86730 (ON LTB), <https://canlii.ca/t/fvt0t>
"The Tenants applied for an order determining that the Landlord failed to meet her maintenance obligations under the Act or failed to comply with health, safety, and housing or maintenance standards.
[...]
3. Section 15 of O. Reg. 517/06 states:
15.(1) Heat shall be provided and maintained so that the room temperature at 1.5 metre above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenant, including recreation rooms and laundry rooms but excluding locker rooms an garages, is at least 20 degrees Celsius.
(2) Subsection (1) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat.
(3) Every residential complex shall have heating equipment capable of maintaining the temperature levels required by subsection (1).
(4) No rental unit shall be equipped with portable heating equipment as the primary source of heat.
(5) Only heating equipment approved for use by recognized standards testing authority shall be provided in a room used or intended for use for sleeping purposes."
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Alex Brkic's ruling:
CET-71378-17 (Re), 2018 CanLII 41830 (ON LTB), <https://canlii.ca/t/hs06b>
"17. RK testified that SR complained to the City and that on October 31, 2017, a building compliance inspector inspected the furnace and rental unit. SR confirmed that she complained to the City.
18. RK submitted exhibit LL#4, which is a copy of the City inspector’s handwritten notes concerning the inspection and what he had determined. The inspector clearly arranges with the Landlord for an inspection to take place on October 31st. The inspector reports that the unit’s furnace is working and that the temperature readings of the unit is 20 degrees (+/-) Centigrade. Finally, the inspector indicates he contacted the Landlord and recommended he consider “auxiliary forms of heat to deal with comfort level” for the Tenants.
19. I note that the only temperature in the rental unit recorded by anyone was that of the City inspector whose single reading shows the unit fully complied with the “Heating” subsection 15(1) of Ontario Regulation 517/06” at the time of the reading."
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Alex Brkic's ruling:
CET-72430-18 (Re), 2018 CanLII 88557 (ON LTB), <https://canlii.ca/t/hv7lg>
"41. Based on the submissions and evidence of the parties, I find that on a balance of probabilities, the Landlord substantially interfered with the Tenant’s reasonable enjoyment by not adjusting the heat upward, to bring the rental unit up to at least 20 degrees Centigrade.
42. I noted the Tenant’s temperature reading effort was not compliant with the specifications of subsection 15(1) of Ontario Regulation 517/06, which states: “[heat] shall be provided and maintained so that the room temperature at 1.5 metres above floor level and one metre from exterior walls… is at least 20 degrees Celsius.”
43. However, I believe the rental unit was cold and not regularly comfortable, and that the Tenant did provide proper notice to the Landlord about the condition of the rental unit. As such, I am granting an abatement of rent equal to 20% of one month’s rent, which represents the substantial interference over the period of December 28, 2017 to the end of the tenancy."
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Brian Cormier's ruling:
NOT-20997-15 (Re), 2015 CanLII 79113 (ON LTB), <https://canlii.ca/t/gmc4m>
"21. LD alleged that the one working shared shower lacked proper heat and that you could see your breath on cold days. LD also complained that the radiator in his room lacked proper warmth. The upper floor of the residential complex is heated by hot water radiators that run in a continuous loop around the perimeter of the building. LD acknowledged that the shower area does not have its own hot water radiator claiming that this part of the building is heated by the warmth that emanating from the rest of the building.
22. Sub-section 15(1) of Ontario Regulation 517/06 sets out the requirement for heat at a residential complex stating: “Heat shall be provided and maintained so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius”.
23. The Landlords have knowingly withheld a vital service (heat) by ignoring complaints of inadequate heat.
24. Section 233 of the Act identifies offences requiring knowledge. It states in part: A person is guilty of an offence if the person knowingly, (a) withholds the reasonable supply of a vital service, care service or food or interferes with the supply in contravention of section 21; (i) harasses, coerces, threatens or interferes with a tenant in such a manner that the tenant is induced to vacate the rental unit; (k) obtains possession of a rental unit improperly by giving a notice to terminate in bad faith.” The Landlords and PG are guilty of the above offences.
25. Section 234 of the Act states: “A person is guilty of an offence if the person (v) furnishes false or misleading information in any material filed in any proceeding under this Act or provided to the Board, an employee or official of the Board, an inspector, an investigator, the Minister or a designate of the Minister.”; PG is guilty of this offence.
26. The lack of maintenance and heat in LD’s rental unit; the lack of maintenance and heat and in the shared bathrooms and common areas; and the abusive conduct of the Landlords have substantially interfered with LD’s reasonable enjoyment of his rental unit and the residential complex. It is appropriate that the Landlords pay $1,312.50 to LD as compensation for the confirmed issues raised in the T2 and the T6 applications. This represents a 25% abatement of rent for the 10 month period from September 4, 2014 to July 2, 2015. (RTA s. 29(2) - one year back from the application date)
27. LD was induced to move because of the Landlords’ conduct. The Landlords must also pay $100.00 in moving expenses."
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Sonia Anwar-Ali's ruling:
TET-99847-19 (Re), 2020 CanLII 61270 (ON LTB), <https://canlii.ca/t/j9dzd>
"No heat in the rental unit
28. The Tenants testified that the thermostat that controlled the house temperature was located in the basement and accessible to those tenants. In February 2019, the Landlord took away access to the thermostat by securing it in a lock box and setting the temperature.
