In one of our previous posts we discussed what can qualify as a "reasonable window" of entry and provided examples from the LTB and the Divisional Court.
Now, let's look at the frequency of entries.
The LTB Interpretation Guideline 19 states:
"Frequency of inspections
In carrying out repairs, replacements and other work, the landlord should make reasonable efforts to limit the frequency of entries to those actually necessary to accomplish the work.
The landlord should also make reasonable efforts to limit the frequency of entries in other circumstances allowed under section 27 of the RTA such as carrying out inspections of the rental unit.
If the Board determines that the landlord has made unnecessary or unreasonable entries into the rental unit, the Board may find that the landlord has interfered with or harassed the tenant or that the landlord has substantially interfered with the tenant's reasonable enjoyment of the rental unit or the residential complex."
Let's look at some examples:
1.
1) TET-65171-15 (Re), 2016 CanLII 38275 (ON LTB), <https://canlii.ca/t/gs7wj>
"16. A landlord does not have an unfettered right to inspect a unit even with proper notice.
[...]
18. What this means is that a landlord cannot inspect the unit for any reason under the sun. The Landlord can only inspect the unit for one of the listed reasons. Further, I believe that most reasonable tenants would find a program of unnecessary monthly inspections to be oppressive and an invasion of privacy. So unless there is disrepair or some other listed and reasonable reason for entry, the Landlord must take care in not threatening an oppressive regime of entries."
2.
The lease clause that allowed monthly inspections was treated as "unreasonable" and the provision was replaced with an order to limit entries to "an acceptable number", "such as the generally accepted twice a year inspections".
2) TEL-27333 (Re), 2010 CanLII 18684 (ON LTB), <https://canlii.ca/t/29bkc>
"35. The terms of the tenancy agreement clearly indicates that the Landlord intended to maintain close, frequent supervision of the unit/property. In addition to twice-a-yearly inspections, the agreement also includes monthly inspections, for the purpose of checking the smoke/carbon monoxide monitors, furnace filter, according to the Landlord. As well, the Landlord randomly visited the property to oversee his possessions stored in the un-partitioned garage.
[...]
38. Based on the evidence presented, I find that the Landlord’s visits to the property, on the basis of inspection, to be excessive and unwarranted. There was no evidence that the monitors or the furnace filter required monthly inspections, or that a bi-annual inspection for this purpose was unreasonable. Furthermore, the fact that the Landlord, in keeping with the terms of the agreement, kept his possessions in the shared garage, leads me to believe that he used this as a reason for visiting as he chose.
39. While these terms obviously worked in the Landlord’s favour, I find that his frequent, unannounced, excessive appearance at the property, undoubtedly made the Tenants/occupants feel as if they were constantly being watched by the Landlord; thereby substantially interfering with their reasonable enjoyment of the unit. I also find no reason to doubt N.S. evidence that on occasions when the Landlord might not have been aware that there was someone in the unit, while he was on the property, the Landlord likely peered through the windows.
40. Regardless of the agreement, the Act requires that a landlord ensure a tenant/member of the tenant’s family the comfortable enjoyment of the unit/premises. In my view, the Landlord’s conduct in this case, compromised the Tenants’/their family members’’ reasonable enjoyment of the unit. The Landlord will be required to limit his inspections, except in the case of emergency, to an acceptable number, such as the generally accepted twice a year inspections, so as not to intrude on the Tenants/occupants or to make them feel watched and uncomfortable."
3.
Quarterly inspections are quite commonly accepted as reasonable, too. See, for example: Shelby Whittick's 3) TEL-87759-18 (Re), 2018 CanLII 42911 (ON LTB), <https://canlii.ca/t/hs1d6> or Renee Lang's 4) TSL-11277-19 (Re), 2020 CanLII 31418 (ON LTB), <https://canlii.ca/t/j6w04>.
4.
Ultimately, the required frequency of entries would be fact-driven, so landlords should be ready to explain the reasoning behind the entries, inspections, etc.
It is worth noting that RTA subsection 27(1)(4) articulates two conditions for entries for inspection purposes, i.e. the right to enter for inspection is certainly not absolute.
"Entry with notice
27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
[...]
4. To carry out an inspection of the rental unit, if,
i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
ii. it is reasonable to carry out the inspection."
Update:
Example: TST-04945-19 (Re), 2019 CanLII 134584 (ON LTB), <https://canlii.ca/t/j6w1x>
"19. From the list of permissible reasons for serving a notice of entry, the one that is closest to the reason given by the Landlord is to carry out an inspection of the rental unit. However, that reason is further qualified by paragraph 4 ”i“ of subs. 27(1); an inspection is only a permissible reason if it is for the purpose of determining whether the rental unit is in a state of compliance with the Landlord’s maintenance obligations. The Landlord’s stated purpose was to check out the unit, not to assess her compliance with maintenance obligations, but because she is going to move in. This is not a valid purpose for serving a notice of entry under s.27 of the Act."
5.
