Court File and Parties

Court File No.: 4860 999 15 105493-01 Date: February 6, 2017 Ontario Court of Justice

Re: Her Majesty the Queen v. Frank Tarsitano

Before: Justice of the Peace C. Shoniker Hearing Date: February 6, 2017 Location: 60 Queen Street West, Old City Hall, Toronto, Ontario

Charges: Two counts under the Residential Tenancies Act

Appearances:

• Mr. A. Lawlor, Ministry of Housing Prosecutor
• Frank Tarsitano, Self-represented

Reasons for Judgment

Part 1 – Introduction

This is a hearing under the Residential Tenancies Act. The Defendant is Frank Tarsitano. He is charged with two counts under the Residential Tenancies Act, sections 233(1), that he "knowingly threatened or interfered with a tenant, namely Sabrina Mager, in such a manner that the tenant was induced to vacate;" and that contrary to s. 235(1) of the Residential Tenancies Act, the Defendant, Frank Tarsitano, is charged that "between June the 20th, 2015, and September, 2015, both dates inclusive, at the residential complex located at 512 Clinton Street in the City of Toronto, did commit the offence of knowingly interfere with tenant Sabrina Mager's reasonable enjoyment of the first floor unit in the said residential complex."

Frank Tarsitano is presently the only defendant who is before the Court on this matter. His father, Maurizio Tarsitano, also known as Mario Tarsitano, was also originally named on the Information in regards to the same charges concerning the tenancy of Sabrina Mager. However, the charges against Maurizio Tarsitano were withdrawn by the prosecution on an earlier court date of June 17th, 2016, before a different Justice of the Peace. The Ministry of Municipal Affairs and Housing is represented by Counsel, Mr. Lawlor. The Defendant, Frank Tarsitano, is self-represented.

The Ministry has called one witness for the prosecution of this matter, and that person is Sabrina Mager. Prosecution has also relied on documentary evidence, some of which was provided to the Ministry in part by Mager, and some exhibits were referred to by Tarsitano in his defence.

Exhibits

There are 14 or 15 exhibits which have been filed in these proceedings. In brief, they are described as follows:

Exhibit 1: The lease agreement between Frank and Maurizio Tarsitano and tenant Mager

Exhibit 2: Photocopies of text messages exchanged between Mager and Frank Tarsitano in March and then later in June and July, 2015 - parts relating to ice blockage, patio drainage blockage, roof drain and the replacement by Frank Tarsitano of a drain, and also mentioning water leakage and a towel on the floor of her bedroom

Exhibit 3: Photos of water staining and damage

Exhibit 4: Photographs of bugs taken on one date in September, 2015

Exhibit 5: A letter dated July 15th, 2015, from paralegal Carolyn Kerr to Tarsitano

Exhibit 6: The N12 Form, notice of end of tenancy, as signed by Frank Tarsitano and dated by him July the 1st, 2015

Exhibit 8: A demand letter or letter that was referred to as a demand letter, entitled 'Final Notice End of Tenancy', signed by Frank Tarsitano on behalf of himself and his landlord father

Exhibit 9: Text messages which were one-way messages from Mager to Tarsitano on August 29th, 2015, and separately on September 1st, 3rd and 5th, 2015, regarding laundry and power interruption by flicking the power switch

Exhibit 10: A rent receipt dated July 1st, 2015, with a handwritten note, "No further rent will be accepted as of July the 1st, 2015, with a notice of eviction September the 1st, 2015"

Exhibit 7: A photograph–photocopy of Exhibit 10

Exhibit 11: The original copy of the N12, 'Notice to End Tenancy'

Exhibit 12: The rent cheque dated August 1st, 2015, with "return stop payment" note attached

Exhibit 13: A letter from paralegal Carolyn Kerr, dated September 16th, 2014

Exhibit 14: Photos of filled garbage bags and large, paper leaf recycling bags left by Mager in the unit on or about September 15th

Exhibit 15: A Landlord Tenant Board decision under sections 29 and 30, decision issued December 8th, 2015, by the Landlord Tenant Board on application by Mager against Frank Tarsitano, this decision made ex parte

