SW Legal Services gets Big Win for Ontario Tenant against Bad Landlord
In this case our client, the tenant, suffered a medical crisis which hospitalized him for several months. In that time he spent in hospital the landlord, knowing he was in hospital, locked him out of his unit and disposed and or destroyed his life’s possessions. Our client was heartbroken to lose all his personal belongings, family photos, keepsakes, basic possessions etc.
The landlord refused to admit his wrongdoing and expert case preparation and courtroom presentation by Peter Swales secured a victory against the landlord for the maximum amount allowed under the jurisdiction of the Landlord and Tenant Board.
File Number: TNT-97327-17
D.L (the ‘Tenant’) applied for an order determining that S.K (the ‘Landlord’) harassed, obstructed, coerced, threatened or interfered with the Tenant, entered the rental unit illegally, altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant’s household.
This application was heard in Newmarket on December 13, 2017 and March 7, 2018.
The Tenant, the Tenant’s representative Peter Swales, the Landlord, and the Landlord’s representative O.P attended the hearing. M.K testified for the Landlord.
- 1. This application arises from unfortunate circumstances. In July, 2016, the Tenant suffered a medical crisis which put him in the hospital for nearly eight months, and left him permanently disabled.
- 2. While he was in the hospital, the Tenant suffered a second serious loss: the loss of almost all his possessions. In September or October, 2016, the Landlord entered the Tenant’s home and removed his belongings.
- 3. The Tenant brings this application seeking compensation for the value of the belongings the Landlord removed.
- 4. The Landlord takes the position that the Tenant agreed to give up his belongings. He says that the Tenant realized that he would be in the hospital for a long time and had no way to pay the rent. He says that the Tenant agreed that he could end the tenancy and dispose of his possessions.
- 5. For the reasons that follow, I find that the Tenant did not abandon his belongings. The Landlord was not permitted to dispose of them, and must reimburse the Tenant for them.
- 6. The rental unit is a basement apartment. The Landlord and his family live upstairs. The tenancy began on July 1, 2016.
- 7. The Tenant did not live in the unit for very long. On July 29, 2016, he had a medical crisis and was rushed to the hospital. At the time, he did not know how long he would be hospitalized. As it turned out, his condition developed complications and he ended up living in hospitals and rehab centres for nearly eight months.
- 8. On September 3, 2016, the Landlord visited the Tenant in the hospital. The Landlord says that during the visit, the parties made an oral agreement to end the tenancy. The Tenant acknowledged that he could not afford to keep paying the rent, and would not return to the unit. He asked the Landlord to save his electronics and his personal papers, and told him he could throw out the rest of his belongings.
- 9. The Tenant has a different recollection of the September 3 conversation. He says that the Landlord threatened to throw out his belongings and lock him out of the apartment, but he did not agree.
- 10. A week or two after the September 3 conversation, the Landlord retook possession of the rental unit. He took most of the Tenant’s household items, with the exception of his electronic devices and a few pieces of furniture, and put them in the driveway beside the house, covered by a carpet. He says that he kept the electronic devices and remaining furniture, and still has them stored in the residential complex.
- 11. Over the ensuing months, the Tenant periodically contacted the Landlord to make arrangements to pick up his belongings. Unfortunately, he was not able to follow through on those arrangements, as his condition worsened and he could not leave the hospital. He was eventually discharged on March 19, 2017.
- 12. The day he was discharged, the Tenant attended the unit to collect his belongings. It was at this point that he discovered that most of his belongings had been sitting in the driveway, protected only by a carpet, for months. He declined to take any of them. He also did not collect his electronic devices and furniture.
- 13. The Tenant filed this application on September 8, 2017. He seeks an order that the Landlord compensate him for the value of his belongings.
The Landlord’s position
- 14. The Landlord raises three defenses to this application.
- 15. First, the Landlord argues that the tenancy terminated pursuant to an oral agreement the parties made on September 3. He argues that the Tenant vacated the unit by instructing the Landlord to remove and store his electronic devices, and abandoning his remaining belongings. Accordingly, the Landlord argues that he was free to dispose of the belongings. Further, he argues that even if the disposal was improper, it occurred after the tenancy ended and therefore is not within the Board’s jurisdiction.
- 16. Second, the Landlord argues that if he improperly ended the tenancy, he did so in early September, 2016. The limitation period for this application is one year. The Landlord argues that if he contravened the Residential Tenancies Act, 2006 (the ‘RTA’), he did so more than one year before the application filing date of September 8, 2017.
- 17. Third, the Landlord argues that if he is liable for the Tenant’s losses, those losses were limited. He says that he preserved the Tenant’s belongings by protecting them with a carpet. The Tenant could have recovered them on March 19, and instead chose to abandon them. The Landlord still has the Tenant’s electronics and some furniture, and is willing to return those items. Hence, he argues that the Tenant has suffered little or no loss.
- 18. I will consider each of these defenses in the course of my analysis of the issues.
Did the tenancy terminate?
