This application was heard via video conference at 10:15 a.m. on January 14, 2021, with written submissions received on January 21, 2021. The Tenant, the Tenant’s Legal Representative, Brenda Mercer, the Landlord, Leeanne Bouchard (‘L.B.’), and the Landlords’ Legal Representative, John Kulikowski, attended the hearing. Tenant Duty Counsel was available but not required as the Tenant was represented.
Preliminary Issues:
Non-Participation of A.W.
1. At the beginning of the hearing, the Landlords’ Legal Representative advised that another tenant, Adam Wolfe (‘A.W.’), has disputed this Tenant’s tenancy agreement with the Landlords, effectively alleging that the Tenant does not fall under the definition of a tenant in subsection 2(1) of the Residential Tenancies Act, 2006 (the ‘Act’).
2. There are two tenancy agreements between A.W. and the Landlords. The first is a fixed term lease for one year and one day, effective May 1, 2019, signed by both Landlords and A.W. to rent the “lower unit” of the residential complex, meaning the basement of the house for $975.00 monthly rent.
3. The second lease is dated October 1, 2019 for A.W. to rent only a room in the basement at $500.00 per month, with a stated effective date of December 30, 2019. While the second lease lists both Landlords, only L.B. has signed the agreement. At the bottom of the last page, someone has written “previous agreement voided.” The Tenant is not listed as a party to either lease and both leases refer to the rented premises as simply 83 Victoria Avenue, Chatham.
4. Although A.W. has apparently filed his own application in which he asserts that he rented the entire basement of the residential complex and that the Tenant was therefore merely an occupant, both parties for the present hearing take the position that at all material times for the present application, A.W. rented only a room and that the Tenant rented the second room in the basement from the Landlords. A.W. is not a party to the present application and his second lease would have commenced only after the Tenant was evicted.
5. On June 15, 2020, the parties participated in a Case Management Hearing (‘C.M.H.’). The hearing officer made the following determinations based upon the discussions at that hearing in interim order SWT-43593-20-IN, issued on June 19, 2020:
2. A Case Management Hearing (“CMH”) was held by telephone on June 15, 2020 at 12:30 PM. The Landlord was present and was represented by John Kulikowski (JK), a licensed paralegal. The Tenant was present and was represented by Melissa Bradley (MB), a licensed paralegal.
3. At the CMH, JK conceded that there was a tenancy between the Tenant and the Landlord. He claims that the tenancy was for a 2-month period from October 1, 2019 to November 30, 2019, with the termination date having been determined at the commencement of the tenancy.
4. The parties were unable to reach an agreement at the CMH. Consequently, the matter will be referred to a merits hearing before a Board Member.
6. Although neither party requested an adjournment to serve A.W. so that he may participate in the hearing, the Landlords’ Legal Representative noted that the determinations in the present application may have an adverse effect upon A.W.’s own application. The Tenant’s Legal Representative emphatically opposed any adjournment, noting that the Landlords could have raised this issue at the C.M.H., but opted not to do so.
7. As well, in the interim order above, the hearing officer made a determination that a tenancy existed between the Landlords and the present Tenant and that finding has not been reviewed or appealed, despite the opportunity to do so. I find no persuasive grounds to contradict that finding.
8. I am satisfied that a verbal tenancy agreement existed between the Tenant and the Landlords to rent the second room in the basement of the complex and that the Tenant therefore had standing to file the T2 Application.
9. In light of all of the circumstances and with consideration to the serious issues raised in the application, I find that a further delay of this hearing would be both unreasonable and unnecessary. As a result, the hearing proceeded.
Receipt of Written Submissions
10. As the hearing threatened to run over into the subsequent hearing block, the Landlords’ Legal Representative requested the option of providing written submissions at a later date and the Tenant’s Legal Representative agreed. Both agreed to submit their submissions to the Landlord and Tenant Board (the ‘Board’) by January 21, 2021.
11. According to a letter from the Tenant’s Legal Representative, while she submitted her submissions during the day, the Landlords’ Legal Representative did not serve her with his submissions until after the close of business hours on January 21, 2021.