29. On March 7, 2019 the Tenants complained to the Landlord that the temperature was too low, under 20 degrees – which was conveyed to them by the basement tenants. This was not safe for TC as he is diabetic nor JO as she was seven months pregnant at the time nor their three-year-old child. The Tenants threatened to call the by-law officer.
30. The Landlord testified that he came to the rental unit with a furnace technician that day to investigate the Tenants complaints. He also brought with him a heat and cooling technician who measured the air coming from the Tenants’ vents at 47.8 degrees Fahrenheit, a photograph of this was submitted as evidence.
31. Subsection 15(1) of the Ontario Regulation 517/06 under the Residential Tenancies Act, 2006 states:
15. (1) Heat shall be provided and maintained so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius.
[Emphasis added.]
32. Based on the evidence before me I find that the Landlord was in breach of his obligations under subsection 20(1) of the Residential Tenancies Act, 2006. I say this based on the heat measurement taken by the Landlord’s contractor the day the Tenants complained of no heat in the rental unit, which was 47.8 degrees Fahrenheit, which is the equivalent of 8.8 degrees Celsius – which is below the required amount set out in the regulations. As such, I find that the Tenants’ are entitled to a 50% rent abatement for the period between March 7, 2019 and March 15, 2019 or $244.08."
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Jean-Paul Pilon's ruling:
TST-58763-14 (Re), 2016 CanLII 39771 (ON LTB), <https://canlii.ca/t/gsb1h>
"Heat
23. The Tenant complained that the thermostat in the rental unit did not have a display and that the rental unit did not contain sensors to monitor the temperature. Sophisticated thermostats and monitors are not required and neither amounts to disrepair.
24. The Tenant complained about a lack of heat and the Landlord investigated, finding nothing wrong. Otherwise, the Tenant had three photographs purporting to show the temperature in the rental unit: 20.3 C on October 2 (all 2015), 20.6 C on October 16 and 20 C on October 21.
25. Assuming the readings were taken within the rental unit, they indicated the unit to be only very slightly below what might be required by the City of Toronto Municipal Code, although this was not provided. It is not, however, necessarily indicative of disrepair, nor would it have been necessarily indicative of a withholding of vital services had that been a ground of the T2. More significantly, however, is the fact that the deficiencies were minimal to the point of insignificance and, if disrepair, not a serious issue of disrepair, as was confirmed by the Landlord’s witness.
26. It should be noted that had the unit not been in Toronto in an unorganized territory, subsection 15(2) of Ontario Regulation 517/06 to the Act would only have required the Landlord to maintain a temperature of 20 C measured in a particular way, where the Tenant did not testify as to where in the unit his measurements were taken."
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Alex Brkic's ruling:
CET-58812-16 (Re), 2016 CanLII 88095 (ON LTB), <https://canlii.ca/t/gw4nf>
"Furnace/Heat Issue
17. With respect to issue (i) regarding the furnace not functioning, the parties agreed that at the start of the tenancy, the old furnace was not working. The parties also agreed the Landlord was to buy and install a new furnace. KH testified that a new furnace was installed shortly after the tenancy began and the only issues remaining are connecting the cold air return to the furnace and installing the thermostat. AA did not dispute this but stated that the furnace did not work during May 2016.
18. AA testified she used two space heaters on the advice of KH to heat the unit. However, KH testified that AA also had the option of using three existing electric wall heaters, which she elected not to use (of AA’s own admission) and the kitchen oven during the early part of May. AA submitted her online temperature research for May 2016 (TT#29) to show that the average outside day-time temperature from May 1-21, 2016 was 15.3 degrees Centigrade, and average night-time temperature for the same period was 2.4 degrees Centigrade.
19. However, the Tenants did not provide any readings of temperature in the rental unit itself to show whether the various room temperatures were in compliance with subsection 15(1) of Ontario Regulation 517/06, under “Heating”. AA testified that the Tenants were able to get by with the heating options AA did use; however, AA is claiming the Landlord failed to repair a non-working furnace and/or provide a proper vital service in the way of heat.
20. I do not agree. First, the Tenants knew the old furnace was not working when they first moved in, and further, they knew the Landlord was in the process of buying and installing a new furnace. The Tenants had heating options before them, and they availed themselves of using space heaters during the short period of May when they may have had need of some heating. The Tenants confirmed that they were able to get by with the temporary heating options they availed themselves of while the new furnace was being installed. Based on this, I cannot find the Landlord somehow failed in providing the Tenants with a vital service, either under the maintenance provisions of subsection 20(1) of the Act, or under the withholding or interference of a vital service provision of subsection 21(1) of the Act."
