Repair of Damage (Tenant)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-18
CLNP Page ID:	932
Page Categories:	[Interference of Reasonable Enjoyment (LTB)], [Maintenance Obligations (LTB)]
Citation:	Repair of Damage (Tenant), CLNP 932, <https://rvt.link/b2>, retrieved on 2024-04-18
Editor:	Sharvey
Last Updated:	2024/02/27

S.O. 2006, C. 17 Residential Tenancies Act, 2006, S.O. 2006, c. 17

Tenant’s responsibility for repair of damage

34 The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant. 2006, c. 17, s. 34.

Bruneau v Thomas, 2021 CanLII 94539 (ON LTB)

7. Section 89(1) of the Residential Tenancies Act, 2006 (the ‘Act’) provides that:

A landlord may apply to the Board for an order requiring a tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex and the tenant is in possession of the rental unit. (Emphasis added)

8. The test that must be met is that the damage must be wilfully or negligently caused by the Tenant, another occupant or a guest. In addition, the damage must be undue damage. In other words, the damage must be more than normal wear and tear that occurs over time or as a result of normal daily activities.

NOL-33273-18-RV (Re), 2019 CanLII 86960 (ON LTB)

7. The facts of this case are not disputed. On August 19, 2018 the male Tenant left a voice mail message on the weekend support line at the Canadian Mental Health Association (CMHA) and stated that he “felt like hanging himself”. Shortly after, his caseworker called him back but their call got cut off abruptly before it was completed. The case worker tried to call the Tenant again but he did not answer. The caseworker and/or the person who was on duty to cover the weekend help line reported the Tenant’s statement to the police. The police attended the rental unit and knocked on the door. No one answered. The police broke down the door to the rental unit to ensure that the Tenant was not inside and attempting to commit suicide or otherwise harm himself. No one was at home when the police entered the unit. The police located the Tenant at a nearby park shortly after by ‘pinging’ or locating his cell phone signal.

8. In order to be successful in the L2 application the Landlord, as the applicant, must establish all of the elements of sections 62 and 89 of the Act. It must be established that a tenant, an occupant of the rental unit or a person the tenant permitted in the complex negligently or willfully caused undue damage to the rental unit or complex.

9. Not all types of damage that may occur in a rental unit or residential complex will meet the test or requirements in sections 62 and 89 of the Act.

10. Some damage may not have any element of wilfulness or negligence and a landlord, as the property owner, will have to bear the cost of repairing that damage.

...

29. It is unfortunate that the Landlord has to bear the cost to repair and replace the damaged door. They certainly bear no fault. However, as stated above, not all damage that occurs in a rental unit will be captured under sections 62 and 89 of the Act. If the requirements of those sections are not met, the Board cannot order the cost to repair the damage or terminate the tenancy. The Board is a creature of statue. That means its powers or jurisdiction come directly from the Act. The Board is not a court of equity. It cannot right certain wrongs simply because it would be just or fair to do so.

30. In paragraph 29 of the order the Member makes reference to the fact that the Landlord would have no remedy in Small Claims Court for the door that was damaged by the police. This may have some relevance if the Board were a court of equity. It has no relevance to the test that must be met in sections 62 and 89 of the Act.

31. There is an insufficient direct and casual connection between the Tenant’s actions and the damage to the door. The Tenant did not negligently cause the damage. The Member did not reasonably interpret sections 62 and 89 of the Act since the requirements of those sections were not met. As a result, the Landlord’s L2 application is dismissed.

TST-99550-18-AM (Re), 2019 CanLII 87146 (ON LTB)

29. Section 34 of the Act states:

34. The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.

30. In Dhillon v. PM Management Systems Inc., 2014 ONSC 5407 (CanLII) at para. 14 the Divisional Court wrote: “an event is not a frustrating event if it is foreseen or provided for in the contract or the frustrating event was caused by the fault of a party to the contract.” This statement is in keeping with the earlier decision of the Board in CET-10108-11 issued on February 9, 2011 where it was determined that the tenant’s negligence caused the fires in the rental unit. The landlord took the position that it was justified in locking out the tenant on the basis that the tenant’s actions had led to the damage to the rental unit in the first place and substantially interfered with the other tenants’ reasonable enjoyment of the residential complex.