Part 2 - Overview of the Facts

Mager entered into a tenancy agreement in respect to a rental unit referred to in Exhibit 1 which was part of the first floor of a rental housing or house complex which was an extended home located at the address of 512 Clinton Street in Toronto. Mager entered a written agreement with Tarsitano - Tarsitano and his father Maurizio as the landlord owner and Frank Tarsitano as the property manager. Mager's unit comprised of one bedroom with kitchen and large living and dining room area on the ground level and a front walk-out door and enclosed yard. The house itself was described by Mager as being located in the Annex area of Toronto, what seemed to be described by her as a large subdivided home in an area of Toronto that was known for by her for its younger residents, including university students as mentioned by her.

Mager began her tenancy as per the agreement for about July the 1st, 2014. This agreement required her to pay $1,000 per month rent, all included. By December, 2014, less than three months after her tenancy began, she had already gone to a paralegal to send a letter to the Tarsitanos in regards to what, in her view, were several issues with her unit. Letter marked as Exhibit 13 is a letter of this type of complaint by her to the Tarsitanos. On agreement by both the Ministry and the Defendant, the letter, Exhibit 13, was not admitted for the truth of its contents into this proceeding but in regards to the letter itself being sent by her.

In Mager's own testimony, she said that she very much enjoyed living at this unit. Her words, "I really loved living there". She told the Court that she was already familiar and comfortable in the Annex area of Toronto where this unit was located and that was part of the appeal of this rental location. Nonetheless, in her testimony she spoke about several issues with the rental unit of concern to her.

Water Damage and Mould Issues

More specifically, she spoke of what she described as a "mould problem" in her kitchen. She produced Exhibit 3, which is three photographs that were taken by her on her iPhone. But for indicating that all three photographs were taken by her on one day in August, 2015, Ms. Mager could not be specific as to the exact date when these photographs of the kitchen ceiling were taken. These photographs were taken by her after she said she received some type of notice of termination from the Tarsitanos of her tenancy, sometime in or about the month of July, 2015. In her testimony, she indicated that she "tried to paint over the stains" that could be seen in these photographs, but the stains reappeared on her walls.

In his testimony, Tarsitano, indicated that Mager's photos depicted water staining as opposed to mold, and that the water staining was caused by an overflow of the water into the drain spout on the flat rooftop patio above her unit. He indicated that this was due to the drain on the roof patio getting plugged or over-filled. Tarsitano testified that efforts were made to try and remedy the problem by his own wet-clay work around the downpipe outside and above her unit.

Exhibit 2 is a copy of text messages exchanged between Tarsitano and Mager that showed that on or about March the 17th, both in agreement that this was in 2015, Tarsitano wrote to Mager, "Hi Sabrina. It was still leaking so I had to dig out roof drain and replace it. Once all is dry, I will repair ceiling. I must wait to make sure the leak is 100 per cent sealed. Bear with me for a couple of days. Thanks." Also, he sent her a photograph of the flat patio rooftop and drainpipe with what appears to be wet clay surrounding it, indicating his personal repair efforts. This was Exhibit 2. This rooftop patio was above Mager's unit and, as the evidence suggested, above the ceiling of her kitchen where there was the interior water trouble.

Pest Infestation Issues

Mager also spoke about the problems with what she described as "a moth infestation" and a "bug infestation," about which she provided three photos, collectively marked as Exhibit 4. These photos were taken after Ms. Mager had received notice of termination of her tenancy and sometime in July, 2015. The Court notes that in the first photo, taken on a single date in September as indicated by her - without her being able to indicate the exact date in September - there were approximately 20 moths in what was described as the corner area of her kitchen, over top of the fridge. In the photographs, lighting seems to be 'on' in the kitchen area; and, in response to the questions asked, she was not able to say if the photos were taken during the day or at night.

The other photo taken on the same date in September, again without specificity as to which date, shows moths caught on a sticky catch surface. This is still collectively part of Exhibit 4.