"17. I am satisfied on a balance of probabilities that by delivering four unnecessary notices that cover a total of eight possible days of entry over three months (February – April, 2016) the Landlords and/or their agents did not limit the frequency of the notices to occasions when it was necessary for them to enter the rental unit. In other words, I find that the volume of notices of entry the Tenants received in February, 2016 to April, 2016 was unreasonable."
5) TST-82173-17 (Re), 2017 CanLII 70566 (ON LTB), <https://canlii.ca/t/hmn3r>
"The volume of notices was unreasonable
11. Section 27 of the Act states that a landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry in certain circumstances, including to carry out a repair or replacement or to do work in the unit; and to carry out an inspection of the rental unit if the inspection is for the purpose of determining whether the Landlords have complied with their maintenance obligations and it is reasonable to carry out the inspection.
12. The Board’s Guideline 19, The Landlord’s Right of Entry into a Rental Unit, deals with the issue of frequency of entry. The guideline states:
In carrying out repairs, replacements and other work, the landlord should make reasonable efforts to limit the frequency of entries to those actually necessary to accomplish the work. The landlord should also make reasonable efforts to limit the frequency of entries in other circumstances allowed under section 27 of the [Act] such as carrying inspections of the rental unit.
13. The guideline states that if the Board determines that the landlord has made unnecessary or unreasonable entries into the rental unit, the Board may determine that the landlord has substantially interfered with the tenant’s reasonable enjoyment of the rental unit or the residential complex. I think that it is fair to say that the Board may also determine that a landlord has substantially interfered with the tenant’s reasonable enjoyment if the landlord frequently delivered unnecessary or unreasonable notices of entry to the Tenant, regardless of whether the entries were actually carried out.
14. In the present case, the Tenants claim that the number of notices of entries they received was unreasonable and excessive particularly because some of the notices were for unnecessary repairs and/or some of the notices resulted in no one attending/entering the rental unit.
15. For example, one notice was for entry on June 30, 2016 to inspect or repair “plumbing deficiencies”. Another notice was for entry on June 28, 2016 to inspect or repair “kitchen – broken, slanted countertop”. The Tenants provided uncontested testimony that nothing was wrong with the plumbing or the kitchen counters when these notices of entry were delivered. The Tenants also provided uncontested testimony that no one attended or entered the rental unit pursuant to the notice about plumbing, which further indicates that the notice/entry was not necessary. The Landlords did not present any evidence that the notices were justified for one of the purposes set out in section 27 or that someone attended the unit on June 30, 2016 regarding the plumbing. Accordingly, based on the Tenants’ uncontested evidence, I find that these notices were not necessary.
16. The Tenants also gave uncontested testimony that no one attended the rental unit pursuant to two other notices of entry the condominium corporation delivered for entries on “Monday, March 28th, 2016 thru Thursday, March 31st, 2016” and “Wednesday, April 6, 2016 and Friday, April 8th, 2016” to complete cabinetry repairs. The Tenant, PJ, testified that a contractor ultimately attended the rental unit for these repairs on April 15, 2016 pursuant to a separate notice of entry the Tenants received. The Landlords did not present any evidence that someone attended the rental unit pursuant to the first two notices of entry about cabinetry repairs. Accordingly, based on the Tenants’ uncontested evidence, I find that the first two notices of entry that were delivered for cabinetry repairs were unnecessary.
17. I am satisfied on a balance of probabilities that by delivering four unnecessary notices that cover a total of eight possible days of entry over three months (February – April, 2016) the Landlords and/or their agents did not limit the frequency of the notices to occasions when it was necessary for them to enter the rental unit. In other words, I find that the volume of notices of entry the Tenants received in February, 2016 to April, 2016 was unreasonable."
6.
$150 in rent abatement ordered for failure to minimize the number of entries to that which was necessary, as it was deemed to rise to the level of "substantial interference" (RTA s. 22). $50 ordered for each "unreasonable entry":
"20. While some of the notices of entry relate to entries by external parties, such as the fire department, and telecommunications providers, many of the entries are for inspections that might have been combined with entries for other purposes so as to minimize the number and frequency of the required entries. The Landlord offered no evidence to show that it had made a reasonable effort to limit the frequency of the entries."
6) TNT-97623-17 (Re), 2018 CanLII 42641 (ON LTB), <https://canlii.ca/t/hs0dx>
"Harassment and interference by multiple notices of entry
18. The Tenants claim that the Landlord is serving notices to enter with such frequency that it amounts to substantial interference with their reasonable enjoyment. They point to 11 notices of entry in the approximately 11 month period from November 24, 2016 to October 11, 2017. There were 5 notices and entries in the period from May 1, 2017 to May 29, 2017 alone.
19. While all of the entries appear to be for purposes for which entry is permitted under the Act, a landlord should also make reasonable efforts to limit the frequency of entries [see Guideline 19 of the Board’s Interpretation Guidelines].