- 19. The central issue in this case is what happened in the conversation between the parties at the hospital on September 3, 2016. The Landlord says that the parties agreed that: (1) the tenancy would end; (2) the Landlord would remove the Tenant’s electronic devices from the unit and store them for him; and (3) the Tenant had abandoned the rest of his possessions and the Landlord was free to remove them from the unit and dispose of them.
- 20. This would be a highly unusual agreement, since it would involve the Tenant throwing away most of his worldly possessions. However, if the parties really made that agreement, it would have resulted in the termination of the tenancy.
- 21. An agreement to terminate, by itself, does not terminate a tenancy. Pursuant to section 37 of the RTA, the tenancy would only terminate if the Tenant vacated the unit in accordance with the agreement. Vacating includes removing one’s belongings. In this case, the Landlord is saying that the Tenant removed his belongings by appointing the Landlord to remove them for him. If that is what happened, then the Tenant vacated the unit and the tenancy terminated pursuant to section 37.
- 22. I must determine, on the evidence, whether that is what the parties agreed to on September 3.
- 23. On a balance of probabilities, I find the Tenant’s testimony regarding the September 3 conversation to be more credible than the Landlord’s. It is not plausible that the Tenant would abandon most of his worldly possessions, simply because he was ill.
- 24. The Tenant’s testimony is also corroborated by an email he sent to the Landlord on September 21, 2016, begging him not to throw out his belongings. Although the Landlord never received the email, the fact that the Tenant sent it is not consistent with the Landlord’s testimony that the Tenant no longer wanted his belongings. It is consistent with the Tenant’s testimony that the Landlord had threatened to dispose of them against the Tenant’s wishes.
- 25. I therefore find, on a balance of probabilities, that the Tenant did not agree to terminate the tenancy or that the Landlord could dispose of his belongings.
- 26. That being said, even if I were to believe the Landlord’s testimony, I would still not find that the Tenant had abandoned his belongings. The Landlord testified that the Tenant told him “I don’t want to live there,” “I don’t have any money,” “just keep the electronics,” and “do what you want.” He asked the Tenant if he could store his belongings under a carpet, and the Tenant agreed.
- 27. To abandon his possessions, the Tenant would have had to make a very clear statement. It would not have been sufficient for him to simply say that he did not want or need his belongings anymore. He would have had to clearly and unambiguously authorize the Landlord to dispose of them on his behalf. Vague statements such as “do what you want” cannot reasonably be taken as a renunciation of ownership of the majority of the Tenant’s possessions.
- 28. Furthermore, the conversation took place at a time when the Tenant was at the Landlord’s mercy. He was very ill and was not in a position to return to his home, remove his belongings, or even take legal steps to preserve his rights. In that context, his acquiescence to the Landlord’s proposal to store his belongings under a carpet cannot reasonably be interpreted as abandonment of the belongings.
- 29. In short, I do not believe the Landlord’s testimony as to what the Tenant said on September 3, but if I did believe it, I would nonetheless not find that the Landlord was authorized to dispose of the Tenant’s belongings or retake possession of the rental unit.
- 30. Following the September 3 conversation, the Tenant was still in possession of the rental unit. He had not abandoned his belongings. The tenancy did not terminate.
Did the Landlord harass or threaten the Tenant, or change the locks?
- 31. The Tenant alleges that the Landlord engaged in various breaches of the RTA in early September. Essentially, the Tenant says that while visiting him in the hospital, the Landlord threatened to illegally evict him and throw out his belongings. He also says that the Landlord illegally changed the locks.
- 32. I do not need to consider the Landlord’s conduct during his visits to the Tenant in the hospital, because the conduct took place prior to September 8, 2016. It is outside the limitation period for this application.
- 33. I also do not need to decide whether the Landlord changed the locks. Doing so would have been contrary to the RTA, but it would not have affected the Tenant since he was not able to leave the hospital and was not trying to enter the unit.
- 34. I need only note that none of the alleged conduct would have had the effect of terminating the tenancy. Since the Tenant had not vacated the unit, the tenancy continued, whether or not the locks were changed.
Did the Landlord substantially interfere with the Tenant’s reasonable enjoyment?
- 35. The Tenant’s main complaint is not that the Landlord threatened him or locked him out. It is that the Landlord removed his belongings from the rental unit.
- 36. The Landlord had no right to remove the Tenant’s belongings. Doing so obviously substantially interfered with the Tenant’s reasonable enjoyment of the unit. The Tenant had not vacated the unit, so the interference took place during the course of the tenancy.
- 37. I am satisfied that the interference occurred within the limitation period for this application. The Landlord testified that, after he met with the Tenant in the hospital on September 3, he waited for a week or two before entering the unit and removing the belongings. This means that the interference took place after September 8, 2016.
- 38. The Landlord is liable for the losses the Tenant suffered as a result of having his belongings removed from the unit.
What were the Tenant’s losses?
Items in the driveway
- 39. The Landlord claims that he adequately preserved the Tenant’s belongings in the driveway by covering them with a carpet. There is no air of reality to that claim. The items were outside for six months. A carpet would obviously not protect them from the elements for that length of time.