The third photograph, Exhibit 4, shows a photo of one cockroach. There was no clear indication by Ms. Mager's testimony or by the pictures whether the cockroach or the moths were an issue for a day or a month. She did not provide evidence about a particular length of time for either issue.

In his testimony, Tarsitano pointed to the fact that this complaint, and the photos about the same, related to a date in September, 2015 that was after the time of his giving notice to her of the intended termination of her tenancy for his personal occupation. In his defence, Tarsitano indicated that he and his father made efforts to keep the premises of the house and complex, including at Mager's unit, pest-free by spraying for bugs. Mager acknowledged that bug spraying had been done in the rental unit sometime earlier.

Power and Internet Disruptions

The third and final issue about which Mager testified was about a disruption to her power and internet. Mager indicated that sometimes Frank would be out and she would not be able to have the power-switch corrected; and that she could not ask his dad or parents for help as they did not speak English, or that they would speak meanly to her. On the other hand, Tarsitano indicated that his father was of senior age and also lived in the same house in the upstairs unit, and she could have asked him for assistance if Frank had temporarily left the house as he would have been able to turn the power switch on the breaker if necessary.

Again, while speaking about the fact of a power interruption or internet interruption, there was no clear indication by Mager that this was an ongoing issue, particularly between the months as stated in the Information, June through to and including September, and/or for what particular length of time. Messages were one-way in September from Mager to Tarsitano.

Termination of Tenancy

Going on with the evidence as heard and factually related to this situation, Tarsitano testified that in or about July, 2015, he decided that he wished to use the rental unit occupied by Mager for his own use, his own personal use. Tarsitano gave a notice of termination sometime beginning of July, 2015, by writing on a cheque receipt that no further rental payment would be accepted from her. See Exhibit 10. When Mager stayed in the unit into the month of September, Tarsitano ultimately did however accept payment for August, 2015, by cashing the cheque left by Mager in the shared mailbox. This was their normal method of exchanging cheques, receipts and documentation. He did not cash the September cheque, which Mager indicated she also left in the mailbox despite her having received the notice of termination from him. Ultimately, she did place a stop payment on her September rent cheque after, she said, the cheque "had sat for a while in the mailbox". Referring to Exhibit 12.

In addition to the hand-written note regarding eviction on the back of the rent receipt of July, Tarsitano also left a letter referred to as a "demand letter," demanding that she 'remove her goods prior to the date of September the 15th, leave the premises, locks would be changed and that she will be considered trespassing if on the premises after that'. This letter, Exhibit 8, was a letter that was authored by Tarsitano and his father and dated by them. Tarsitano said he left it in the mailbox for pick-up by her beginning July, but Mager presented it as date-stamped by her for receipt July 23rd, when she offered this letter to the Court as an exhibit. The Ministry argued that it is this letter that was 'threatening in nature'. A more formal N12 Notice of Termination of the Rental Agreement was given by the Tarsitanos to Mager sometime thereafter. Exhibit 6 is the copy, and he said that Exhibit 10 is the original.

On Mager's evidence, she "finally decided that she would move out but took some time to decide", she had said in her testimony. She also indicated that she "did not tell the Tarsitanos when that would be". Although she said that she hired movers for September the 15th, which was the final date suggested by the Tarsitanos on one of the earlier notices of termination, she said that she had removed "only part rather than all of her items from the unit on September the 15th". She left clothes and other items in large leaf collection bags and garbage bags, which, she said, she intended to pick up later; although none of this was communicated to the Tarsitanos by letter, note or otherwise.

The Tarsitanos subsequently threw out the bags. Tarsitano said that he and his parents thought that these bags were garbage, and he pointed to a hand-written note saying "garbage", in the photograph. Ms. Mager admitted writing the note saying "garbage" and placing it somewhere in among the bags, but said that it was meant for one bag and not for all of the bags. Exhibit 4 shows her note stating 'garbage' on a bag in the clumping of bags in the photograph.

