- Posts: 129
- Joined: January 26th, 2010, 9:28 pm
- Posts: 129
- Joined: January 26th, 2010, 9:28 pm
The best part was the tenants moved in with a 1/4 tank of oil and in December I didn't see any chimney smoke so after no response from the tenant I finally entered to see what was happening and they had no oil.
The Member told me I had to prove there was oil when they moved in. Of course this was all unexpected and I wasn't prepared and the tenant said even though they had been there from May 1 to December 8th they had not turned on the furnace. Never mind the fact they hadn't ordered any. I can prove it but I couldn't with short notice.
Now I have an order against and it isn't the money but I certainly don't like the language
- Posts: 129
- Joined: January 26th, 2010, 9:28 pm
- Posts: 1882
- Joined: August 8th, 2009, 5:42 pm
To go to an appeal (via divisional court) in must be on an error or law. If you feel the adjudicator was allowing tenant's word but not yours may be enough.
Is it possible for you to scan your order and email it to me? I have gone over hundreds of LTB orders and now I am researching (LTB) appeals to divisional court. I did read one where the landlord was not given time to prepare for a defence or explain at their hearing (of ambush maintenance claims) and won at divisional court. The div court judge cancelled to original LTB hearing order and ordered another LTB hearing on the same issue.
I will PM you my email address if you wish to email me your order.
- Posts: 129
- Joined: January 26th, 2010, 9:28 pm
Yes, the place was being occupied. When they didn't reply to me for no oil and therefore no heat I did what I though was the quickest method to protect the pipes and pump. I've had someone freeze pipes then call me to tell me the roof was leaking. Mega damage
- Posts: 129
- Joined: January 26th, 2010, 9:28 pm
This appeal will follow the reasons given by the board member as given by Freda Shamtutu.
In general the tenants only re-stated their claims as per their T2 application with no proof. What they deemed as proof were some undated and unlabeled photos and a group of emails. The emails provided where disorganized and the Member nor I could follow the sequencing making it impossible for me to properly understand them on such short notice. In many of the complaints the T2 was the first time I had even heard of the complaint. In this hearing I was essentially guilty and I was to prove my innocence. My understanding of the law is that they are to give evidence for their claims then I'm to give my evidence and this didn't happen. Having brought the heating issue and the December 8th water problems into this T2 application made it impossible to provide an adequate defence. I was unable to call witnesses or gather evidence.
1.The residential complex comprises two houses. One of the houses is leased by the Tenants while the Landlord's daughter occupies the other house.
This is mostly true. The error of fact. There are 2 tenants which occupy the other house
2.On may 15, 2009, the landlord opened the door to the tenants' unit and let a Children's Aid Society(CAS) worker into the tenant's unit without the knowledge and or the consent of the tenants.
On this day I was approached by their CAS worker who identified herself as the tenant's worker. I did not let this person into the unit. What I did was open the door and call into the house. The tenant was coming down the stairs and she invited the worker into the house herself. I thought I was helping out the tenant who might not want to miss an important visit. I did not do this to be malicious. I did not know and didn't know until the hearing that I had done something wrong in their minds. There was no proof one way or the other.
The error here is that it was my word against the Tenants word and if this was the case certainly her worker might have come as a witness to this effect. No witnesses and no proof was provided.
3.The Landlord and the other tenant of the residential complex who is the Landlord's daughter allowed their dogs to roam around the residential complex without supervision and or on a leash. The dogs defecated on the residential complex and the landlord and his daughter do not pick up after their dogs. The Tenants submitted pictures of the dogs unrestrained and unsupervised and also submitted pictures of the dog's feces.
This is not true. The member was told in the hearing that the dogs are only puppies and are not ever allowed outside without supervision. The property is located on a fast country road and they would be run over if allowed out unsupervised. The dogs feces are always picked up as we don't want to step on it either. The tenants said the dogs did it so much they couldn't walk on the grass, yet of the pictures submitted of dog feces they admitted they did not see our dogs do those feces shown in the photos. If they did it this much it shouldn't have been too hard to have a photo of one of the dogs defecating on the lawn and yet they didn't. In any event we would pick up after them and a photo wouldn't be proof we didn't pick up. Only 3 pictures were submitted of the dogs and two were of my dog who is only there periodically as I don't live there. The other was of my daughter's dog through a screened window. This isn't proof the dogs were unsupervised. There were photos of my dog and then me riding a tractor which were taken the same day. The dog was never more than 50 feet away.