12. The written submissions from the Tenant were received by the Board at 4:34 p.m. In order to comply with the direction to submit her submissions on January 21, 2021, the Tenant’s Legal Representative could not wait to receive the Landlords’ Legal Representative’s submissions before filing her own. The Landlords’ Legal Representative would have had the benefit of tailoring his submissions to those offered by the Tenant’s Legal Representative, while she did not have this same opportunity.
13. However, had the parties issued their submissions orally at the hearing, as the applicant, the Tenant’s Legal Representative would have offered closing submissions first and the Landlords’ Legal Representative as a matter of procedure would have had the benefit of hearing the Tenant’s argument before issuing submissions on the part of the Landlords.
14. The recording of the proceedings confirms the absence of any reference to the end of the business day on January 21, 2021. The Landlords’ Legal Representative requested seven days to provide submissions and the Tenant’s Legal Representative agreed. I confirmed with both that the submissions should be provided on or before January 21, 2021. As well, I did not describe any terms that may apply should either party fail to provide submissions by January 21, 2021 or require one party to provide submissions before the other. If either party objected to this requirement, the time to raise such an objection would have been before the hearing ended on January 14, 2021.
15. As a result, I do not agree with the Tenant’s Legal Representative that the Landlords’ submissions sent after 5:00 p.m. should be excluded, since both parties still had until 11:59 p.m. on January 21, 2021 to serve and file their submissions.
Determinations and Reasons:
1. As mentioned above, on October 1, 2019, the Tenant rented a room in the basement of the residential complex, sharing common areas with A.W. The parties agreed that these common areas included a living room and a kitchen. The Tenant testified that he had been friends with A.W., who had suggested that he move into the second room in the basement. To that end, the Tenant spoke with L.B. and entered into a verbal tenancy agreement that involved direct payment of rent from the Ontario Disability Support Program (‘O.D.S.P.’).
2. Although L.B. had resided in the residential complex during some part of the tenancy, there was no suggestion that the Tenant was required to share kitchen or bathroom facilities with the owners or their family. As of the date of the hearing, both Landlords resided elsewhere. Prior to the hearing, the Landlord submitted a signed declaration from the Tenant dated April 25, 2020 in which he stated that the rental unit was not accessible from the upper unit where L.B. resided and that the basement included its own bathroom and kitchen. While neither party referenced this declaration at the hearing, it supports other evidence that this living accommodation was not exempted from the Act pursuant to subsection 5(i) of the Act.
3. The Tenant testified that L.B. advised him when they entered into the tenancy agreement that she expected him to vacate the rental unit in December, 2019. This evidence was not contested by the Landlords.
4. This pre-arranged termination is not equivalent to the more common situation in which parties enter into a fixed term lease that terminates on a subsequent date. Under such an agreement, in the absence of a subsequent notice or agreement to terminate, the tenancy continues under the same terms as the original lease pursuant to subsection 38(1) of the Act:
38. (1) If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act.
5. Rather, in the present case, the evidence indicated that L.B. compelled the Tenant to agree to a pre-set termination date at the same time that the parties entered into the tenancy agreement. As a result, I find that this termination agreement is void pursuant to subsection 37(5) of the Act:
37. (5) An agreement between a landlord and tenant to terminate a tenancy is void if it is entered into,
(a) at the time the tenancy agreement is entered into; or
(b) as a condition of entering into the tenancy agreement.
6. There was no evidence or suggestion that this tenancy would have fallen under subsection 5.1(1) of the Act which permits fixed term accommodations for therapeutic, rehabilitative or related purposes.
7. While he was somewhat unclear with respect to how many months he believed he would be able reside in the rental unit under the agreement, the Tenant testified that it was his understanding that he would be permitted to remain in the rental unit until January, 2020.
8. Separate and apart from the above agreement, on November 30, 2019, the Tenant and both Landlords signed a handwritten agreement, witnessed by A.W., in which the Tenant agreed to vacate the rental unit on December 14, 2019. He stated that as part of this later agreement, L.B. had also agreed to refund half of the rent for December, 2019 and assist him in his efforts to find a new residence. These latter terms were not mentioned on the November 30, 2019 notice of termination.