Landlord and Tenant Board Hearing

On December the 14th, 2015, approximately three months after moving from the unit, Mager took matters of complaint to the Landlord and Tenant Board, and a hearing was conducted without the Tarsitanos present. In the Hearing of this Court, Frank Tarsitano indicated that he was attending to his father at the time of that hearing due to his father's cancer treatments at the Princess Margaret Hospital. Mager attended the Landlord and Tenant Board Hearing and presented information about a number of issues in respect to her tenancy and its termination. The Landlord Tenant Board considered a much wider number of issues and complaints than this Court has heard about, and the date range of concern in that Hearing was much broader than that specified in the Information before this Court, dates June to September, 2015 inclusive.

Without the Tarsitanos in attendance, the Landlord Tenant Board awarded Mager a retroactive abatement of her rent as restitution or compensation in respect to a number of issues in the amount of approximately $4,000. Although not present, the Tarsitanos have not moved to set aside or appeal that Order, so that Order stands as a valid and potentially enforceable judgment through the civil court system.

On the first date of this hearing, the Court was given to understand that Mr. Tarsitano and his parents have not made payment thus far of the compensation ordered to Mager, pursuant to that Landlord Tenant Board decision. This Court is not a civil court and therefore has no power to redress this matter.

Part 3 - Differences between Hearings

In speaking about the earlier hearing before the Landlord Tenant Board, perhaps now is the time to recognize that this Court takes no issue with the findings and Order of that Board. It is important to note the differences between this hearing and the hearing that was conducted before that Board, and the different legal tests and legal considerations applicable in either case.

1. The evidence and issues which were considered by the Landlord Tenant Board were broader and more numerous, although with some overlap. By comparison, this Court was focused on narrower issues and for a more limited period of time of Mager's residential tenancy.

2. In the Landlord Tenant hearing, the Board made their decision on a balance of probabilities. By comparison, this Court the test applied is whether the Ministry had proved their case beyond a reasonable doubt. Unlike the hearing before the Landlord Tenant Board, in our case, the Defense may present a defense of due diligence towards the infraction, and thereby seek to leave doubt in the mind of the Court on a balance of probabilities. Accordingly, the onus on the Crown or Ministry's representative is much greater since this Court must decide not just on a balance of probabilities but on proof of issues beyond a reasonable doubt. This means that the Crown's case must meet a much higher threshold.

3. In the hearing before the Landlord Tenant Board, the Board did not hear testimony from Tarsitanos but made their order in the absence of him and his parents. By comparison, in this case this Court has had the benefit of hearing from Mager as well as Tarsitano about the particular issues before it.

4. Tarsitano's testimony in this Court is particularly relevant for the following reason. In the Landlord Tenant Board hearing, the Board applied a more objective test, in light of the fact it considered their evidence on a balance of probabilities. By comparison, this Court must consider a mens rea or subjective element to the offences before it, in that both offences allege that the Defendant "knowingly" threatened and/or induced and "knowingly interfered". Therefore, in contrast to the Landlord Tenant Board hearing, here the Crown must prove all the elements of the offence beyond a reasonable doubt objectively, but also with an element of subjective intent; and with a defence of due diligence or exercise of reasonable care open to the Defendant.

5. The hearing before the Landlord Tenant Board is a civil proceeding, meaning person versus person or entity versus entity. By comparison, this Court is dealing with a trial in a Provincial Offences Court, a quasi-criminal court, where the state or Ministry moves against the individual or corporate entity.

6. Finally, between the two types of hearings, there are different forms of redress or outcome. In a Landlord Tenant Board hearing, the Board had the authority to make an order of compensation or restitution to the complainant, Mager. By comparison, this Court has no authority to make such an order of compensation to a complainant under this legislation. Instead, any monies, if ordered, are to be paid by the Defendant and would be payable to the government or Ministry.

As earlier stated, this Court has no authority to enforce the earlier order of the Landlord Tenant Board in respect to compensation or reimbursement.

Part 4 - Legal Issues and Analysis

The legal issues being dealt with in this case pertain to whether "Frank Tarsitano knowingly threatened or interfered with a tenant in such a manner that the tenant was induced to vacate". Those are the words as stated and used on the Information. The other legal issue, whether "Frank Tarsitano knowingly interfered with the reasonable enjoyment of the premises", again as indicated by the wording of the Information.