20. While some of the notices of entry relate to entries by external parties, such as the fire department, and telecommunications providers, many of the entries are for inspections that might have been combined with entries for other purposes so as to minimize the number and frequency of the required entries. The Landlord offered no evidence to show that it had made a reasonable effort to limit the frequency of the entries.
21. Therefore, I find that the Landlord made unreasonable entries into the rental unit, and that the Landlord thereby interfered with the reasonable enjoyment of the rental unit by the Tenants. On the evidence before me, I find that, had reasonable efforts been made to reduce the frequency of visits, the number of entries could have been reduced by three, and I find that the Tenants are entitled to an abatement of $50.00 for each unreasonable entry for a total abatement of $150.00."
7.
$1,000 rent abatement ordered based on an overall pattern of illegal entries:
7) Gustafson v Stevens, 2020 CanLII 117910 (ON LTB), <https://canlii.ca/t/jgm7t>
"13. The Board usually considers the purpose of the entry, and whether a maintenance request had been made, if so the type and complexity of repair, replacement or work being undertaken was necessary and, the location of the work and the extent to which the entry affects the tenant's ability to use the rental unit. What is reasonable will depend on the facts and circumstances of each case.
14. As set out in the Board’s Guideline 19, the Landlord’s right of entry into a rental unit, deals with the issue of frequency of entry. The guideline states:
In carrying out repairs, replacements and other work, the landlord should make reasonable efforts to limit the frequency of entries to those actually necessary to accomplish the work. The landlord should also make reasonable efforts to limit the frequency of entries in other circumstances allowed under section 27 of the [Act] such as carrying inspections of the rental unit.
15. The guideline states that if the Board determines that the landlord has made unnecessary or unreasonable entries into the rental unit, the Board may determine that the landlord has substantially interfered with the tenant’s reasonable enjoyment of the rental unit or the residential complex.
16. In the present case, the Tenant claims that the number of entries was unreasonable and excessive particularly because they were for unnecessary repairs and did not provide a specific time of entry or even a window of time.
17. The Landlord testified that she did provide advance notice to the Tenant prior to the September 25, 2019 entry and the purpose of the entry was to conduct an annual inspection of the furnace and fireplace. On cross examination of the Tenant he acknowledged receiving a note regarding the inspection, but that the note did not set out a time of entry.
18. The Landlord also stated that the condition of the rental unit on September 25, 2019 was found to be, in her opinion, in disarray and unsave (sic) because of the proximity of some of the Tenants’ belongings to the fireplace. She asked the Tenant to tidy up and remove the excess belongings from the unit. The second entry into the rental unit on October 3, 2019 was to confirm if the Tenant had cleared away and removed the hazardous belongings and material away from the fireplace.
19. The Landlord asserted that the Tenant was well aware of the October 3, 2019 re- inspection and why it was being conducted and raised no objections.
20. The Tenant acknowledged he did not raise an objection to the proposed entry in advance of October 3, 2019. I found this entry not to be illegal over the safety concerns alleged.
21. With respect to the other entries raised by the Tenant, I find that the Tenant knew that the notes of entry did not comply with the Act, but he made no effort to contact the Landlord to object and to request that the entry be rescheduled.
22. I agree with the Tenant that the Landlord’s notice of entry failed to comply with the requirements of section 27 of the Act.
23. I am satisfied that illegal entries occurred, and that this interfered to some extent with the Tenant’s reasonable enjoyment of the rental unit, I am not satisfied that the conduct of the Landlord in this case rises to the level of substantial interference with the Tenant’s reasonable enjoyment of the rental unit.
24. I also find that there is insufficient evidence before me to conclude that the contractor damaged the Tenants’ property other than leaving the unit in a state of uncleanliness.
25. The Tenant further testified that the Landlord’s request of the Tenant to tidy up and remove the excess belongings as well as cleared away and removed the hazardous belongings and material away from the fireplace was harassment.
26. In this instance, based on the testimonies given, on a balance od probabilities, I find the continued request by the Landlord for the Tenant to remove the hazardous belongings and material away from the fireplace to be a reasonable request over the residential complex safety concerns, and not to be a form of harassment.
27. The Tenant in the application seeks a 12-month 100% rent abatement of $10,245.00.
28. Guideline 6 of the Board’s Interpretation Guidelines states that, in determining the amount of an abatement for the violation of a tenant’s rights, the Board will consider factors such as the landlord’s intentions in doing the action complained of by the tenant, whether the landlord was motivated by malice toward the tenant, the extent of the harm suffered as a result of the landlord’s actions, whether the tenant contributed to or aggravated the situation, the frequency or duration of the landlord’s actions, including the number of occasions on which the conduct occurred.
Determinations:
29. It is clear from the evidence before the Board that the Tenant became increasingly upset about the Landlord’s entries over time as they considered it invasive.
30. The Landlord concedes that there were illegal entries that occurred and that is not something that can be ignored. However, I find that the circumstances do not indicate a very serious or blatant violation of the Tenant’s rights.