31. On appeal to the Divisional Court it was held that the responsibility under section 34 of the Act cannot supersede the Landlord’s duty to follow the statutory process for termination under the Act. In a brief endorsement, the Divisional Court denied the landlord’s appeal for the following reasons :

In our view, the appellant improperly regained possession and effectively evicted the respondents from their rental unit without complying with the statutory process and obtaining the requisite order. This is so even though the respondents negligently caused a fire, their second, which caused severe damage mainly to the kitchen. In these circumstances, the appellant was required to comply with s. 20(1) of the Act, make the necessary repairs and allow the respondents to continue their occupation of the unit.[1]

32. As a result, even where liability for the damage may be attributed to the tenant, the Landlord lacked authority to circumvent the proper statutory process to terminate the tenancy.

SWL-15772-10 (Re), 2011 CanLII 13348 (ON LTB)

8. It is the burden of the Landlord in proving her case to establish that the painting caused undue damage, that it was wilful or that it was done negligently.

9. A landlord who permits tenants to begin painting or any renovation of a rental unit does so at their peril. Just as one would expect someone who employs a painter or a repair person to check out their qualifications, so to would a landlord be expected to evaluate what the end product would reasonably be when tenants are doing the work.

10. A reasonableness test is appropriately applied in this case. The Board must ask, was the painting done reasonably by the Tenants in these circumstances.

TET-36266-13 (Re), 2013 CanLII 51020 (ON LTB)

8. Pursuant to sections 34 and 64 of the Act, the Landlord was entitled to give the Tenant letters and Form N5s demanding that the Tenant compensate the Landlord for the cost of repairing the speaker if the Landlord believed that the Tenant was responsible for the damage. As the Landlord followed the correct legal process, its actions cannot be considered harassment or substantial interference with the Tenant’s reasonable enjoyment of the rental unit.

9. The Tenant acknowledged that the Form N5 states that she can refuse to pay the demanded amount if she disagrees with the Landlord’s claim and the Landlord would then have to file an application and the Board would then hold a hearing to consider the Landlord’s claim. At such a hearing the Tenant would have been given an opportunity to explain why she should not be held responsible for the damage to the speaker. The Tenant admitted that she did not read the Form N5 carefully or call the Board for information before making the payment to the Landlord. The Tenant put forward credible reasons why she should not be held responsible for the damage to the speaker. However, as the Tenant chose to void the Form N5 by making the demanded payment, the Board cannot at this point consider the validity of the Landlord’s claim.

10. As noted above, the actual costs incurred by the Landlord to have the speaker repaired by its contractor was $228.26. The Act does not allow the Landlord to demand in an Form N5 that the Tenant pay “administrative charges” in addition to the actual reasonable costs that were incurred to repair the damage. Therefore, the amount collected by the Landlord in excess of $228.26 is an illegal charge and must be returned to the Tenant.

11. This constitutes all of the reasons that shall be provided in this matter.

SOL-01316 (Re), 2007 CanLII 75944 (ON LTB)

7. The Landlord’s witness confirmed that the photographs submitted by the Landlord correctly showed the usual condition of the unit each time he saw it. The photographs showed lots of belongings lying around the unit on floors, counter tops, dressers and beds. In the photographs the unit appeared below the standard of ordinary cleanliness that is required of the Tenants pursuant to section 34 of the Act.

8. The Landlord submitted a letter from the pest control company which stated that they treated the unit 3 times in the past year for mice and cockroaches and on each occasion they did not receive the full cooperation of the Tenants.