First Charge

In considering the first issue, the Court must decide whether each of the elements has been proved beyond a reasonable doubt. There are three parts to the question and the issues to be determined pursuant to clause 233(i) of the Residential Tenancies Act. Whether there was a "threat"; whether he made that threat "knowingly"; and whether the threat or action "induced the tenant to terminate her tenancy". In other words, it must be shown beyond a reasonable doubt that she felt threatened, that beyond a reasonable doubt that that threat induced her to leave, and that beyond a reasonable doubt Tarsitano knowingly made that threat that induced her to leave.

So to address the question as to whether or not there was a "threat", it is suggested by Counsel for the Ministry that the letter to the tenant to leave by September 15th, Exhibit 8, was threatening to Mager and that she felt threatened by it. In assessing this, the Court considered her words and testimony on the witness stand and also her words, actions and responses to the letter at the time of its receipt and thereafter during the remainder of her tenancy.

In looking at the evidence presented, the Court noted that she did not leave out of fear when she received that letter. In fact, she said in her testimony that she took some time, that she took "some time to decide" what she was going to do about leaving or not leaving the unit. And further in her testimony that, within that period of indecision, she made contact with the public health office, her paralegal, the tenancy enforcement officer, took photos on the date in September and continued to provide Tarsitanos with rent payment until she stopped the payment for September's rent, which was not accepted and not deposited by them. All of this occurred a number of weeks after the subject "threatening letter."

What does seem clear by her testimony is that at some point she decided for herself, but then says later, after her move, that she regretted her decision to have left and not to have fought to have kept the rental. She testified that after the fact and in hindsight she did not realize that it would be so difficult later to find a place in the same area, and stated that she ultimately moved in with her boyfriend. She had said that she loved living in that house. Despite the initial subject letter, allegedly a "threat", Mager continued to provide rent payments, placing rent cheques into the mailbox for pick-up for August as well as September, 2015.

The Court also next asked the question whether Tarsitano "knowingly" made a threat to Mager. Tarsitano testified that his intention was not to have made a threat by his letter for her to leave; but recognized in hindsight that this first letter was in bad form. He came to understand that he could not legally evict a person in the fashion as described in that note, and so he followed later with a more formal demand notice. Demand letters by their very nature, whether for outstanding payment or a 'threat' to take civil action or proceed to court process, or hold somebody liable in some fashion, are by their very nature unpleasant and, to some degree, menacing, - but not necessarily threatening in the legal sense of the word "threat". Court process, by its very nature, is adversarial but this is not the same in law as "threatening".

This Court is satisfied that the note he gave was in the nature of a demand and not a threat intended by him. Having considered all of the evidence, this Court is not satisfied beyond a reasonable doubt that he knowingly made a threat. Also, this Court is not satisfied beyond a reasonable doubt that such communication from Tarsitano to Mager induced her to leave. In considering the testimony of both Tarsitano and Mager and submissions of Counsel, this Court finds that the Crown has failed to establish beyond a reasonable doubt that Tarsitano threatened her and induced Mager to leave by such alleged threat and therefore the first charge against Tarsitano is dismissed.

Second Charge

The second charge pertains to whether Tarsitano knowingly interfered with the reasonable enjoyment of the rental property within the specified period of time of her tenancy. Again, by the use of the word "knowingly", within this other section of the Residential Tenancies Act, it is recognized that this again is an offence for which there is proof required of both an objective as well as subjective nature. The Crown must prove all the elements, both subjective and objective, beyond a reasonable doubt. Even on the essential elements being met by the Crown, the Defense still can present evidence of a defence of due diligence or reasonable care having been taken, despite the fact that the interference may have factually existed. The Court must also consider whether the mens rea or subjective intent of the Defendant was proved beyond a reasonable doubt.

This second allegation can be broken down into its parts or elements, each of which must be proved beyond a reasonable doubt. One, the "interference". Two, the defendant having "knowingly caused" this. Three, the interference with what would constitute "reasonable enjoyment."