31. To summarise, the evidence supports the conclusion that the entries on October 17, October 18 ,2019 and on November 12,13,14, 2019 failed to comply with the Act only to the extent that insufficient information was provided for the entries, particularly that painting was not mutually agreed upon.
32. The Guideline suggests that the abatement may be expressed as a portion of the rent that would reflect the seriousness of the expected effects on a tenant, which would normally be allowed for the periods in which the actions occurred.
33. Abatement of the rent is a contractual remedy intended to reflect the idea that if a tenant is paying for a bundle of goods and services and not receiving everything being paid for, then the rent should be abated proportional to the difference between what is being paid for and what is being received.
34. Here the Tenants were paying for the privacy rights they were entitled to under the Act and on at least three occasions, not receiving them. They were also paying for the right to be free from unwarranted sarcasm and hostility. So, I believe they are entitled to some abatement of the rent.
35. Neither party offered submissions with respect to the appropriate quantum of abatement.
36. In this instance, the case involved a history or pattern of illegal entry, the giving of notices not in compliance with the Act. Here there was instances of entry where no notice was given at all. An order will issue for abatement of the rent in the amount of $1,000.00."
8.
8) TST-10094-19 (Re), 2020 CanLII 31439 (ON LTB), <https://canlii.ca/t/j6w3f>
"13. The Tenants take issue with the frequency of the entries and the occasions when prospective purchasers tracked dirt into their unit during showings. The Tenants submitted a list of dates for all the showings between May 30, 2019 (when showings began) and October 31, 2019 (when the Tenants moved out). The list indicates that there were 35 showings over 153 days. The numbers work out to an average of one showing every four days or 1-3 showings per week over a six-month period. I cannot find that this amounts to an excessive or unreasonable number of showings."
9.
A case of monthly fire inspections:
9) Albu v Central Erin Property Management, 2020 CanLII 120668 (ON LTB), <https://canlii.ca/t/jgt9v>
"10. The Tenant said that she complained about the frequency of the entries in 2017, and once in 2019.
11. The Tenant said that the fire inspector told her that the door to her rental unit can be examined from the outside in order to meet the requirements of monthly inspection by the Landlord. The Tenant did not provide the fire inspector as a witness.
12. The Tenant said that her feeling of unease about the alleged harassment has been compounded by an illegal entry by an employee of the Landlord who she knows as “Don”, who entered her unit without notice or knocking on February 24, 2020, in order to carry out a maintenance repair.
13. The Tenant said that she was sitting on her couch on February 24, 2020, when “Don” just opened her door. She said that she was shocked and had to demand that he leave her rental unit. The Tenant said that when she complained to the superintendent about this incident, he told her that “Don” said that he had knocked on the door.
14. The Tenant said that Don has come to her door and looked in through the peephole, and that he has loitered around her rental unit. She presented a video taken from her front door of Don peeping in through the peephole, as well as a photo of Don loitering around her rental unit.
15. The Tenant said that the substantial interference/harassment of the constant entries has caused her stress and worry. She said that she is a single mother, and that she now feels insecure in her rental unit, and she also feels like someone is “invading her life”. She said, further, that she feels that every month, for at least two days of the month, she has to remove everything personal from sight in her rental unit. The Tenant said that this worry is in the back of her mind at all times.
Analysis and Reasons:
Substantial Interference:
16. Section 27 of the Residential Tenancies Act, 2006 (the ‘Act’) provides that a Landlord may enter a rental unit for various purposes, as long as the Landlord has provided 24 hour written notice. However, the Board’s Interpretation Guideline 19, states that, “in carrying out repairs, replacements and other work, the landlord should make reasonable efforts to limit the frequency of entries to those actually necessary to accomplish the work.” In addition, the “….landlord should also make reasonable efforts to limit the frequency of entries in other circumstances allowed under section 27 of the RTA such as carrying out inspections of the rental unit.”
17. The Tenant claims that the Landlords are serving notices to enter with such frequency that it amounts to substantial interference with her reasonable enjoyment. She points to the notice of entry every single month of her tenancy for a fire inspection.
18. A fire inspection appears to be for a purpose for which entry is permitted under the Act. However this right is mitigated by the Landlord’s obligation to make reasonable efforts to limit the frequency of entries pursuant to Guideline 19 of the Board’s Interpretation Guidelines, mentioned above.
19. The Tenant did not provide any evidence to show that the Landlord was entering her rental unit for any other purpose than fire inspection. She also testified that the Landlord always provided her with proper, written, 24 hours notice of the inspection.
20. Although the Tenant said that a fire inspector told her that inspection of the inside of her unit was not required under the Fire Code, she did not produce a fire inspector as a witness, nor did she provide any documentation to prove what is, or what is not required.
21. It is understandable that the Tenant, as a single mother, feels particularly sensitive about her privacy being violated on a monthly basis. A regular, monthly entry to the rental unit when the Tenant is not present is on the borderline of an acceptable frequency for entry by the Landlords. However, I do not find that the Tenant has provided evidence to prove, on a balance of probabilities, that the monthly inspections, while annoying and intrusive to the Tenant, rise to the level of harassment or a substantial interference with her reasonable enjoyment of the rental unit or the residential complex."