9. However, on December 7, 2019, A.W. called the Tenant to advise that the locks to the rental unit had been changed and that all of his personal property had been deposited outside the unit. He immediately contacted the police.
10. When he arrived at the rental unit, L.B. and “some guys” she had hired to remove his property were present. He recalled that L.B. stood on the porch and yelled at him while the hired movers threatened him, apparently at her behest. When the police arrived, the officers advised L.B. that she could not evict the Tenant in this manner and his property was moved back into the rental unit. The Landlord, Adrian Blackbird (‘A.B.’), changed the locks back to their original configuration.
11. The Tenant reiterated his intention to vacate the rental unit on December 14, 2019 to L.B. and asked that she comply with their agreement. According to the Occurrence Report generated by Chatham-Kent Police dated December 7, 2019, “police found common ground with both parties in which MARTIN said he would be out in two (2) weeks as of December 7, 2019.” According to the police report, the officers cautioned L.B. that “if she was looking to get MARTIN out of the apartment, she would have to go to the landlord/tenant board and file a grievance with them and evict the tenant lawfully.” Inaccurate terminology aside, the parties agreed at the hearing that L.B. had been notified on December 7, 2019 that she could not unilaterally evict the Tenant outside the Board’s formal processes.
12. L.B. testified that although the Tenant paid the rent for October and November, 2019, as of December 7, 2019, he had failed to pay anything for December, 2019. She testified that, despite the parties’ written agreement to terminate the tenancy as of December 14, 2019, she believed that the tenancy would terminate effective November 30, 2019. While she did not explain the basis for this theory, she also noted that she believed that she was authorized to evict the Tenant for non-payment of rent at any point. At the hearing, she readily acknowledged that she removed his property from the rental unit on December 7, 2019, but stated that she was unaware that this action was illegal. The evidence also indicated that the Landlords did not provide the Tenant with any warning of their intention to evict him or discard his property.
13. L.B. agreed that she never served the Tenant with an N4 notice of termination or any other notice of termination. Evidence submitted by the Tenant also tends to undermine L.B.’s purported grounds for the illegal eviction on December 7, 2019. Specifically, an email dated July 15, 2020 from the Tenant’s case worker, M.K., confirmed that O.D.S.P. had paid $390.00 in shelter funds to the Tenant on November 29, 2019 for the rent for December, 2019 and that O.D.S.P. paid $487.50 for the full rent for January, 2020 directly to L.B.
14. At the hearing, L.B. acknowledged that she had received the rent for December, 2019 and January, 2020 and agreed that she owed the Tenant at least one and half month’s rent as a refund, less $50.00 for reasons not clearly explained.
15. Ultimately there was no dispute that on December 7, 2019, the Landlords illegally entered the rental unit and altered the system on a door giving entry to the rental unit during the Tenant’s occupancy of the rental unit and without giving the Tenant replacement keys. While the Landlords reversed the latter action on the same day by changing the locks back, they only did so at the direction of the Chatham-Kent Police. By discarding the Tenant’s property and allowing theft by their movers, the Landlords also harassed the Tenant and substantially interfered his reasonable enjoyment of the rental unit and the residential complex.
16. While the Landlords appear to rely upon their own lack of diligence regarding their duties and obligations under the Act, no such defence of ignorance exists. As well, if they intended to portray their actions on December 7, 2019 as truly nothing more than a good faith mistake rather than the first salvo in a pattern of harassment to drive the Tenant out of the house, their subsequent conduct over the following week severely undermined such a self-serving representation.
17. For the next five days, the Tenant stayed in the rental unit, afraid of another illegal lockout. However, he testified that after he eventually ventured out on December 12, 2019, he returned to find his belongings again dumped on the lawn and the locks changed. Specifically, his clothes were left in bags and his electronics were scattered on the lawn. Feeling defeated by the Landlords’ second illegal lockout in less than a week, he rented a van and moved in with a friend on a temporary basis. He testified that he was unable to recover all of his property since the movers from December 7, 2019 had stolen several items. As well, his neighbour S. had advised him that some of his property had been found in the garbage. As it turned out, S. was likely no friend to the Tenant, since L.B. strongly suspected that S. had helped herself to some of his property as well.