The error. This is not evidence of unsupervised dogs. It does not give the full picture only a snap shot of a small area. The pictures taken of my dog I was just out of the photo. There was no proof of unsupervised dogs and therefore there can be no judgement against.
4.The landlord claims that this is a farming location and that it is possible that the animal waste came from wild animals and not from his or his daughter's dogs.
5.I find on balance of probabilities the wild animal waste belong to the Landlord's daughter's dogs and not from wild animals as claimed. The standard of proof at a Board hearing is based on the balance of probabilities and not on the basis of beyond reasonable doubt as in criminal cases. Therefore, on balance of probabilities, I find it more probable than not that the waste belongs to the Landlord's and his daughter's dogs than on wild animals. This is because the dogs are allowed to roam freely unsupervised. Therefore it is more probable than not that the dogs' defecate on the property and that the landlord and his daughter do not pick up the dog's waste.
I'm not sure why the member finds this unreasonable. The tenant had no photos of our dogs defecating on their lawn or that the feces wasn't picked up if they did. We are 2 of just 4 houses on the edge of the Niagara Escarpment. We are surrounded by natural habitat of foxes, wolves and coyotes. To top it off we have the neighbours dog defecating on the lawn which we have provided a photo. This dog was certainly unsupervised and therefore it wasn't picked up by his owner. In using the Members own logic there is a large probability some other animal defecated on the lawn. I cut the grass on occasion for the whole lawn and I rarely saw feces anywhere.
The error is this matter was brought to my attention once and it was dealt with. There was never another complaint and no evidence was brought to show either they had complained or that the dogs defecated on the common grounds.
6.The tenants are on a regular basis, accosted by the Landlord's and his daughter's dogs which as stated above are allowed to roam around the property unleashed and unsupervised. The dogs jump on the tenants and lick the tenants. While the tenants are not dog haters, the dogs' actions disturb the tenants as they don't like the dogs constantly jumping on them and or wanting to play with them.
Once again the dogs are always supervised. My daughters dog is young and still being trained so there have been instances where the dog has approached the other tenants. This is few and far between. I have dozens of emails from the tenant and apart from one conversation only about feces we had when my daughter first started renting there, the Tenant never complained again so I felt the the problem had been dealt with in a manner satisfactory to the Tenant. I'm not sure why the Tenant states he is not a dog hater as on the 2nd of February 2010 he actually called the dogs close and then kicked the one dog with work boots.
The error here is no evidence of dogs accosting the tenants.
7.The landlord's daughter's boy friend drives through a a lane way that runs through the premises leased by the Tenants. This action disturbs the tenants as it is done in the middle of the night when the tenants are sleeping. The Landlord's daughter's boy friend drives a truck which makes a lot of noise when being driven. This is especially disturbing as it is done at night. While I find the Landlord's daughter's boy friend have a right to have use of the lane way, such use should not disturb the Tenants. In other words, the other tenant and her guests should be considerate of the fact that the lane way runs through the premises rented by the Tenants and that they should use the lane way with caution especially at night so as not to disturb the Tenants.
The daughter's boy friend is also a tenant on the property and shares a unit with my daughter and he has been told to park his trailer in an area I deemed to be safe and out of the way of all who use the property. The other tenant's truck is a virtually new truck with a proper muffler system. He also has not and never did move or access his trailer later than 8 pm. Again, the tenant with a multitude of emails never emails a complaint. The Tenant does not have control of the entire property as it is a multi tenanted property. The only exclusive use is the inside of the house and the deck area. The other tenants were told after the only complaint in the spring for the dogs were asked to keep a wide berth of the neighbour which I believe they did.
The error here is there was never a complaint and no proof of a complaint was given as evidence. The only proof given was photo of a truck on the driveway pulling a trailer which does not give evidence of noise.
8.The Tenants' lease includes the use of the basement. The tenants are responsible for paying utilities for the unit.
The use of the basement is strictly for storage and was never meant for the Tenants exclusive use. There is no proof one way or the other and there was no lease provided as evidence that it did. The Member in error asked for a copy of the lease which the Tenants provided but a copy they used was not provided to me. It therefore could not be used as evidence as it was never properly introduced.
I never thought I should specifically exclude something from the lease. This area is just a cellar and crawl space with a furnace, hot water tank, oil tank and a sump pump. I have always had access to this space and only allow storage. There is no access from inside the house and the door is only 5 feet high to enter. I have access to this area to make sure the sump pump is working, the oil is in good supply and to read the water meter. This is a utility area much like in an apartment building and I have never had it part of the rental space.