10.
Frequent entries for repairs, rent abatement ordered, as well as an order not to enter for repairs (since the tenant would be vacating soon) unless the entry is for an emergency.
10) EAT-54613-16 (Re), 2016 CanLII 37015 (ON LTB), <https://canlii.ca/t/gs5qg>
"(a) Alleged Illegal Entries
2. The Tenant testified that the Landlord’s many notices of entry “weren’t delivered correctly” as they were “put in my mailbox at any time of the day and week”. However, Rule 5.1(d) of the Board’s “Rules of Practice” states that a notice provided for entry pursuant to section 27 of the Act may be done “by any permitted method of service or posting it on the door of the rental unit” (emphasis added). Subsection 191(1)(d) of the Act states that a notice or document “is sufficiently given to a person other than the Board… by leaving it in the mail box where mail is ordinarily delivered to the person”.
3. Moreover, I note that Rule 4.4 of the Board’s Rules states that “a notice or document may be given to another person on a non-business day and, in the case of a notice, it may become effective on a non-business day”.
4. Notices given under section 27 of the Act must meet the following content requirements pursuant to subsection 27(3) of the Act: The reason for entry, the day of entry, and a time of entry between the hours of 8 a.m. and 8 p.m. Of the notices given by the Landlord to the Tenant and which were provided to the Board, only one failed to provide the anticipated time of entry. The Landlord testified, and I received no evidence indicating otherwise, that ultimately he did not attend the rental unit on the day indicated in the deficient notice.
5. There was some dispute as to whether, having given the appropriate 24-hour notice, the Landlord always knocked or rang the doorbell before letting himself into the rental unit, and/or whether he waited an appropriate amount of time after knocking or ringing the doorbell before letting himself in. The Landlord’s girlfriend, ED, testified that on the day she attended the rental unit with the Landlord, the Landlord knocked before entering. I find that there is nothing in the legislation which requires a landlord to knock or ring a doorbell before entering a rental unit pursuant to a properly served, properly written notice of entry; and in any case, I was not persuaded that the Landlord failed to abide by the general courtesy to do so prior to entering following the provision of a valid notice.
6. I further find that, given the copies of text messages I received, the Tenant very often provided her consent to the Landlord’s written request for entries with less than 24 hours’ notice. Given the Tenant’s consent, these entries, too, were not improper.
7. Given the foregoing information, I find that the Landlord did not illegally enter the rental unit.
(b) Harassment
8. The Tenant alleges that the Landlord has attended the rental unit several times a month since the outset of the tenancy, and that the frequency of his visits, and on a few occasions his demeanour during his interactions with the Tenant, have amounted to harassment.
9. The Tenant wrote to the Board that so often did the Landlord attend the rental unit that the Tenant and her youngest daughter, Witness JG2, began to feel uneasy when he attended. JG2, who is 18 years old, testified at the hearing that she felt “uncomfortable, unsettled, and unsafe”. KZ observed a couple of the Landlord’s visits to the rental unit, and testified when the Tenant told the Landlord her concerns about the plaster dust being everywhere, the Landlord was “dismissive…intimidating…[and] disrespectful” and had a “sense of entitlement” when he was in the rental unit.
10. ED, the Landlord’s girlfriend, attended the rental unit on one occasion with the Landlord. She was there to help him fit a vent into place. She testified that both the Landlord and the Tenant became agitated with each other, with the Landlord “saying let me finish, and [the Tenant] was saying don’t speak to me in this tone.”
11. The Tenant testified that the Landlord yelled at her on four occasions in person and on the telephone. At the hearing, the Landlord acknowledged once telling the Tenant to “[g]et out if you don’t like it, this is the way it is”. After breaking the Tenant’s lamp during a visit, the Landlord failed to reimburse the Tenant for the cost of replacing the lamp, which the Tenant estimated at the hearing was worth about $250.00. The Landlord did not object to the Tenant’s valuation of the lamp.
12. The Tenant alleged that the Landlord’s frequent visits to the rental unit made her feel as though she had “no privacy”. The Tenant and her daughter, JG2, testified feeling “agitated” about the constant concern that the Landlord would attend, as well as worried that their dog would escape during the Landlord’s frequent visits.
13. In determining whether the Landlord harassed (or was otherwise inappropriate with) the Tenant and her daughter, I am mindful of the dictionary definition of the term “harassment”. Black’s Law Dictionary defines harassment as “a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose”.
14. First, I find that the Landlord’s conduct in entering the rental unit and undertaking the repairs was not conduct directed at the Tenant and her daughter – instead, it was to perform the legitimate purpose of maintaining the rental unit. I do not find that the few instances where the parties had arguments and the Landlord lost his cool rose to the threshold of harassment or other conduct which the Board would impugn.
