DIVISIONAL COURT FILE NO.: DC-23-00000062-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE IVAN S. BLOOM
BETWEEN:
PRABHJOT MAHAL
Appellant
- and -
BELL NSEKE MEDARD
Respondent
S. Randhawa, for the Appellant
Self-Represented
HEARD: October 21, 2024
REASONS FOR JUDGMENT
I. INTRODUCTION
1The Appellant appeals the order of the Landlord and Tenant Board dated September 19, 2023 which confirmed the earlier order of the Board dated January 25, 2023.
II. STANDARD OF REVIEW
2By virtue of s. 210(1) of the Residential Tenancies Act the appeal at bar may only be on a question of law. The standards of review on an appeal are clear. They were recently summarized by the Ontario Court of Appeal in BH Frontier Solutions v. 11054660 Canada Inc. (Canadian Choice Supply), 2024 ONCA 932 at para. 17:
[17] The standard of review is not in dispute. Correctness review applies on a question of law or mixed fact and law that raises an extricable legal issue; or review on the basis of a palpable and overriding error on a question of fact or a mixed finding of fact and law that does not arise from an extricable legal error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 7, 25, 34 and 37.
III. PROCEDURAL BACKGROUND
3The Respondent, the tenant, applied to the Board for an order determining that the Appellant, the landlord, substantially interfered with the reasonable enjoyment of the rental unit described as basement unit number 2, 83 Longevity Rd., Brampton, Ontario; and determining that the landlord harassed, obstructed, coerced, threatened or interfered with him.
4The application was decided by order of the Board dated January 25, 2023.
5On February 24, 2023 the landlord requested a review of the order.
6On September 19, 2023 the Board released its order on the review.
IV. DECISIONS BELOW
A. Order of January 25, 2023
(i) Background
7The member found that the Respondent, tenant, moved into the unit on January 10, 2020 under a short handwritten lease; the rent was $1650 monthly. The Appellant, landlord, lived in the upper unit.
(ii) The Parking Issue
8The hearing member found on a balance of probabilities that the landlord substantially interfered with the tenant’s reasonable enjoyment of the unit by failing to provide a parking spot in a timely way.
9The hearing member’s decision was supported by a detailed review of the evidence.
10The member found also that, only when he was pressured by authorities, did the landlord allocate a parking spot on the driveway to the tenant He found that the parties both were uncooperative with each other in resolving the dispute.
(iii) The Mailbox Issue
11The Board member found that, despite requests by the tenant, the landlord refused to give him a key to the landlord’s community mailbox or provide a separate mailbox.
12The Board member found that s. 191 of the Residential Tenancies Act, and Rule 3 of the Board Rules imply an obligation to provide a mailbox.
13The member found that, while waiting for a mailbox to be installed, the landlord should have provided a key to the community mailbox; and that the landlord substantially interfered with the tenant’s reasonable enjoyment of the rented premises by not providing him with a mailbox or key.
(iv) The Issue of Harassment
14The Board member found on a balance of probabilities that the landlord had harassed the tenant “by behaving in a manner that he knew or ought to have known would be most unwelcome by the Tenant.” This finding was supported by a detailed examination of the evidence.
(v) Notice of Entry
15The Board member found on a balance of probabilities that the landlord substantially interfered with the tenant’s reasonable enjoyment of the rented premises by providing an improper notice of entry on August 5, 2021.
16The Board member found that the notice was delivered in order to show the unit to prospective tenants on August 6, 2021.
17Further, the member found that the notice was not supported by evidence establishing compliance with s. 26(3) of the Residential Tenancies Act which required proof of an agreement to terminate the tenancy or service of a notice of termination.
(vi) Remedies
18The Board member found that a reasonable abatement of rent, being $1884, was proportional to the nature and frequency of the incidents.
19The abatement ordered included $500 for not designating a parking spot, $934 for resisting attempts to resolve the parking dispute, $200 in respect of the mailbox-mail key matter, $500 for the harassment matter, and $500 for the illegal notice of entry.
20The Board member also ordered the landlord to pay the tenant $53.00 for the cost of filing his application.
21The full amount of $1937 was to be paid by February 15, 2023; failure to pay that sum was to result in 5% simple interest annually on the balance outstanding from February 16, 2023.
22If the landlord did not pay the full amount owing by February 15, 2023 and the parties did not terminate the tenancy before May 31, 2023, the tenant was provided by the order of the member with the option to recover the abatement by deducting $1000 from the rent for the period March 1, 2023 to March 31, 2023 and $937 from the rent for the period April 1, 2023 to April 30, 2023.
B. Order of September 19, 2023
23The Board addressed each of the errors alleged by the landlord.
(i) Alleged Insufficient or Inconsistent Reasons to Support the Determination that the Landlord Substantially Interfered with the Tenant’s Reasonable Enjoyment of the Premises by Failing to Provide an Exclusive Mailbox
24The Board found that, contrary to the submission of the landlord, the decision under review was not in error in finding that the landlord was required by law to provide the tenant with an exclusive mailbox, despite the absence of an express requirement to do so in the Residential Tenancies Act.
25The Board found that the interpretation under review considered the entire act, and how a person may give a document. It further found that that interpretation was consistent with the act, reasonable, and entitled to deference. Accordingly, this allegation of error was rejected.