18. The Tenant described the experience as extremely embarrassing as he was prevented from living in the residence for which he had paid. It was not until February 1, 2020 that he was able to secure more stable housing.
19. The Landlords did not contest the Tenant’s evidence that his property was removed from the rental unit on December 12, 2019. However, L.B. attributed this action to A.W., whose friendship with the Tenant had spiralled into bitter resentment over his belief that the Tenant had stolen from him. Apparently, a staunch adherent to the Old Testament principle of “an eye for an eye,” A.W. opted to take matters into his own hands, but not without first telegraphing his planned thievery to his Landlord, L.B.
20. Text messages between L.B. and A.W. starting on an unknown date and running through December 17, 2019 confirm that A.W. had notified L.B. of his intention to sell or dispose of the Tenant’s property as retaliation for the latter’s alleged theft. As late as December 16, 2019, the text messages indicated that L.B. was uncertain whether the Tenant still intended to vacate the rental unit, but was well aware that A.W. had stolen his property. A.W. also proposed changing the locks to the rental unit to ensure that the Tenant could not return to safeguard or retrieve his belongings. As the witness to the November 30, 2019 agreement, A.W. would have known that the Tenant believed he had a right to occupy the rental unit until at least December 14, 2019 and therefore may not have anticipated an earlier eviction.
21. On December 21, 2019, L.B. asked A.W. by text message if A.W. had packed up the Tenant’s clothing, but speculated at the hearing that the neighbour, S. had taken it. The text message further confirmed that L.B. expected to receive some proceeds from A.W.’s sale of the Tenant’s property.
22. The Landlords’ Legal Representative rightly noted that there was no evidence to prove that either of the Landlords had personally removed the Tenant’s property from the rental unit on December 12, 2019. However, L.B. was well aware that A.W. intended to dispose of and sell the Tenant’s belongings without his consent and cooperated with his illegal scheme. Not only did she fail to warn A.W. against this plan, she took no action to notify the Tenant of A.W.’s criminal intentions to steal his property and confirmed that she expected to receive some share of the proceeds of any such sale. At the hearing, she confirmed that she ultimately received some proceeds from A.W.’s sales.
23. The Landlords had a duty to the Tenant to prevent interference with his reasonable enjoyment of the rental unit and the residential complex from the actions of other residents. The instant L.B. became aware of A.W.’s plan to steal from the Tenant, she had a positive duty to the Tenant to prevent this illegal entry and theft from occurring. Instead, L.B. acquiesced to A.W.’s theft as it served her own unlawful purposes. Thwarted by the police from illegally evicting the Tenant on December 7, 2019, she opted to capitalize on the greed and self-entitled dishonesty of her other tenant as a second opportunity to drive the Tenant from the unit and turn a small profit in the process.
24. As A.W. offered L.B. a portion of the proceeds of his sale of the Tenant’s property and she acquiesced to this arrangement, I find that she conspired with A.W. as her agent to prevent the Tenant from collecting the items and to sell some of his property.
25. Black’s Law Dictionary, 6th ed. defines an “agent” as “a person authorized by another (principal) to act for or in place of him; one instructed with another’s business.” In the present case, I find that L.B. authorized A.W. as her agent, albeit passively, to seize the Tenant’s personal property in return for a portion of the proceeds of any sale of his property.
26. As a result, I find that through her agent, A.W., L.B. breached sections 40 and 41 of the Act, which prohibit the Landlords from seizing the Tenant’s property in default of payment and selling, retaining or disposing of his property except under narrow circumstances, none of which applied to the present facts:
40. No landlord shall, without legal process, seize a tenant’s property for default in the payment of rent or for the breach of any other obligation of the tenant.
41. (1) A landlord may sell, retain for the landlord’s own use or otherwise dispose of property in a rental unit or the residential complex if the rental unit has been vacated in accordance with,
(a) a notice of termination of the landlord or the tenant;
(b) an agreement between the landlord and the tenant to terminate the tenancy;
(c) subsection 93 (2); or
(d) an order of the Board terminating the tenancy or evicting the tenant.