- 40. On March 19, 2017, the Tenant took photos of the items in the driveway. The photos show numerous items which could not possibly have survived six months of rain and snow, such as a lamp, a lampshade, particleboard furniture, and a mattress. Those items would have been soggy and mouldy by March 19.
- 41. It is evident from the photos that the items were left in a jumbled heap on the driveway. It would not be reasonable to expect the Tenant to sift through a large, soggy mess to see if any small items, such as pots and pans, could be salvaged.
- 42. Pursuant to section 16 of the RTA, the Tenant had a duty to take reasonable steps to minimize his losses. I do not find that it would have been reasonable for him to try, on March 19, to salvage any of the items left in a pile on the driveway. It was reasonable for him to conclude that the items had all been damaged beyond repair. The Landlord is liable for the replacement value of all those items.
Electronics and furniture
- 43. The Landlord says that he stored the Tenant’s electronic devices, and a few pieces of furniture, in the rental complex. He says that those items are still available and he can return them to the Tenant.
- 44. The Tenant has not seen the items allegedly stored in the complex. He cannot confirm whether they are all there, nor whether they have been damaged.
- 45. At this point, I have two options. I could order the Landlord to compensate the Tenant for the value of his electronics and furniture. Alternatively, I could order the Landlord to return the items, and then reconvene this matter to hear the parties’ evidence as to whether the Tenant has suffered any losses respecting the items.
- 46. In the circumstances of this case, I find that it would not be reasonable to prolong the proceedings by ordering the return of the Tenant’s remaining belongings. The Landlord has already had ample time to return them. This application was filed in September, 2017. The parties have both been represented by legal professionals since at least December, 2017. The Landlord has acknowledged throughout that the items are the Tenant’s property. There is no reason he could not have arranged to return them.
- 47. I realize that the parties may have canvassed the return of the Tenant’s items in settlement discussions. However, given that the items unquestionably belonged to the Tenant, the Landlord ought to have returned them regardless of whether a settlement was reached. There is no evidence before me that he tried to do so. In fact, the only evidence on the subject is the Landlord’s testimony, on cross-examination, that he would have returned the items if the Tenant had withdrawn this application. In other words, it would appear that the Landlord has been improperly withholding the Tenant’s property in an effort to induce him to settle.
- 48. The Landlord also argues that the Tenant could have collected his items on March 19, 2017, but declined to do so. He testified that the Tenant refused to take the items unless the Landlord signed a waiver guaranteeing that they were in working order.
- 49. I do not find the Landlord’s testimony this regard to be relevant. Even if the Tenant acted unreasonably on March 19, that did not relieve the Landlord of the obligation to return the items to their rightful owner. He has had almost a year since then to do so.
- 50. At this point, the Landlord has had ample opportunity to return whatever of the Tenant’s property he has retained. It would not be fair to the Tenant to now order his property returned, leading to further litigation over whether everything is present and undamaged. I find the Landlord to be liable to the Tenant for the replacement value of the property.
Value of the belongings
- 51. The Tenant pleads that the total replacement value of his lost belongings is $40,400.00. However, some of the amounts he claims are not supported by sufficient evidence.
- 52. The Tenant says that he had $5,000.00 in cash in his home office. He has not explained why he would have so much cash, and I do not find it to be plausible. That amount will be deducted from his claim.
- 53. The Tenant also claims to have owned a laptop computer, a desktop computer, two iPads, and a tablet, all of them quite expensive. He testified that some of the electronics were for his children’s use when they visit. Even so, it is hard to believe that a person living alone would own that many computers. The Tenant tendered some old family photos showing the items, but the photos do not establish that he still had them when he moved into the unit. I have deducted the value of the iPads, tablet, and laptop from his claim.
- 54. The Tenant also claims to have lost $6,200.00 worth of computer software. That claim does not make sense, because computer software is usually owned by license. There was no evidence that the Tenant has contacted the vendors to ask for new copies of his software.
- 55. Finally, the Tenant has not established that the Landlord is liable for the value of his living room couch. When the Tenant had the medical crisis on July 29, 2016, he suffered from sudden acute diarrhea. The Landlord testified that the couch was soiled by the diarrhea and could not be salvaged. I find the Landlord’s testimony in this regard to be credible. The loss of the couch was nobody’s fault, and the Landlord is not liable for it. $3,000.00 will be deducted from the claim to reflect this.
- 56. It would not be realistic to make individual findings of fact respecting the replacement value of every item from the Tenant’s home. Aside from the items mentioned above, I find the Tenant’s estimates of the value of his furniture, TV, and other lost items to be reasonable and credible. When I deduct the amounts that have not been established, the Tenant’s claim comes to $23,500.00. That is the amount that will be awarded.
It is ordered that:
- The Landlord shall pay the Tenant $23,500.00.
- If the Landlord does not pay the Tenant the full amount owing by March 27, 2018, he will owe simple interest calculated from March 28, 2018 at 3.00% annually on the balance outstanding.
April 5, 2018 _______________________
Date Issued Dale Whitmore
Member, Landlord and Tenant Board
47 Sheppard Avenue East, Suite 700, 7th Floor
Toronto ON M2N5X5
If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234.