First, the Court look at the issue of what constitutes interference. In the view of this Court, "interference" must be something that is more than an annoyance or a nuisance. The case law, including the case law as presented by Ministry Counsel today, often uses the phrase "substantially interferes," or in another of the cases as presented by Ministry Counsel, "seriously interferes."

Next, it must be established beyond a reasonable doubt that the interference actually caused interruption to the tenant's reasonable enjoyment.

Recess and Resumption

Continuing, in the view of the Court, "interference" must be something that is more than an annoyance or a nuisance. Case law often uses phrases "substantially interferes" or "seriously interferes." Next, it must be established beyond a reasonable doubt that the interference actually caused interruption to Ms. Mager's reasonable enjoyment and her ability to carry on in the presence of such interference. Drawing something of an analogy to the criminal law might be that a bystander yells at an officer while that officer is arresting somebody on the street. Certainly the bystander's yelling is an annoyance, nuisance or disturbance, but not necessarily an actual "interference" with the officer's ability to make an arrest.

An analogy perhaps in the municipal law situation where the City is building streetcar tracks on a street next to several small family-owned businesses, removing pedestrian and vehicle accessibility to those businesses. Again, the new tracks with their noise and sound and space-taking are an annoyance, nuisance and/or disturbance to the area's business residents, but arguably the owners may still be able to go about doing business. In such cases, there is a weighing of the degree of inconvenience alongside the necessity of the work to be done and the longer-term benefit to all, including those business owners. The disturbance and 'interruption' and reduced income to the business owners might therefore not be actionable by them.

This Court has considered 3 main factors when considering whether something is an 'interference' with reasonable use and enjoyment. These considerations include but are not limited to:

1. The duration of the nuisance or disturbance;

2. The intensity of the disturbance of whatever sort; and

3. The necessity as to whether that person had to have suffered that disturbance.

This is not meant to be an exhaustive list of factors and some or all may exist to differing degrees in any one situation. But if the Court concludes, legally speaking and as earlier indicated, that there is an "interference", then the Court must still decide whether that interfered with the reasonable enjoyment and use of the premises. The Court must hear about what the person would have done or enjoyed otherwise outside the presence of this interference.

Further, the Court recognizes that "reasonable enjoyment" does not mean having problem-free enjoyment. It does not necessarily mean perfectly unconditional enjoyment of a thing, but rather "reasonable" enjoyment, taking into account what could and should be expected in all of the circumstances of each particular case.

Analysis of Pest Infestation

Mager, in her testimony, brought up the issue of moths and bugs in her unit. Does her evidence about the moths establish beyond a reasonable doubt that they created an interference with the property and her reasonable enjoyment and use of the premises between the stated dates of June, 2015, to September, 2015, inclusive, the time period as outlined by the wording of the Information?

The Court's answer is no. The evidence and testimony of Mager was insufficient to establish this beyond a reasonable doubt. The Court was presented with a couple of photographs of moths in the ceiling area and one picture of one cockroach in her rental unit, taken on just one day in September, 2015, by Mager. Mager was unsure of which date in September she had taken the photo. There was a lack of clear evidence from Mager or otherwise, indicating for how long, referring to duration, or to what extent, referring to intensity, this issue with the moths had continued.

Also, besides her indication that she put out sticky paper near the fridge to catch the moths, there was no other information about if and how her ability to carry out her other day to day activities within and outside her apartment rental was impacted, if at all, by their presence. As indicated earlier, the photos were taken by her on a date in September, after she had already received the eviction notice from Frank Tarsitano and his father, Maurizio Tarsitano, the owner.

Also, even if it had been established beyond a reasonable doubt that there was a moth problem, to legally constitute an "interference" with her use and enjoyment of the premises, the defence of due diligence was still available to Tarsitano.

In his own defence, Tarsitano testified that he and his father addressed the issues of bugs in her unit, by having sprayed when she first arrived; and sprayed regularly for pest control in her unit and the other units of the home. When Tarsitano cross-examined Mager, she agreed that bug spraying had taken place. Therefore, even if I found that there in fact was an interference to Mager because of moths in her kitchen, the Court has found that Tarsitano raised the defence of due diligence on a balance of probability. He and his father had taken action to have deal with this issue by manner of pest control spray.