27. In Mputu v. Wright, the Ontario Superior Court held that there is a positive obligation on the landlord to make the tenant’s property available and that is not the tenant’s responsibility to make such arrangements with the landlord.[1] This principle was approved by the Divisional Court in Beauge v. Metcap Living Management Inc.[2]
28. In the present case, the prevailing agreement between the parties terminated the tenancy effective December 14, 2019, not whenever A.W. or L.B. had a convenient opportunity to steal his belongings and sell them for personal gain. As the evidence overwhelmingly demonstrated that the Tenant’s rent had been paid in full by O.D.S.P. to January 31, 2020, any proceeds from the sale of the stolen property would have represented a profit to the Landlords and not funds expected in default in the payment of rent, legal or otherwise.
29. I find that the Landlords illegally evicted the Tenant on December 12, 2019 and, while they disputed his evidence that they changed the locks on that date, through the hostile actions of their agent, A.W., they effectively barred the Tenant from residing in the dwelling by rendering it uninhabitable. It would have been reasonable for the Tenant to conclude that these attacks against his enjoyment of the premises would have continued had he attempted to remain in the rental unit.
30. In doing so, the Landlords and their agent also harassed and obstructed the Tenant, entered the rental unit illegally, altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys, and substantially interfered with the Tenant’s reasonable enjoyment of the rental unit.
31. The Tenant also alleged that the Landlords or their agent withheld a reasonable supply of a vital service, care service, or food that the Landlords were obligated to supply under the tenancy agreement or deliberately interfered with the reasonable supply of vital service, care service, or food. As there was no evidence submitted of any interference with utilities or other services, it appears that the Tenant intended to emphasize that during the period after he was illegally evicted from the rental unit, he was unable to avail himself of any vital services to which he was entitled under the tenancy agreement. As a result, this consequence has been considered under the broader claim of substantial interference.
32. I find that in light of the Landlords’ high-handed and disruptive conduct, the Tenant is entitled to an abatement of rent. As the conduct of L.B. and A.W. fully deprived the Tenant of any use of the rental unit between December 12, 2019 and January 31, 2020 and therefore caused substantial disruption to his ability to normally reside in the rental unit, significantly impinging on his use and enjoyment of the residence, I find that the Tenant’s request for a 100% abatement for this period is reasonable in all of the circumstances.
33. The Tenant offered uncontested evidence that a number of Christmas gifts and $400.00 were not returned. Although he stated in the T2 Application that he lost $800.00 in tools and $500.00 in “clothes, shoes and personal items,” he neither submitted any specific evidence regarding these items at the hearing nor any evidence to support his valuations. However, while the Landlord’s Legal Representative took the position in his submissions that the Tenant’s claim for compensation should be denied for lack of substantiation, the Tenant’s valuations were not contested at the hearing, nor was his evidence that these specific items were not recovered.
34. In Beauge, the Divisional Court held that it was reasonable for the Board to award compensation based upon a reasonable estimate of the replacement costs for property lost as a result of the landlord’s breach of subsection 41(1) of the Act:
9. The Board heard evidence about the possessions of the respondent that were in the apartment unit, including two couches, a large television, a bed, two night tables, a stereo, a lap top, linen, clothes and many other items. The Board made an estimate of the reasonable replacement costs. It made no error of law in doing so. The estimate was a reasonable one in the circumstances, as broken down by the Board.[3]
35. In the present case, I find that the Tenant’s estimate of the replacement cost of tools and clothing was reasonable in all of the circumstances on the balance of probabilities and uncontested by the Landlords.
36. In addition, as I find that the Tenant vacated the rental unit as a result of the Landlords’ conduct, I find that would be entitled to compensation for his moving costs. As with his estimate for the cost to replace his discarded property, his $350.00 estimate for the cost of a van rental, gasoline and related moving expenses was reasonable in all of the circumstances.
37. The Tenant also requested an administrative fine in response to the Landlords’ egregious conduct. I find that the Landlords actively chose to harass the Tenant and conspire with A.W. to steal his property and evict him rather than simply follow the lawful processes under the Act to terminate the tenancy.