9.On September 2, 2009, the Tenants did not have water in the cistern. The Landlord instructed his daughter to go into the basement of the Tenants' unit and turn off the pump. The Tenants were not able to have use of whatever water could have been in the tank. The Tenants did not consent to the Landlord's daughter accessing their unit(basement)
There was no water for any tenant as the water had not been checked and they used all that was available. The fact that my daughter turned off the pump did not cause them to not have water. I instructed my daughter to go into their basement because I was unable to be there. I'm allowed to have someone do things for me and in this case the running of the pump without water would either damage the pump and or cause a fire. This was an emergency situation and although I told her just to enter the basement. She felt uncomfortable doing so and knocked on the tenants' living space door before entering the basement. She only did so when there was no response.
The error here is that this was an emergency situation. Notice of entry is not required in any event but my daughter who was my representative there did try to ask for permission. This is not an infraction.
10.On October 2, 2009 or thereabouts, the tenants purchased 3,200 gallons of water. The Landlord was unaware that the tenants purchased water. On October 5, 2009, the Landlord' and or on his instructions the Landlord's daughter, went into the Tenant's unit(basement) and without the knowledge and consent of the Tenants and turned off the water pump. Since then, the Tenants have not been able to access the basement as the Landlord changed the locks to the basement or locked the basement in such a manner that the tenants' key does not open the basement anymore.
The other tenant and I believe the Tenant has lied about the purchase of water. There was no proof provided by the Tenant they purchased the water. Their proof consisted of a receipt that was dated December and didn't have an address for delivery. They also said they paid cash which isn't very traceable.
There were a number of emails back and forth on this issue and the Tenants never said they had put water in. The tenants water was shut off for non payment. We called the operator of the Haulage co and he did not remember the delivery and stated he would not have delivered that much water for that sum of money. He said it would be at most 3,000 gallons. The other tenant decided to order from the same co and her volume was only 3,000 gallons and not 3200 gallons as the Tenants claimed they received.
On top of that my daughter also put 4400 gallons in the tank at the same time as the other Tenants claimed they did and the tank only hold 6000 gallons. This does not add up. We did a calculation based on all the water put in the cistern and read the water meter and the amount does not add up either. The tenants was specifically instructed to pay the water money to the other tenant so there would be no mix ups or over purchase of water. My email of June 13th says precisely this.
The lock was not changed and I have no explanation of why their key wouldn't work. I do know that when pressed for their key so I could see why it didn't work the Tenants told me it was working. It was winter and the lock could have been frozen but at no time was the door lock changed.
The errors here. The Tenants were shut off from water for non payment by the tenant who owned the water. The Tenants never gave a water receipt until the hearing almost 2 months later and with the confusing unorganisedly mess they presented their evidence. They have yet to provide a receipt to the tenant who supplies the water. I never noticed the receipt was dated for December and the receipt did not have a address or gallons provided. No evidence was provided the lock was changed or that the Tenants had water they owned and were not provided access to. The Tenants caused their own problem by changing the routine they were asked to follow June 13th and may or may not have purchased any water.
11.As stated above, the Landlord shut the water supply on October 5, 2009. Water was turned back on by the tenants on October 6, 2009. On December 8, 2009 the Landlord shut the water again. As at the date of the hearing, the water has not been turned back on. At the hearing the Landlord stated that “ now that he has a termination date, the water would be turned back on”.
The water was turned off October 5th for non payment of water to the other tenant. It was turned off by me December 8, 2009 because there was no visible means of heat. If you go to the hearing tape what I said was almost the same except I did not say “water”. This is major error. What I meant was I would bleed the oil furnace and restart the furnace. The member would not let me explain and at the time I didn't know she was referring to the water when I was referring to the oil. The tenants had run the oil dry and were not responding to my request to fix the situation. I turned off the water because the house was not being heated and I was afraid the water pipes would burst. The member was well aware the oil tank was dry and failed to mention this in her order. She even went on to tell the tenants they had to use the heating system provided and that was the legislation. This is another major error for a ruling against me. The omission of the no heat situation by the member seriously prejudices my situation when the tenants are to provide the heating.
12.On October 15th, 2009 or thereabouts, the tenants called the Landlord to inform him that they had purchased water and ask why the Landlord had turned off the water. The Landlord swore at the tenants calling them names and then hung up the phone on the Tenants.