(c) Substantial Interference with Reasonable Enjoyment of the Rental Unit
15. The Tenant also alleged that the state of the rental unit and the Landlord’s many visits to undertake maintenance work substantially interfered with her and her daughter’s reasonable enjoyment of the rental unit.
16. The Tenant testified, and provided photographs demonstrating, that when she moved into the rental unit, it was filthy and cluttered with the previous owner’s belongings. I accept her testimony that she had to spend a lot of time cleaning up the rental unit.
17. Moreover, for months the basement was overtaken by the Landlord’s tools and equipment as he renovated the bathroom, bedroom, and living room. I accept this evidence as well, especially given the photos provided to me by the Landlord, which endorse the allegation.
18. Most significantly, throughout the tenancy, the Tenant has had only limited access to the basement portion of the house, which comprises approximately half of the square footage of the residence. For example, once the bedroom in the basement was finished, the Landlord began work on the basement living room. Throughout the months, the construction work filled the house with dust, which particularly aggravated the health of the Tenant’s daughter, who has asthma.
19. The Landlord states that the parties agreed, prior to the tenancy beginning, that a number of maintenance projects would be undertaken during the tenancy. According to the Landlord, these projects included the renovation of the main floor and downstairs bathrooms, the drywalling of the basement bedroom and living room, and the replacement of the outside doors and all of the basement windows.
20. However, among all of the emails and text messages provided to the Board by the parties, I do not see any that predate the move in which the parties discuss and agree to the extent of the work (excluding that which was to be done in the basement bathroom) which was undertaken during the tenancy. Moreover, the Tenant vigorously refuted the Landlord’s claim at the hearing; in her testimony, except for the work in the basement bathroom, everything was to be completed prior to move-in.
21. Given the foregoing, and contrary to subsections 8(4)(2) and 8(4)(3) of Ontario Regulation 516/06, I find that the Landlord did not inform the Tenant when she was still a prospective tenant of the nature of the work to be carried out, the expected impact on the Tenant and members of her household or the length of time the work was expected to take.
22. The Landlord also argued that it was at the Tenant’s request that a number of projects were undertaken after the start of the tenancy, including the repair of the basement ceiling and flooring. A landlord, pursuant to subsection 20(1) of the Act, has a responsibility for maintaining a rental unit “in a good state of repair and fit for habitation”. That the Tenant identified some work that needed to be done after she moved in does not mean that it was her responsibility for the work or that the Landlord was absolved of his obligation to know that it needed to be done or to give her notice of the major work prior to undertaking it.
23. In determining whether a rent abatement should be awarded, and pursuant to subsection 8(5) of Ontario Regulation 516/06, I am mindful of the following:
1. The nature, duration and degree of interference with the reasonable enjoyment of the rental unit or residential complex that was caused by carrying out of the work.
2. Whether the tenant or former tenant is responsible for any undue delay in the carrying out of the work.
3. The steps taken by the landlord during the work to minimize interference with the reasonable enjoyment of the rental unit or residential complex.
4. Whether the tenant or former tenant took advantage of any service provided by the landlord or arrangement made by the landlord that would minimize interference with the reasonable enjoyment of the rental unit or residential complex.
5. Whether a failure to carry out the work could, within a reasonable period of time, reasonable be expected to result in,
(i) interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by a tenant or member of his or her household;
(ii) a reduction or discontinuation of a service or facility,
(iii) damage or additional damage to the rental unit, the residential complex or anything in the unit or complex,
(iv) a risk to any person’s health or personal safety, or
(v) a breach of section 20 or section 161 of the Act by the landlord.
24. The Landlord’s and Tenant’s submissions are consistent that during the first 73 days of the tenancy, the Landlord visited the rental unit 34 times (although he informally requested additional entries and the Tenant denied him these). Given the dust, the Tenant’s daughter (who eventually occupied the basement bedroom) was unable to move into the residence for 10 days. I further accept the Tenant’s evidence that her personal property was moved around during the repair-work, especially in the basement and garage, and that the constant construction work precluded the Tenant and her daughter from peaceably entertaining their friends, doing homework, and generally enjoying the rental unit.
25. I also accept the Tenant’s evidence that the work has taken much longer to finish than could reasonably be expected. The Landlord’s decision to chip away at the work in small increments, instead of doing all or most of the work in one go, has resulted in the work being carried out over a period of time far in excess of the amount of time that would normally be required. This is contrary to subsection 8(7) of Ontario Regulation 516/06.
26. Given the foregoing, and given especially the extent and duration of the maintenance work that was done in the rental unit (and especially in the basement), and of the substantial interference this caused to the Tenant and her daughter, I find it reasonable to award a 30% abatement off the rent paid by the Tenant for the duration of her tenancy. The abatement will be $2,484.00 ($1,725.00 (monthly rent) x 4 (months, December-March) x 30% (abatement), plus $1,380.00 (rent paid in November) x 30% (abatement)).