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Dawn Wickett's ruling:
McNab v Pullara, 2021 CanLII 115491 (ON LTB), <https://canlii.ca/t/jkg7n>
"46. The Tenant testified that on October 15, 2020, the thermostat temperature inside his rental unit was lowered to 12 degrees Celsius. On March 27, 2021 the thermostat was lowered to 14 degrees Celsius. On April 7, 2021, the thermostat was lowered to 18 degrees Celsius. The Tenant testified that AC was able to control the thermostat remotely as it is a smart thermostat. The Tenant emailed AC about his concerns and advised her that the temperature must be kept at 20 degrees Celsius as per they city bylaw. The Tenant also entered in evidence pictures of the thermostat readings for each dated he claims the AC lowered the setting below 20 degrees Celsius. AC testified that she could not have lowered the temperature on the thermostat because someone blocked her ability to control the thermostat remotely. I note the email on of September 28, 2020 that is attached to the Tenant’s application, confirms AC telling the Tenant that she is blocked from being able to control the thermostat.
47. The Tenant testified that the windows in his bedroom did not close properly resulting in cold air entering the unit during the cooler months. To counter the cold air, the Tenant used a space heater to warm up the bedroom. The Tenant testified that he told AC about the window issue several times. The Tenant testified that the problem with the windows started in 2019 and still has not been resolved. The cold air entering his bedroom results in below 20 degrees Celsius. (The window issue will be further discussed in the T6 application portion of this order.) AC testified that that the windows have been repaired. AC testified that they were repaired shortly after the Tenant notified her of the problem. AC testified that the windows were not broken but stuck and did not close all the way. Her repair man pushed down hard on the windows and they closed and locked. The Tenant did not dispute this evidence.
48. On May 13, 2019 the Tenant emailed AC about his need to use a space heater in the bedroom because the temperature was below 20 degrees Celsius. On August 13, 2020, the Tenant again emailed AC about the ongoing cold temperatures in the bedroom and his need to use a space heater. Copies of the emails are attached to the Tenant’s application.
49. The Tenant testified he purchased digital thermostats to monitor the temperature in his bedroom. On October 26, 2020, December 8, 2020, December 15, 2020 and February 13, 2021, the temperature reading in his bedroom was 16 degrees Celsius. The Tenant entered in evidence photos of the temperature readings in his bedroom for these dates. The Tenant did not provide evidence that these readings were taken in compliance with Ontario Regulation 517/06, section15(1) which stipulates the room temperature is to be taken at 1.5
metres above floor level and one metre from exterior walls in all habitable space. The Tenant emailed the Landlord each time and never received a response. AC testified that she tried to respond to the Tenant’s concerns about the bedroom being cold. He previously told her that he thought the bedrooms were cold because of the window’s not shutting properly or possible issues with the heating ducts. AC testified that she tried to enter the rental unit on July 15, 2020 with contractors and the Tenant refused her entry.
Request for Remedy
50. The Tenant is seeking to have the Landlords reimburse him $291.00 for the cost of running space heaters during the years of 2020 and 2021. The Tenant also wants the Landlords to reimburse him for his out of pocket cost to purchase the space heater ($100.00) and digital thermostat ($20.00). The Tenant further requested the Board order the Landlords to keep the temperature of the rental unit at a minimum of 20 degrees Celsius. With respect to the Tenant not having hot water 7 days, he is seeking a rent abatement of $101.28. The Tenant’s calculation is 30% of the daily rent x 7 days.
Findings
51. The Tenant’s allegations about inadequate heat are based on s.21(1) of the Act which states:
(1) 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, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.
16. “Vital service” is defined in s.2(1) of the Act as “hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat.”
17. Further requirements concerning heat are contained in s 4 of Ontario Regulation 516/06:
(1) For the purpose of the definition of “vital service” in subsection 2 (1) of the Act, September 1 to June 15 is prescribed as the part of the year during which heat is a vital service.
(2) For the purposes of subsection (1), heat shall be provided so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius. .
(3) Subsection (2) does not apply to a rental unit in which the tenant can regulate the temperature and a minimum temperature of 20 degrees Celsius can be maintained by the primary source of heat.
52. I find the Tenant did not prove the Landlords withheld a reasonable supply of heat. On a balance of probabilities, I am satisfied that AC tried to address the Tenant’s concerns about the heat. The evidence is clear that AC tried to enter the rental unit with a contractor, but the Tenant refused them entry. AC cannot be held responsible for an inadequate heat supply if the Tenant refuses to cooperate with her efforts to address the issue. Further, the Tenant provided evidence of his own temperature readings. I have no evidence before me that these readings were taken in compliance of s.4 of the Ontario Regulation 516/06.
53. Regarding the issue of the smart thermostat being set below 20 degrees Celsius, I am satisfied based on the evidence before me that AC did not turn thermostat down. The emails on file clearly support her claim that someone blocked her from being able to remotely control the temperature setting.
54. With respect to the issue of the Tenant not having hot water for a period of 7 days, I accept AC’s evidence that she made her best attempts to resolve the matter quickly. Her attempt failed as the scheduled service person cancelled the appointment. AC then had to try and find another service person to attend the residential complex and reconnect the gas line. I also take judicial notice that scheduling appointments for any kind of home repair service was and continues to be particularly difficult due to the impact of the COVID-19 pandemic restrictions. For these reasons, I am satisfied that AC did not breach her obligations as a landlord pursuant to s.21(1) of the Act."
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