The Tenants were specifically told to pay for their water and after many emails asking for payment which they ignored they tell us they actually brought their own water in after it was shut off. It is important to note the water was shut off so the tenant could turn it back on. The Tenant is a boiler man and is very familiar with valves in his line of work. He states he was unable to see in the dark, but there are lights in the basement and he was able to take a picture of the valve which he provided as part of his evidence. With the numerous emails back and forth it was clear long before this point the Tenant was just trying to provoke me and I did loose my temper and swear.
13.The Landlord in October and November 2009 sent the Tenants a number of emails threatening to shut off the water and accusing them among other things of having stolen or appropriated his belongings which he allegedly left in or around the residential complex. The Tenants deny having removed and or appropriated the Landlord's belongings.
The messages were not in any way threatening and I have attached the emails referred to by the tenants. The Tenants only said they were threatening and didn't read even one of these threatening emails as evidence. If the Member has heard no threats how can she come to this conclusion?
The tenants although I'm not able to prove it beyond a reasonable doubt did remove my tools left at the job site. The Board Member at the hearing didn't see the relevance that the tenants power washer which were visibly in the open and near my tools did not disappear when mine did. One of my tools was lying on the ground near my shed and unless someone walked over it it would not be invisible from a close distance. I did not accuse and I suggested I would involve the police if they were not returned. There were no threats and non were proven.
14.I find that the Landlord has no right to turn the water off. Section 233 of the residential Tenancies Act, 2006 (the Act) makes it an offence for a person to “knowingly” withhold the reasonable supply of a vital service or to interfere withe the supply in contravention of section 21 of the Act.
The water was shut off by my daughter for non payment. The fact the Tenants did not inform her in a timely manner they had purchased water was just as much their own fault. The second time I turned off the water to protect my pipes from freezing when after numerous emails the Tenant failed to respond to why the house was not being heated. In this case the Tenant could have caused serious damage to the rental unit and then they would have been without water or a place to stay for an extended period of time. I think turning the water off and draining the pipes was prudent in light of the tenant not responding. The Member knew there was no heat in the house and still she is finding me at fault. It was up to the Tenant to make sure there was oil in the tank long before it turned cold. They only purchased oil 2 days after the water was shut off and then I think to make it look good for their hearing. In the hearing they stated that the electric heaters they were using were more than adequate to heat the house. I have enclose a recording from the tenant that declares they are freezing. They lied in the hearing about how warm the house was which only confirms I did the right thing in shutting down the water.
15.I find that the Landlord withheld a reasonable supply of a vital service, that the Landlord was obligated to supply under the tenancy agreement or deliberately interfered with the reasonable supply of vital.
The tenant was obligated to pay for water and did not or at least failed to communicate they had purchased water. The second time the tenant failed to provide heat which they were required to do. The Tenant believes they are not under any obligation to pay their bills and once again the Member who did this hearing has erred in failing to address the lack of heat the Tenant was to provide.
16.I also find that the Landlord harassed, threatened and interfered with the Tenants. I find that by letting the CAS worker into the tenants' unit without the Tenants' knowledge and or consent and by repeatedly going into the basement to turn off the water, the Landlord and or his agents entered the rental unit illegally.
It has an exterior door so when I entered I did not come through their living space and entered my own space. No proof was provided the tenant rented this space. The CAS worker was not let in by me. I only opened the door and called in to see what was happening to the tenant. The tenant herself let the CAS worker in.
The water was turned off for non payment, no water which was an emergency situation and again for an emergency situation for no heat.
The error here is no proof was provided for harassment, threatening or interfering. Only allegation were submitted and an emergency entry is allowed under the Act if it is deemed I did rent the cellar.
17.The Landlord, by allowing his daughter's boyfriend to drive through a lane way late at night and making noise in the process; and by letting his dogs and his daughter's dogs roam around unsupervised, unleashed and defecating on the complex without picking up after the dogs; and by writing threatening letters to the tenants and accusing them without proof of having appropriated his belongings, substantially interfered with reasonable enjoyment of the rental unit or residential complex by the tenants or by a member of their household.
The member takes the tenant at their word without even a compliant and without evidence and then although my stuff just disappears she finds this hard to believe because I have no proof. This Member has a clear bias in favour of tenants when it comes to presentation of evidence. She even offered to go through all their evidence after the hearing. Unless the photos were explained she could not have possibly understood what they meant and I wouldn't have had an opportunity to offer a defence of anything she saw after the fact and may have improperly interpreted. Much of the evidence they brought to the hearing was never mentioned so how is this to be cross examined when it is done separately by the member.
