CITATION: Daniel v. Tibbutt, 2023 ONSC 3520

COURT FILE NO.: DC-22-00000508-0000

DATE: 20230607

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Maria Daniel and Rohan Ram, Landlord (Appellants)

AND:

Lorie Tibbutt, Tenant (Respondent)

BEFORE: McWatt A.C.J.S.C., Backhouse and Howard JJ.

COUNSEL: Warren Rigby, for the appellants

Linda Naidoo, for the Landlord and Tenant Board

No one else appearing.

HEARD: June 5, 2023, at Toronto, by videoconference

ENDORSEMENT

howard j.

[1] At the conclusion of the hearing, we dismissed the appeal, with reasons to follow. These are the reasons.

Overview

[2] This is an appeal by the landlord appellants, pursuant to s. 210(1) of the Residential Tenancies Act, 2006,[^1] from the decision of Member Peter Nicholson of the Landlord and Tenant Board (“LTB”), which dismissed the landlords’ application for termination of the tenancy and for compensation for repairs caused by water damage.

[3] The respondent tenant took no part in the appeal before us.

[4] The RTA provides that a landlord may apply to the LTB for a remedy where a tenant’s willful or negligent conduct results in undue damage to the renal unit. Subsection 89(1) of the RTA provides as follows:

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.]

Factual Background Decision of the LTB

[5] The respondent tenant moved into the unit sometime after May 2021. In November 2021, the appellants inspected the unit and found water damage that, they submit, required replacement of the flooring, baseboards, kitchen cabinet gable, panels and doors. The appellants calculated the damage to be $12,316.54. Of that amount, $7,649.59 was claimed for repairs to the flooring.

[6] On the evidence before it, the LTB found there to be no “undue” damage to the cabinetry and doors and did not find that any damage to them was caused wilfully or negligently.[^2]

[7] The LTB noted that the tenant had acknowledged that there were some “issues” with the flooring and that she used a spray mop to clean them. The LTB found that there was damage caused to the flooring, noting that, in some cases, “the vinyl panels appear to be lifting.”[^3]

[8] The LTB observed, correctly in our view, that in order to succeed on its s. 89 application, the landlord “must prove that any damage caused to the flooring/trim and doors is both (i) “undue” damage and (ii) caused wilfully or negligently. For the reasons that follow, I am not satisfied on a balance of probabilities that the alleged damage was caused wilfully or negligently.”[^4]

[9] The LTB considered the different evidence as to the cause of the damage to the flooring.

[10] The LTB found that there was insufficient evidence to establish that the floor lifting damage was caused by any intentional act on the part of the tenant.[^5]

[11] It was suggested that the damage to the flooring was caused, at least in part, by pet urination. The LTB noted the testimony of the tenant on this point, who denied that the water issues were the result of pet urination because, she said, she crates her three dogs when she is not home. The LTF accepted that testimony and expressly found “her sole direct evidence believable in this regard.”[^6]

[12] The tenant suggested in her testimony that the water damage could have been caused by leakage from a child’s outdoor toy. The LTB expressly rejected that explanation. Rather, the LTB held that the damage was caused by the tenant’s mopping but found that the tenant did not act negligently because the floor lifting was not a reasonably foreseeable risk, as follows:

More likely, given the spread of water/moisture on the floor and the Tenant’s admitted use of a spray mop, I find the lifting on the vinyl floors was caused by the Tenant’s mopping. It is unclear, however, if the panel lifting was caused by merely one incident of wet mopping, or several. The Tenant has only resided in the rental unit for less than one year and there was no evidence she was pre-warned of special cleaning considerations so that she ought reasonably to have foreseen that her chosen cleaning method would cause damage. In the circumstances, I do not find that the Tenant acted negligently as I do not find the unfortunate floor lifting was a reasonably foreseeable risk. The Landlord’s application must therefore fail.[^7]

Analysis

[13] The statutory appeal provisions in s. 210(1) of the RTA restrict appeals of LTB orders to the Divisional Court to “only … a question of law.”

[14] It follows that findings of fact or findings of mixed fact and law cannot be appealed to the Divisional Court, including whether a tenant wilfully or negligently caused undue damage in the rental unit.

[15] In our view, all of the objections made by the appellants in the instant case involve challenges to the findings of fact made by the LTB or challenges to the LTB’s application of the law to the facts before it, that is, findings of mixed fact and law. None of them, in our view, involves a question of law and, as such, none of them is properly appealable to the Divisional Court.

[16] The appellant also argues that the reference in the LTB decision to the “vinyl panels” constitutes a misapprehension of the evidence because the flooring was made of laminate, not vinyl. The appellant argues that this misapprehension of the evidence is tantamount to an error of law. We disagree.

[17] The LTB made a finding of fact that there was damage to the floor caused by the lifting. What is important is that, whether vinyl or laminate, the LTB found that there was lifting and therefore damage. However, the LTB also found that there was insufficient evidence to determine that the floor lifting was caused by any intentional act on the part of the tenant. There is no reason to believe – and the appellants have not established on appeal – that the LTB’s finding would be different whether the material was laminate or vinyl. In the same vein, there is no reason to believe – and the appellants have not established – that the LTB’s conclusion on negligence turns on whether the material was laminate or vinyl. We find no merit in this argument.[^8]

[18] We also find no merit in the appellants’ argument, as reflected in para. 65 of the appellants’ factum, that the LTB “strictly relied on inconsistent and contradictory oral evidence of the [tenant] and did not consider most of the documentary evidence submitted by the [appellants].” In our view, even a cursory reading of the LTB’s decision demonstrates that the LTB did not “strictly” rely on the oral evidence of the tenant in making its various findings. As referenced during the hearing of the appeal, paras. 7 and 8 of the decision make express reference to the “picture evidence” – the photographs – that were tendered by the appellants.

[19] In the same vein, in para. 6 of its decision, the LTB expressly referenced the “Acton Flooring Assessment” and the “Service Master damage repair estimate” that had been submitted by the appellants.

[20] In sum, there is no merit in the appellants’ bald assertion that the LTB “strictly” relied on the oral evidence of the respondent tenant only, to the exclusion of any documentary evidence.

Conclusion

[21] The appellants were not successful on the appeal and are not entitled to costs. The LTB took no position on the merits, did not seek costs of the appeal, and no costs should be payable by it.

[22] For these reasons, the appeal is dismissed without costs.

Howard J.

McWatt A.C.J.S.C.

Backhouse J.

Date: June 07, 2023

[^1]: Residential Tenancies Act, 2006, S.O. 2006, c. 17 [“RTA”].

[^2]: LTB Order of Member Peter Nicholson dated August 9, 2022 [“Initial Decision”], at para. 7 [CaseLines reference A12].

[^3]: Ibid., at para. 8 [A12].

[^4]: Ibid., at para. 9 [A13].

[^5]: Ibid., at para. 11 [A13].

[^6]: Ibid., at para. 10 [A13].

[^7]: Ibid., at para. 11 [A13].

[^8]: Moreover, I would also note that in para. 6 of the decision, the LTB states that the photographs submitted by the appellants showed wet flooring, damp countertops, as well as pictures of the laminate flooring, trim, and cabinet toe kick panels.” [Emphasis added.]