9. The Landlord responded appropriately to the Tenants complaints regarding the mice and cockroaches in the unit. I accept the evidence of the Landlord that the Tenants did not fully cooperate with the pest control company by clearing away their personal belongings and insuring the company had full access to all areas of the unit. The Tenant’s evidence did not satisfy me that they informed the property manager about the bathroom mould and water leak in the basement. Accordingly, I do not find that the Tenants are entitled to the abatement of rent that they requested.

SOT-77758-16 (Re), 2017 CanLII 48957 (ON LTB)

20. Clause 8 of the lease provides that the Tenants are not to make any repairs without the permission of the Landlord in writing. The Tenants received no written permission to repair the toilet from either the previous landlord or from current Landlord.

21. I find, on a balance of probabilities that the ceiling is undue damage caused by the negligent conduct of the Tenants in conducting repairs to the rental unit contrary to the lease. As such, the Tenants bear the responsibility to repair this damage in accordance with section 34 of the Act.

Hou v. Buchanan, 2018 ONSC 2087 (CanLII)

[12] As per ss. 3(1), the RTA applies to rental units in residential complexes. In the RTA, the use of the word “tenant” is singular. The Interpretation Act, R.S.O. 1990, c. I.11 (“IA”) assists with the issue of singular versus plural. Subsection 28(j) of the IA states:

Words importing the singular number or the masculine gender only include more persons, parties or things of the same kind than one, and females as well as males and the converse.

[13] Clause 27 of the Lease contains a similar provision regarding gender and interpretation. It states as follows:

This Lease shall me read with all changes of gender or number required by the context. Any reference in this lease to the Tenant Protection Act means the Tenant Protection Act, as amended, and any legislation that replaces it.

[14] Consequently, read in context, the word “Tenant” in the Lease includes all 5 individuals: Buchanan, Brideau, Ryan, Musa and MacDonald. As a result, as per s. 34 of the RTA, and more particularly, Clauses 3 and 13(d) of the Lease, if it is determined that the “Tenant” is responsible for the cost to repair the Property, all 5 individuals listed as the “Tenant” in the Lease are responsible.

NOL-00391-09 (Re), 2009 CanLII 78440 (ON LTB)

10. Because the Tenant failed to report the leaking taps to the Landlord, I determine that the Tenant owes $2,157.78 for excessive water consumption costs. This amount is calculated by reducing the $2,441.46 total for the two excessively high bills by $283.68* (*represents the total water consumption cost ($141.84 x 2) that would likely have been incurred if the leaking taps had been repaired).

TET-62956-15 (Re), 2016 CanLII 38292 (ON LTB)

9. Third, pursuant to s. 34 of the Act a tenant is responsible for wilful or negligent damage to the rental unit or residential complex caused by the tenant or a guest of the tenant’s. This does not mean that the landlord is not responsible for fixing the disrepair; but section 34 means no monetary remedy will flow to a tenant where the disrepair is a result of the tenant’s own negligent or wilful actions.

10. Fourth, because of s. 16 of the Act a tenant is expected to cooperate reasonably with a landlord’s efforts to do repairs. If a tenant does not, then that may reduce any remedy ordered or disentitle the tenant to any remedy at all.

11. So the task of the Board on a disrepair application is to apply these principles to each of the disrepair problems alleged by the tenant.

TSL-16185-11 (Re), 2011 CanLII 71451 (ON LTB)

4. Subsection 29(2) of the Residential Tenancies Act, 2006 provides no application can be made on grounds like the ones before me “more than one year after the day the alleged conduct giving rise to the application occurred.” The Code has a similar limitation period where subsection 34(1)(a) says “if a person believes any of his or her rights under Part I have been infringed, the person may apply to the (Human Rights Tribunal) for an order….(a) within one year after the incident to which the application relates; or (b) if there was a series of incidents, within one year after the last incident in the series.” There was no allegation of a series of incidents.