27. I find that this abatement reasonably compensates the Tenant for the interference caused by the work. The Tenant’s other requested remedies are denied: I was not persuaded that the Landlord was responsible for the damage to the property that the Tenant left outside, for her alleged lost income, or for the other expenses the Tenant says she incurred, with one exception: The Landlord shall also pay the Tenant $250.00 for the cost of replacing her broken lamp.
28. Finally, the Tenant requested that the Landlord be precluded from undertaking further repairs to the rental unit for the duration of the tenancy. As the parties have agreed to terminate the tenancy on March 31, 2016, I find it reasonable to order the Landlord to refrain from attending the rental unit to make any repairs (unless an emergency so requires) until after the Tenant vacates the rental unit."
11.
The rulings below show that an entry where the door to the unit is opened but the landlord doesn't actually enter can still count as an "illegal entry" if it's done without a written 24-hour notice under RTA section 27 or without consent or without an emergency or other conditions under RTA section 26.
Below are a couple of examples from the LTB, one awarded $100, the other $400 for that type of entry:
"20. As the Landlord’s staff opened the rental unit door without giving proper notice, the Landlord has illegally entered the unit, even if the Landlord’s staff did not step over the threshold. Once the unit door was opened, the Tenant’s privacy interests were engaged. The Landlord’s staff person was able to see inside the unit and had full access to the unit." (TST-76368-16 (Re), 2017 CanLII 60773 (ON LTB), <https://canlii.ca/t/h5zmk>)
"By opening the door, the Landlords have illegally entered the unit." (SWT-07940-17 (Re), 2018 CanLII 42482 (ON LTB), <https://canlii.ca/t/hs07r>)
11) TST-76368-16 (Re), 2017 CanLII 60773 (ON LTB), <https://canlii.ca/t/h5zmk>
"15. At the hearing on January 6, 2017 SR testified that when he came home from work one day some time between July 1 and July 10, 2016, he noticed an envelope sticking out of the side of the rental unit door. SR testified that he could not pull the envelope out of the door without opening the door. SR testified that he videotaped himself attempting to pull the envelope out of the door. At the hearing SR showed a video recording of himself trying to pull an envelope out of the side of the rental unit door and not being able to pull it out because it is stuck. SR testified that he shot this video with his phone as soon as he came home and discovered the envelope sticking out of his door; he had not yet opened his door.
16. SR testified that after he shot the video he opened the unit door, retrieved the envelope, opened it and discovered that it was a notice from the Landlord for a different tenant in another unit.
17. SR submitted that the only reasonable conclusion is that an employee of the Landlord opened the rental unit door then placed the envelope and then closed and locked the door.
18. EN testified that in July 2016 notices to tenants were being served by the assistant building manager, who was new to the position at the time. EN testified that there are no mail slots in the tenants’ doors so notices are served by slipping them under the door or through the side of the door. EM testified that if the Landlord’s staff are unable to fit a document under the door or through the side of the door they will put it in the tenant’s mailbox. EM testified that the assistant building manager does not have keys to the tenants’ units but that she does have access to the keys.
19. The Tenants’ evidence with respect to this incident is direct. SR testified that he came home and saw the envelope sticking out of his door. SR’s video shows him trying unsuccessfully to pull it out. By contrast, the Landlord’s evidence on this point is indirect and circumstantial. The person who served the notice did not testify. EN testified as to what the staff are supposed to do. As the Tenants’ evidence is direct and bears directly on what happened with respect to this particular incident, I find the Tenants’ evidence to be stronger than the Landlord’s evidence. I am therefore satisfied, on a balance of probabilities, that SR came home one day in early July 2016 to find a notice stuck in his door. Given the video footage that shows how the document could not be pulled out of the door, it is more likely than not that the rental unit door was opened in order to put the document into it. I therefore find, on a balance of probabilities that an employee of the Landlord opened the rental unit door without giving written notice of entry.
20. As the Landlord’s staff opened the rental unit door without giving proper notice, the Landlord has illegally entered the unit, even if the Landlord’s staff did not step over the threshold. Once the unit door was opened, the Tenant’s privacy interests were engaged. The Landlord’s staff person was able to see inside the unit and had full access to the unit.
21. The entry in this case was nominal, in the sense that there was no evidence that the Landlord’s staff person did anything other than open the door, put a notice in the doorframe, and then close the door. The impact on the Tenants was minor. SR testified that he was upset that his door had been opened.
22. Based on the nature of the issue, my knowledge of similar cases at the Board, and the impact on the Tenants, I find that the Tenants are entitled to a lump sum rent abatement of $100.00 for the illegal entry."
12) SWT-07940-17 (Re), 2018 CanLII 42482 (ON LTB), <https://canlii.ca/t/hs07r>
"14. Based on the evidence adduced at the hearing, I find that the Landlords illegally entered the unit on November 4, 2016 and July 26, 2017. The Landlords did not provide the Tenants with proper notice to enter on November 4, 2016. I say this because the Landlords’ email of October 31, 2016 which was copied to the Tenants, speaks to entering the unit on November 3, 2016 and to co-ordinate the entry with the Tenants. There was insufficient evidence from the Landlords that there was any notice to the Tenants to enter the unit on November 4, 2016. The Landlords did not provide the Tenants with any notice that they would be checking the locks and opening the unit door on July 26, 2017. By opening the door, the Landlords have illegally entered the unit.