Further, the Information or charge form against Tarsitano is very specific and relates to the time period of June to September, 2015. The Court is not satisfied beyond a reasonable doubt of any information in regards to the moths and cockroaches causing an interference specifically between these dates; nor that the interference, in law, "interrupted" Mager's reasonable enjoyment of the premises.

Analysis of Water Damage

Next, Mager also described what she called a mould or water-staining problem in her unit, especially in the kitchen ceiling area. The Court heard from Mager about her having painted over the wall discoloration and darkening, but without long-term success. This suggests that she treated the issue as a water-stain issue rather than a mould issue. Rather than having cleaned it or bleached it or applied some kind of mould-cleaning product, she said she tried to paint over it. As Frank Tarsitano himself indicated, the painting over did not work for the longer term. Tarsitano said that when it was raining hard and the outside drain pipe got plugged, it caused the leaking all over again.

Mager again presented photographs. Some of these were the walls in her kitchen, one appearing to have water stains and some discoloration to the ceiling, upper corner and upper area of the kitchen walls. The other photographs which she presented showed water staining and darker discoloration to another area of her kitchen walls, seemingly coming from the roof ceiling and over top of the window made of privacy glass blocks. The same photograph showed what looked to be wallpaper apparently pulling away and cracking away from the water-damaged wall.

For purposes of this Court's determination if there was an "interference with the reasonable enjoyment of the premises", it does not matter so specifically if it was a water leak problem or a mould problem. In this particular circumstance, the photographs do show a definite problem in need of repair, where walls are discolored and the wallpaper is hanging away from the interior walls due to moisture.

In the Court's assessment as to whether this water damage or mould issue constitute an 'interference' to Mager, this Court considered various factors as to what constitutes an "interference" in law, including but not limited to the problem's duration, intensity and/or necessity. After making these considerations, the Court thereafter considered 'due diligence' and if it was exercised by Tarsitano in dealing with this issue.

Looking at the evidence presented by both Crown and Defence, the problem was an ongoing issue off and on throughout the course of her tenancy from September, 2014, to September, 2015. Mager had complained, either directly or indirectly, and through a paralegal letter back in December, within the few months of when she had first moved in. She also testified that she had complained by text message to Tarsitano about the problem in March, 2015, and then again in June and July, 2015. She brought copies of the further series of text messages exchanged between herself and Tarsitano in March. Therefore, the issue of damage, potentially caused by water, was raised again and again during the course of her tenancy, including in the relevant period of time, from June to September, 2015. In the course of her messages to Tarsitano, Mager referred to the problem as one of "water damage" and did not use the term 'mould' within her messages.

Even Tarsitano himself said that every time that there was a heavy rain, it would happen again. The Court is therefore satisfied that there was evidence about the duration, the ongoing nature of this problem, as well as the intensity of this problem being serious by its repetition with the rainfall and precipitation over the course of months. Beyond the aesthetically displeasing appearance of this problem on her interior walls, dampness is not a good thing for the walls and can lead to other conditions such as mould and mildew. Even if it had not yet got to the point of mould, it was nonetheless a serious problem due to appearance and, potentially, structural integrity. Mager testified that the condition of the water leakage made it difficult to live and entertain other persons in her unit; at one point messaging about the water damage and leakage expanding into her bedroom area, requiring her to put towels on the floor. The Court accepted from her that this water problem did interfere with her reasonable enjoyment and use of her premises, particularly when the water-damaged area was immediately apparent to her and to those she invited as guests into her home.

The question then remains, with such a problem found to be existing, whether Tarsitano exercised due care and diligence in dealing with it, and this having been shown or indicated by him at least on the level of a balance of possibilities. Tarsitano testified that he responded to her messages in March by working on the outside drain pipe and by putting new clay around the pipe. In the course of the text messages, he sent a photograph of the work he had done outside and above her unit, Exhibit 2. The photographs showed what appeared to be a flat roof patio surface somewhere above her kitchen area. This surface, this exterior surface, had a ceramic tile design. The drain pipe seen in the photograph funnels directly into the building structure rather than away and off the ceiling and away and off the building. Tarsitano said that he tried to fix it himself by re-claying around the pipe, as shown to her by the pictures. He also admitted that his do-it-yourself repair had not solved the problem later on. Mager herself provided the Court with messages with the photo of Tarsitano's efforts.

