CITATION: Swan v. Liang, 2019 ONSC 1573 DIVISIONAL COURT FILE NO.: DC-18-2371 LANDLORD AND TENANT BOARD FILE NO.: EAT-64913-17 DATE: 20190318
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Mulligan and Raikes JJ.
BETWEEN:
Robert Swan
Kelli-Anne Day and Eytan Rip, for the Appellant
Appellant
– and –
David Liang
Respondent, Self-Represented
Respondent
HEARD at Ottawa: February 21, 2019
THE COURT:
OVERVIEW
[1] The appellant, Robert Swan (the tenant), appeals an order of the Landlord and Tenant Board (the Board) dated December 21, 2017. The tenant brought two applications: a T2 application alleging that the landlord substantially interfered with the reasonable enjoyment of the rental unit and a T6 application alleging that the landlord failed to meet his maintenance obligations under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the Act). After a hearing, the Tribunal ruled that his application against the landlord, David Liang (the landlord), was dismissed.
[2] For the reasons that follow, we would allow the appeal, set aside the Board’s decision and order compensation to the tenant, as the Board made a number of errors of law.
THE FACTS
[3] The basic facts are not in dispute. The landlord owns a residential property in Ottawa. The tenant sought to relocate to Ottawa with his family from Thunder Bay. The parties entered into a residential tenancy lease agreement on April 4, 2017, when the tenant visited the property. The tenant’s spouse and young children were not with him at that time. The landlord was conducting extensive repairs resulting from damage caused by the previous tenants.
[4] It was clear that the work would take some time. There was a dispute about whether it would take a few weeks or a couple of weeks, but in any event, the landlord assured the tenant the property would be ready on April 16. The tenant paid a deposit of $2,175 for the part-month of April and a last month’s rent deposit. The rent for the unit was $1,450 a month.
[5] On April 14, the parties had a brief telephone conversation. According to the tenant, the landlord assured him the property would be ready by April 16. The tenant did not have an opportunity to review the premises on that date.
[6] The tenant arrived with his wife and children late in the evening on April 17. They stayed one night but decided the next day to leave the premises based on its condition. The photographic evidence of the deficiencies on April 17 was overwhelming. The property was nowhere near ready for occupation and posed significant health and safety risks to the tenant, his wife and their two very young children. By way of example only, there were open cold air ventilation ducts in the floor without covers that a child could fall into. A closet door fell on Mrs. Swan, who was then holding an infant in her arms. The lock on the front door had not been changed since the previous tenants had left, and the landlord did not know to change its code. As well, there was a broken window in one room and exposed electrical outlets.
[7] The tenant and his family spent a night at the premises, then went to a hotel for a night, and then found alternate accommodation. They incurred certain expenses in so doing.
[8] The parties agreed to terminate the tenancy on April 18, but a dispute arose about the return of the monies paid. The tenant sought the return of all the funds, less $100 for the use of the garage for storage, but the landlord said he would only return the last month’s rent of $1,450.
The Proceeding Before the BOard
[9] The tenant claimed that the landlord substantially interfered with the reasonable enjoyment of the rental unit contrary to s. 22 of the Act. He also claimed that the landlord had violated s. 20(1), the landlord’s maintenance obligation. Section 20 states:
20(1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation, and for complying with health, safety, housing and maintenance standards.
20(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or contravention of a standard before entering into the tenancy agreement.
[10] The position of the tenant was set out in the Tribunal’s decision at para. 5:
They (the tenants) concluded that the home was not safe to live in for their family, especially for their children. They found rusty nails sticking out all over the unit, multiple broken windows, unsecured closet doors and missing door latches. They also found significant water damage in the bathroom from a leaking roof, missing floor vents with garbage still in heating ducts, loose carpet on the basement stairs, hot water running in the basement sink that was impossible to shut off, a large hole in the back deck, garbage all over the property and a host of other deficiencies.
[11] The Board also noted at para. 7, with respect to the condition of the premises on April 4:
(The landlord) acknowledged that there were extensive repairs that were required, including drywalling, trim works and replacing locks.