18.However I find that the Landlord's action of turning off the water was not done in malice but through a false sense of entitlement. Therefore I am not satisfied that the Landlord should not pay a fine to the Board.
I'm not sure what the Member means by entitlement. Non payment of water, and no heat and an emergency are very good reasons. The error is emergencies are allowed under the Act.
19.The Board's Interpretation Guidelines provide that an administrative fine is a remedy to be used by the Board to encourage compliance with the Act, and to deter landlords from engaging in similar activity in the future. The Guideline further provides that the remedy is not normally imposed unless a landlord has shown a blatant disregard for the Act and other remedies will not provide adequate deterrence and compliance.
I believe I acted within the Act at all times.
20.I find that an abatement of rent of $800 to be reasonable compensation.
The tenants only asked for $400 in their application and when they asked for this amount to be increased I objected. I was ignored on this matter and the amount should never have been greater than the amount on the application. It is my understanding that in order to change the amount the Tenant had to have either my consent which I didn't give or had to have the application changes and have another hearing date.
21.The Landlord shall effective the date of the hearing turn the water back on. If the Landlord does not turn the water back on as at the date of the hearing, the Landlord shall also pay to the Tenants $50 per day from the date of the hearing to the date the Landlord turns the water back on.
I did for the tenant what I should have hired a technician to do and that is to bleed the oil line to restart the furnace then charge back the cost after they negligently let the oil run out. I then also restarted the water system the same time heat was re-established.
- BTL yb dewercs
- Posts: 666
- Joined: January 10th, 2010, 11:07 am
Hamiltonlandlord wrote:wow no help??
I'd like to give you some help, but I'm not an expert on this. In addition, I am unable to get a complete "feel" of your case, perhaps due to not having enough details. Did you take up smalltowns advice? Did you email the order to smalltown? I'm thinking that if you had, much of your concern would be satisfied.
Sounds as though you feel that you did not receive a fair hearing, maybe you should consider what I have done and am doing, stir the pot! Letters of complaint regional manager, LTB Chair Dr. Ma (ist letter on OLA front page), Fareed Amin. and most importantly investigation by the Ontario Ombudsman, and that is only to date, Wait for it!
- Posts: 1882
- Joined: August 8th, 2009, 5:42 pm
If you felt the tools were stolen, you should have called the police and had a report as evidence. You can still call them.
Shutting off water is a big no no. The order mentioned you did it for non payment and only municipalities are allowed to do this; not landlords. On that point you should have stuck to your argument that it was to protect pipes from freezing (mitigating yours and tenants damages) and preventing pump from running dry because of no water in cistern (once again mitigating damages).
You can never unlock the door to tenants unit with no notice unless for emergencies; opening the door for the CAS worker is not an emergency.
The dog poop issue is your fault. The member decided on a balance of probabilities; this is allowed under the act. You did have dogs running loose and you didn't have proof that wild animals crapped on the property. What you should have done was say you built a dog run and cleaned up the crap as soon as you found out it bothered the tenant.
You should have given the tenant an N5 for letting the oil tank run dry as furnace won't run until pipes are bled. You might still be able to do this. Give them the bill from the oil technician who bled the pipes. If they don't pay, give them the N5 notice, if they still don't pay file an application against them for this.
The only issue that might win you an appeal is the evidence at the last minute that you weren't given time to go over. You mentioned that you couldn't see the lease; don't you have a copy of it?
Regarding the basement, is it an area for both houses? It should have been specifically mentioned in the lease that tenant cannot access the basement and tenant should never have had a key in the first place. Once you give access to an area, you can't just take it back without lowering the rent a little bit. You might be able to do this now if you don't want tenant to have access to basement. Take off $5 a month from rent, give them a notice that they no longer have access to this area, then change the locks (not too sure though about changing locks), the only issue they may have with this is the amount of rent abatement and how much value they (or adjudicator) give the basement space.
Hope this helps.
Is it worth the appeal for $800? You can ask for a review through the LTB but it can only be reviewed through an error of law and I'm not sure if the whole case gets retried or just the part where the error occurred (like not being able to review evidence in a timely manner).
You should have posted everything before the hearing and we could have helped but I don't think you were a member then.
Who is online
Users browsing this forum: Alexa [Bot], Exabot [Bot], fergusjo, Yahoo [Bot] and 75 guests