Painting Walls (Tenant)(LTB)
CEL-74001-18 (Re), 2018 CanLII 88514 (ON LTB)
10. The wall painted a different colour cannot be considered damage to the rental unit. While the Landlord may not like the colour chosen by the Tenant, that is a matter aesthetics and interior decorating, not undue damage.
CEL-72695-18 (Re), 2018 CanLII 141452 (ON LTB)
12. While it is understandable that on-going cooking and smoking within a rental unit will eventually discolour the walls and/or leave a substance on the walls. These are two activities that one would expect to be normally done in one’s home. After more than seventeen years of these continuous activities, without any repair or updating by the Landlord, it is expected that the interior paint (walls) would wear, especially given that the Regulation provides for a useful life of only ten years. It is the Landlord’s obligation to maintain the rental unit.
13. The Landlord submitted that the Tenant never requested any maintenance for his unit. However, regardless of whether or not a tenant requests maintenance, I am satisfied that with a long term tenancy such as in the case here, a landlord ought to be following up after their yearly unit inspections with issues such as interior painting and flooring to ensure they have not out lived their useful life.
Izumi v Skilling, 2020 CanLII 20510 (ON SCSM
4. While jurisdiction was not challenged by the defence, I accept that this court has jurisdiction over the matter based on the authorities cited by Mr. Ellis: Capreit L.P. v. Griffen,  O.J. No. 7338 (Div. Ct.); Brydges v. Johnson, 2016 CanLII 4942 (ON SCSM),  O.J. No. 609 (Sm. Cl. Ct.), affirmed (June 24, 2016), (Ont. Div. Ct.) [unreported]. I am aware of Kiselman v. Klerer,  O.J. No. 5857 (Div. Ct.), which reaches the opposite conclusion but without reference to those two prior cases. Faced with clear conflict amongst the Divisional Court authorities on point and until such time as the issue is resolved by the Court of Appeal, I must choose between them. I prefer to follow those earlier authorities.
32. Based on the evidence of Ms. Izumi concerning the age of the carpets, I infer that the age of the paint was the same: upper floor was new as at 2011 (6 years old), ground floor was original from 1999 (18 years old) and basement was painted a “few years” before the plaintiffs moved out which I would estimate at 2010 (7 years old). There is no specific evidence of the normal lifespan of paint or in other words at what interval fresh paint would normally be applied by a reasonable landlord in general or these landlords in particular.
33. In his submissions Mr. Ellis referenced the chart of lifespans enacted by regulation under the Residential Tenancies Act, 2006, as a guide for normal lifespans. The Schedule to O.Reg. 516/06, lists in Table 8, s. 19, the useful life of interior paint as 10 years. That Schedule is not determinative for purposes of civil liability because it is a guide only for the purpose of determining landlords’ requests for rent increases based on capital expenditures. But is has been considered in these situations – not as a substitute for evidence but merely as a rough guide or comparator: Boardwalk General Partnership v. Ali,  O.J. No. 369 (Sm. Cl. Ct.), at paras. 11-14; Stamm Investments Ltd. v. Contant,  O.J. No. 353 (Sm. Cl. Ct.), at paras. 18-19.
35. Based on the whole of the evidence I am satisfied that the just-mentioned gouge marks and screw-hole damage are significant enough to constitute undue damage caused by wilful or negligent conduct of the defendant. However screw-hole damage can be filled and covered over in the course of a re-paint without amounting to any increased pecuniary loss to the landlords if a paint job was being done anyway. The gouge marks are plainly more serious but may or may not cause any increased pecuniary loss. There is no estimate specifically for the cost of repairing those gouge marks.
36. Based on the evidence I find that the paint was near the point at which it would require a re-paint simply due to age or wear and tear. I appreciate Mr. Ellis’ concession that a 50% betterment factor should apply and certainly compared to the positions taken by landlords in the many similar cases I have seen that proposed reduction appears quite reasonable. But in this particular case in my view even a 50% reduction would amount to overcompensation given the apparent age of the paint in this house.