[12] The Board obviously accepted this evidence, finding at para. 10 that “…the evidence establishes that the rental unit was not in a good state of repair and fit for habitation when the Tenant and his family moved in on April 17th”. However, the Board went on to say “the Tenant did not give the Landlord a reasonable opportunity to correct the situation.” The Board held that the tenant did not have a right to terminate the tenancy, and dismissed the application. There was no discussion in the reasons about the tenant’s T2 application, nor any remedy because the premises were not fit for habitation.
THE ISSUES ON APPEAL
[13] An appeal lies to the Divisional Court from a decision of the Board only on a question of law (see s. 210(1) of the Act).
[14] The tenant argues that the Board erred in law by improperly considering his knowledge of the state of the premises before taking possession, misapprehending his evidence on the design of the rental unit, and failing to consider the evidence of the severity of the maintenance and repair issues. He also takes issue with the Board’s consideration of irrelevant evidence as set out in the decision at para. 13:
The tenant failed to fully consider the issue of whether the design of the home raised any safety concerns for his two young children. The tenant’s wife, herself, only became aware of that issue when she first saw the rental unit on April 17. The choice of this particular home for a family with small children may have been ill-advised and it would have been prudent on the tenant’s part to have consulted his wife before entering into a lease agreement.
[15] The landlord’s position is that the decision of the Board ought not to be disturbed. The tenant knew, or ought to have known, the rental unit would not be fit to inhabit within the two weeks established by the parties in their agreement. Further, the landlord said he phoned the tenant on April 14, indicating that more time was required. The landlord acknowledged that he had not changed the security lock on the door by the time the tenants had arrived, but stated that the tenants were delighted with the work he had done up to that point. He gave evidence that he had a phone call with the tenant on April 14, indicating that there was work to be done, but acknowledged that the tenant had not seen the unit that day and had no idea of the extent of work still required to bring the home into a good state of repair and fit for habitation.
analysis
[16] The standard of review is reasonableness when the Board is interpreting its home statute. However, a misapprehension of the evidence or a failure to consider important evidence can constitute an error of law. As Molloy J. stated in the Divisional Court decision Shooters Sports Bar Inc. v. The Registrar of Alcohol and Gaming Commission, 2008 25052, at para. 38:
There is no appeal from the Board’s decision on questions of fact. However, where a Tribunal completely misapprehends the evidence or completely fails to take relevant and important evidence into account, this constitutes an error of law. [Citations omitted.]
[17] The Board made a number of errors of law. First, in its disposal of the application, the Board improperly fixated on the notion that the tenant knew of the deficiencies from his visit on April 4 and failed to consult his wife before entering into the lease. The Board improperly considered the tenant’s knowledge of the state of the unit prior to taking possession. Subsections 20(1) and (2) of the Residential Tenancies Act clearly indicate that the landlord is responsible to ensure that a residence is fit for habitation and in good state of repair from the outset of the tenancy. Subsection 20(2) makes it clear that the landlord is not relieved of this obligation, even if the tenant knows that a state of non-repair exists when the lease is first entered into.
[18] Second, the Board erred in its treatment of the evidence respecting the tenant’s reason for refusing to stay in the premises. The Board appears to have accepted a self-serving email of the landlord suggesting that the tenant left because of safety concerns about the stairs in the house, even though the tenant had replied to this email denying that to be the case. The tenant reiterated that position on cross-examination (Transcript, p. 69) The Board failed to consider the tenant’s evidence to this effect or to explain why it was not credible. This was important evidence, and failing to consider it is an error of law.
[19] Third, in our view, the Tribunal failed to appreciate the evidence of the extent and severity of the deficiencies in determining the appropriate disposition of the application. Indeed, the landlord had stated in evidence that the damage to the house was overwhelming (Transcript, p. 80). He also agreed, in answering the Board member’s questions, that he did not disagree with the evidence with respect to the state of the unit.
[20] The Board, having found that the premises were not fit for habitation, had the obligation to determine an appropriate remedy pursuant to s. 30(1). It provides:
If the Board determines that an application under paragraph 1 of s. 29(1) that a landlord has breached an obligation under subsection 20(1) or s. 161, the Board may do one or more of the following:
(2) Order an abatement of rent;
(5) Order that the landlord pay a specified sum to the tenant:…
(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord’s breach.