(ii) Alleged Error of the Board in Finding that the Landlord Substantially Interfered with the Tenant’s Reasonable Enjoyment of the Rented Premises by Showing the Unit to a Prospective Tenant
26The Board on review rejected the submission of the landlord that the decision under review was in error in finding that the landlord had interfered with the tenant’s reasonable enjoyment of the rented premises, by showing it to a prospective tenant. The Board on review rejected the landlord’s submission that the evidence had been that the unit had been shown to a prospective buyer.
27The Board on review held that it would not interfere with the assessment of the evidence by the hearing member.
(iii) Alleged Error by the Board in Determining that the landlord failed to Allocate a Parking Spot and thereby Substantially Interfered with the Tenant’s Reasonable Enjoyment of the Rented Premises
28The Board on review determined that the hearing member had provided full reasons on the parking issue, and that the landlord had withdrawn his application on the point, leaving the hearing member open to making the determination in issue.
(iv) Alleged Error by the Board in Failing to Consider the Tenant’s Behaviour in Making a Finding of Harassment Against the Landlord
29The Board rejected the submission of the landlord that the hearing member failed to consider the tenant’s behaviour in finding harassment by the landlord. The Board found that the member had considered the tenant’s behaviour appropriately by lowering the rent abatement given as a remedy, as a consequence of the tenant’s behaviour.
(v) Conclusion
30In sum the Board found no serious error by the hearing member and confirmed the member’s order.
V. GROUNDS OF APPEAL
31The Appellant alleges that the review decision erred in law in upholding the hearing member’s decision that the landlord was obligated in law to provide the tenant with an exclusive mailbox, and that the failure to do so was to be remedied by a rent abatement of $200.
32The Appellant alleges that the review decision erred in upholding the hearing member’s finding that the landlord had substantially interfered with the tenant’s reasonable enjoyment of the rented premises by failing to allocate to him a parking spot.
33The Appellant alleges that the review decision erred by upholding the hearing member’s decision that he had harassed the tenant.
34The Appellant alleges that the review decision erred by upholding the hearing member’s decision that the landlord had substantially interfered with the tenant’s enjoyment of the premises by showing it to a prospective tenant.
VI. ARGUMENTS OF THE PARTIES
A. Arguments of the Appellant
(i) The Mailbox Issue
35The Appellant argues that the review decision erred by failing to give effect to the absence of an express requirement in the Residential Tenancies Act (RTA) obligating the landlord to provide a mailbox to the tenant.
(ii) The Notice of Entry Issue
36The Appellant argues that the review decision erred by wrongly applying s. 26(3) of the RTA regarding a notice of entry to show the premises to prospective tenants, as opposed to s. 27(2) regarding a notice of entry to show it to prospective purchasers.
(iii) Parking Issue
37The Appellant argues that the review decision erred in failing to find that the Board acted in a procedurally unfair way in assessing the evidence on the parking issue, including failing to take into consideration all of the evidence submitted by the Appellant.
(iv) The Harassment Issue
38The Appellant argues that the review decision erred in failing to find that the Board acted in a procedurally unfair way in not taking into account all of the evidence on the harassment issue.
B. Arguments of the Respondent
39The Respondent supported the review decision. He submitted that hearing member made no errors; and cited the brief hand-printed rental agreement in support of the member’s determinations on the issue of parking.
VII. ANALYSIS
A. The Harassment Issue
40The Appellant has not raised an issue of law on the harassment issue. The appeal is solely on grounds of fact. He complains about the facts as found. Accordingly, I reject this ground of appeal.
B. The Parking Issue
41For the same reasons as regards the harassment issue, I reject the Appellant’s complaint in relation to the parking issue.
C. The Notice of Entry Issue
42The Appellant has not raised an issue of law in respect of the notice of entry. The member hearing the matter simply rejected as without satisfactory proof his argument that he was attempting to show the premises to a prospective buyer, as opposed to a prospective tenant.
43That matter does not raise a ground of law. Accordingly, I reject this ground of appeal.
D. The Mailbox Issue
44The issue of the mailbox raises a question of law. Further, I see no basis in law for implying an obligation on the landlord to provide a mailbox to the tenant. I have been shown no statutory provision or case law which establishes this obligation. The review decision was in error in not accepting that the hearing member had erred in finding an obligation on the landlord to provide a mailbox.
45Accordingly, I accept this ground of appeal.
VIII. REMEDY
46Under s. 210(4)(a) and s. 210(5) of the RTA I reduce the rent abatement ordered by the hearing member by $200, the amount respecting the mailbox issue. Otherwise, the remedial aspects of the hearing member’s order remain in force.
IX. COSTS
47I shall receive written submissions on costs of no more than 3 pages excluding a bill of costs. The Appellant shall serve and file his submissions within 3 weeks of release of this decision. The Respondent shall serve and file his submissions within 3 weeks of service of the Appellant’s submissions. There shall be no reply.
BLOOM J.
Released: January 2, 2025
CITATION: Mahal v. Medard, 2025 ONSC 29
DIVISIONAL COURT FILE NO.: DC-23-00000062-0000
DATE: 2025/01/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE IVAN S. BLOOM
BETWEEN:
PRABHJOT MAHAL
Appellant
- and -
BELL NSEKE MEDARD
Respondent
REASONS FOR JUDGMENT
BLOOM J.
Released: January 2, 2025