But Tarsitano knew that the problem continued to exist as she continued her tenancy. He knew that the water continued to leak into the home and her unit when there was a heavy rain. He said, when there was an overflow of water, the drain might become clogged with leaves and the buildup would get clogged and the build-up would cause a leak. Tarsitano said nothing about himself being a plumber nor about calling a licensed plumber. He said nothing in his testimony about any further work done to deal with the rooftop drain problem after the efforts that he had made in March, 2015.

By July, 2015, when Mager had sent the text messages to Tarsitano about the water leaking again, it was clear from Mager that at that point the two were not easily and effectively communicating with one another. He testified that because of her earlier communication through a paralegal, he did not wish to respond to her at some point unless it was through a lawyer, but this did not happen.

I thought it interesting, one of the cases as presented by Ministry Counsel to me in his Factum, was the case, File number TET-00735-09 - names of the parties were not published. It was a case that took place before the Ontario Landlord and Tenant Board, decided November 16th, 2009. This Court likens our present situation with the description of the situation as described in that case when, at page 18 and 19, the Board stated at the beginning of paragraph 18, "I find it was up to the landlord, despite the tenant's attitude, to ensure that the unit was treated after they were advised that the problem persisted."

Then jumping down a wee bit to paragraph 19, "The fact that the tenants might have demonstrated frustration in their communication with the landlord does not in my mind warranted the landlord's behaviour of ignoring the fact that..." This other case was about a bedbug infestation, and the Landlord and Tenant Board said that it does not warrant "the landlord's behaviour of ignoring the fact that there was a thriving bedbug infestation in the tenant's unit. Nor did it prevent the landlord from taking steps to deal with the problem in order to meet their maintenance responsibilities and essentially protect their interest."

Those parts of that decision, particularly in regards to the difficult communication between tenant and landlord, is similar to the case at hand.

Going back then to our situation … When Tarsitano testified about the state of the water damage repair in about July of 2015, Tarsitano said that he did not bother to fix it then because he knew "that she would be leaving", and so he "decided he would fix it after she left". He told the Court that he decided that he would not do anything further – do any further repair to it until after Mager left, but also, that he did not communicate this to Mager.

In this Court's view, that kind of approach to the repair of the roof drain and inner walls of the tenant's apartment was not appropriate and reasonable in the circumstances. It was not for Tarsitano to just simply wait for her to leave and then fix it when he took over her unit, he said, for personal occupation. 'Do-it-yourself' and 'wait-and-see' were not approaches in this situation that would constitute due diligent efforts by him. There was no real need for Tarsitano to wait, for his own convenience but at the inconvenience to Mager in having to live with that condition in her home for weeks longer than was necessary in the months of July through September. I appreciate that he tried to address the issue in some manner back in March, but acknowledged by his testimony that his do-it-yourself repair was not working and knew that there was a repeat of the leakage and water-staining problem with the subsequent heavy rainfalls.

In summary, although the factors of duration, intensity and necessity considered by this Court are not additive nor exhaustive of the kinds of matters a Court might take into account in deciding something constitutes an "interference", this Court has found that with those kinds of considerations, the Ministry Crown has established that there was an interference. The interference did in fact interrupt the reasonable enjoyment of the premises, and Tarsitano did knowingly interfere by his mode of action and/or inaction, without a reasonable exercise of due diligence and care in this present situation. Therefore, the Court finds Tarsitano guilty of the second count on this Information under the Residential Tenancies Act.

Part 5 – Conclusion

In conclusion then, this Court has dismissed count one on the information and made a finding of guilt on count two of the Information.

Released: February 6, 2017

Justice of the Peace C. Shoniker

Sentencing proceedings were heard and recorded but not transcribed for the purposes of this transcript.