[21] However, the member failed to turn his mind to the state of the premises and the overall circumstances, finding only that the tenant did not have grounds to terminate the tenancy. He failed to consider an appropriate remedy for the landlord’s breach of its obligations under s. 20(1), notwithstanding the clear finding that the unit was not in a good state of repair and unfit for habitation.
[22] Clearly, the tenant had no confidence in the landlord’s ability to make the unit fit and safe for habitation in a timely fashion. The landlord’s assurances to have the unit habitable by April 16, 2017 were not kept. The landlord expected that the tenant and his family would stay in an unsafe unit and pay rent while he continued repairs. Even basic safety and security issues like changing the lock code had not been done by the time the tenant and his family arrived. The premises were particularly dangerous for small children. The Board provided no explanation as to why no remedy was provided under s. 30(1). That is an error of law.
[23] Finally, the Board also failed to deal with the tenant’s T2 application. Given the finding that the property was uninhabitable, it would follow that there was also a substantial interference with the tenant’s and his family’s reasonable enjoyment of the property contrary to s. 22.
[24] Given these errors of law by the Board, the appeal must be allowed and the decision of the Board must be set aside. The remaining issue is whether to send the matter back to the Board.
disposition of the appeal
[25] The parties agreed that the tenancy agreement would be terminated on April 18, 2017. Before the Board, the tenant sought reimbursement for the rent paid and the deposit of $2,175, together with out-of-pocket expenses of $5,288.60. Those expenses included hotel and food, mileage, electricity charges, storage charges and increased rent at the new premises. He asks that this Court award these sums, rather than send the matter back to the Board.
[26] Pursuant to s. 210(4) of the Act, on an appeal, the Divisional Court may
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Board with the opinion of the Divisional Court.
[27] In our view, it is not necessary to engage the parties in the further expense of having this matter sent back to the Board for another hearing. The amounts sought by the tenant from the landlord are known to the landlord and were canvassed at the Board.
[28] Given the finding that the house was not fit for habitation and the parties’ agreement that the tenancy would be terminated, we are satisfied that the tenant is entitled to the return of his deposit and prepaid rent of $2,175. The landlord agreed that the last month’s rent should be returned. The tenant was unable to use the premises safely pending the repairs (other than storage in the garage, for which he offered to pay $100). The tenant should receive an abatement of the rent for April, given the finding and the clear evidence that the premises were not fit for habitation by the tenant and his family.
[29] In addition, we are satisfied that the tenant is entitled to reimbursement for his hotel cost of $134.47 and utilities of $155.64 paid for this rental unit that he could not occupy, for a total of $290.11 for out-of-pocket expenses. We acknowledge that the tenant was able to store some of his property on the premises for several weeks at a cost of $100, and we take this into consideration in determining the tenant’s entitlement to compensation.
[30] We would not award any amount for the higher rent at the new premises.
[31] We therefore allow the appeal, set aside the decision of the Board and order compensation for the tenant in the amount of $2,365.11, together with interest on that amount in accordance with the Courts of Justice Act from April 27, 2017, the date of filing with the Board.
costs
[32] The tenant seeks costs of the appeal in the amount of $6,000, including disbursements of close to $3,000 in connection with the filing and perfection of this appeal, including the transcript fee. The tenant submits that the amount sought for fees is lower than he could have requested on a partial indemnity basis, but further submits it is proportionate to the amount at issue.
[33] We are satisfied that there should be an order for costs in favour of the tenant, Robert Swan, against the landlord, David Liang, for $6,000 all inclusive, payable within 30 days of the release of this decision.
___________________________ Swinton J.
Mulligan J.
Raikes J.
Date of Release: March , 2019
CITATION: Swan v. Liang, 2019 ONSC 1573 DIVISIONAL COURT FILE NO.: DC-18-2371 LANDLORD AND TENANT BOARD FILE NO.: EAT-64913-17 DATE: 20190318
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Mulligan and Raikes JJ.
BETWEEN:
Robert Swan Appellant
-and -
David Liang Respondent
REASONS FOR JUDGMENT
THE COURT
Date of Release: March 18, 2019