38. Pursuant to Interpretation Guideline 16, an administrative fine is distinct from an abatement as a fine is intended to encourage compliance with the Act and to deter landlords from engaging in similar activity in the future. As I find that the Landlords in the present case have shown a blatant disregard for the Act and other remedies will not provide adequate deterrence and compliance, I find that the Tenant’s request for an administrative fine of $1,000.00 is appropriate in all of the circumstances.
39. Lastly, the Tenant requested an award of $5,000.00 in general damages based upon the Landlords’ egregious conduct pursuant to paragraph (f) of subsection 31(1) of the Act. In support of this remedy, the Tenant’s Legal Representative relied on the Ontario Divisional Court’s analysis in Mejia v. Cagini.[4] In that case, an unquestionably toxic relationship between the parties culminated in an assault upon the tenant by three friends of the landlord, in the presence of the landlord. The Ontario Rental Housing Tribunal found the assault took place in the presence of the tenant’s family and that its purpose was to put pressure upon the tenant to vacate the premises. The tenant was required to attend hospital for treatment. The Tribunal did not find that the landlord had himself committed the assault, but found that he did nothing to stop it and that he was responsible for the actions of his friends. The Tribunal found that the landlord had thereby interfered with the reasonable use and enjoyment of the apartment by the tenant and his family. Similarly, in the present case, although the Landlords may not have personally disposed of the Tenant’s property on December 12, 2019, L.B. knowingly collaborated with an agent to do so and derived a benefit from this agent’s actions.
40. As in the present case, the tenant in Mejia did not seek damages in tort, but rather damages arising out of the breach of his right to quiet enjoyment of his apartment, pursuant to the rental contract.
41. While I recognize that the facts in Mejia were slightly more extreme, the basis of the Divisional Court’s findings regarding unacceptable conduct that impaired the Tenant’s right to quiet enjoyment remain applicable to the present case. Following the analysis in Mejia, I find that the Landlords’ scheme to allow another tenant to rob the Tenant of his personal property in his home in exchange for a share of the proceeds of this crime and illegally evict him reprehensible in the extreme. In light of all of the circumstances, I find that an award of $5,000.00 in general damages for the Landlords’ breach of the Tenant’s contractual right to quiet enjoyment is warranted.
42. This order contains all of the reasons in this matter and no further reasons will issue.
It is ordered that:
1. The Landlords shall pay to the Tenant $537.50 as an abatement of rent.
2. The Landlords shall also pay to the Tenant $1,300.00. This represents the reasonable costs that the Tenant will incur to replace property that was disposed of as a result of the Landlords’ actions.
3. The Landlords shall also pay to the Tenant $350.00 which is the estimated reasonable out of pocket expenses the Tenant incurred as moving costs.
4. The Landlords shall also pay to the Tenant $5,000.00 in general damages.
5. The Landlords shall also pay to the Tenant $50.00 for the cost of filing the application.
6. The total amount the Landlords owe to the Tenant is $7,237.50.
7. The Landlords shall pay the Tenant the full amount owing by February 12, 2021.
8. If the Landlords do not pay the Tenant the full amount owing by February 12, 2021, they will owe interest. This will be simple interest calculated from February 13, 2021 at 2.00% annually on the balance outstanding.
9. The Tenant has the right, at any time, to collect the full amount owing or any balance outstanding under this order.
10. The Landlords shall also pay to the Board an administrative fine in the amount of $1,000.00 by February 1, 2021.
11. Subsection 196(1) of the Act shall apply to any unpaid balance of this fine:
196. (1) Upon receiving information that an applicant owes money to the Board as a result of having failed to pay any fine, fee or costs,
(a) if the information is received on or before the day the applicant submits an application, an employee in the Board shall, in such circumstances as may be specified in the Rules, refuse to allow the application to be filed;
(b) if the information is received after the application has been filed but before a hearing is held, the Board shall stay the proceeding until the fee, fine or costs have been paid and may discontinue the application in such circumstances as may be specified in the Rules;
(c) if the information is received after a hearing with respect to the application has begun, the Board shall not issue an order until the fine, fee or costs have been paid and may discontinue the application in such circumstances as may be specified in the Rules. [...]"
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