15. I am not of the view that there was any illegal entry on April 10, 2017 because the Tenants allowed the maintenance person into the unit. The Tenants did not have to allow entry and could have refused entry, subject to proper written notice.
16. The Tenants are entitled to an abatement of rent. The Tenants claimed that the monthly rent is $2,450.00 and the Landlord claimed that the monthly rent is $2,200.00 ($2,450.00, less $250.00 rental incentive). The Tenants requested a $500.00 per illegal entry.
17. I am of the view that the Tenants are entitled to a lump sum rent abatement of $600.00 ($200.00 for the illegal entry on November 4, 2016 and $400.00 for July 26, 2017). I took into account the Tenants’ impact statement and that the entry on July 26, 2017 was after the Landlords were advised to provide proper notice of entry."
12.
On the importance of identifying the purpose for entry correctly on notices of entry:
13) TST-04945-19 (Re), 2019 CanLII 134584 (ON LTB), <https://canlii.ca/t/j6w1x>
"16. At the time that the Landlord first gave notice of entry for April 2, 2019 (which she did on March 31, 2019), the stated purpose was to show the property to prospective tenants. However, by this time the Landlord had not served a notice of termination. The Tenants have never served the Landlord with a notice of termination. Accordingly, although the Landlord did inform the Tenants on March 31 that she will show the unit, having done so does not fulfill the requirement under subs. 26(3) of the Act to inform the Tenants of the intention to enter for this purpose because another necessary criterion was not in place: no one had served a notice of termination at that point. Accordingly, the entry on April 2, 2019 cannot be found to be legal on the basis of subs.26(3) of the Act.
17. As noted above, on March 31 the Landlord gave notice that she would enter the unit on April 2 to check the property.
18. Subsection 27(1) of the Act sets out the purposes for which a landlord may give written notice of entry to a tenant:
27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
1. To carry out a repair or replacement or do work in the rental unit.
2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
4. To carry out an inspection of the rental unit, if,
i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
ii. it is reasonable to carry out the inspection.
5. For any other reasonable reason for entry specified in the tenancy agreement.
19. From the list of permissible reasons for serving a notice of entry, the one that is closest to the reason given by the Landlord is to carry out an inspection of the rental unit. However, that reason is further qualified by paragraph 4 ”i“ of subs. 27(1); an inspection is only a permissible reason if it is for the purpose of determining whether the rental unit is in a state of compliance with the Landlord’s maintenance obligations. The Landlord’s stated purpose was to check out the unit, not to assess her compliance with maintenance obligations, but because she is going to move in. This is not a valid purpose for serving a notice of entry under s.27 of the Act.
20. Because the entry on April 2, 2019 was not legal pursuant to either s.26 or s.27 of the Act, the entry was illegal."
14) SWL-93741-16-AM (Re), 2016 CanLII 88166 (ON LTB), <https://canlii.ca/t/gw4rl>
"12. These rather general categories do not offer the Tenant any explanation with respect to the specific nature of the alleged damage to the rental unit. The Landlord also did not obtain any estimates or quotes from a third party to substantiate his estimates of the cost of repairs to the rental unit. He attributed this failure to the Tenant’s refusal to provide access to the rental unit to properly inspect the residence.
13. However, the Tenant took the position that she refused access as the Landlord illegally entered the rental unit on July 20, 2016, as the Landlord’s stated grounds to enter the rental unit for differed from his actual conduct once in the residence. In response to a maintenance request from the Tenant, the Landlord served her with a notice of entry to inspect the kitchen sink. The Landlord attended at the rental unit on or about July 20, 2016 ostensibly to complete this inspection. However, when the Landlord immediately proceeded to conduct an inspection of other parts of the rental unit, rather than to examine the sink, the Tenant and C.H. objected to his presence and asked him to leave.
14. This version of events was supported by H.H., a friend of the Tenant who was present at the residence at the time of the inspection. While H.H. was not inside the rental unit when the Landlord began his inspection, he clearly overheard C.H. ask, “What are you looking at that for?” H.H. then entered the house and found the Landlord complaining to the Tenant about dirty dishes left out in the kitchen. The Tenant then asked the Landlord if he was going to examine the sink or conduct an inspection of the entire house instead. The two continued to argue until the Landlord exited the house and called the police.
15. The Landlord agreed that on the notice of entry for July 20, 2016, he did not indicate that he intended to conduct a general inspection of the house. As a result, I find that as the Landlord stated a false reason for entry on the notice, he entered the rental unit illegally on July, 2016. As he was free to provide an accurate notice of entry to inspect the entire house, but chose not to do so, I find that he was responsible for his own failure to adequately inventory the alleged damage to the rental unit. He also chose not to issue a subsequent notice of entry for a full inspection after July 20, 2016."
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