1. The Tenants were not able to participate in the proceeding because the Member refused to hear any evidence or submissions from the Tenants. The hearing tape confirms that there is a total disconnect between the Member’s statements at the hearing and the written order. The written order implies that the Member follow proper procedure during the hearing and granted the tenant a reasonable opportunity to participate in the proceeding whereas the tape of the proceedings confirms that the Member failed to grant the Tenants an opportunity to give evidence and make submissions on the issues of “details in the application” as implied in the written order.
2. The Member erred at law and fact in her interpretation of the applications before her by determining that Form T2 and Form T6 that were filed by the tenants were improper and that the Tenants should have filed a Form T3 to deal with the fact situation of their application being that the landlord failed to complete repairs to the basement.
3. The tenants commenced their tenancy on January 1, 2015. Prior to commencing their tenancy, the tenants were advised by the landlord that the work to complete the basement of the rental unit would be completed in three to five days. The tenants took possession of the rental unit with a basement that only contained unfinished drywall. During the term of the tenancy, the basement remained incomplete with the exception of electrical work that was completed in April 2015. It is respectfully submitted that this would have been the evidence of the tenants at the hearing but the Member refused to grant the tenants the opportunity to give this evidence. The tenants also had video to support their evidence but this was not allowed by the Member.
LAW AND FACT
4. With respect to the difference between the hearing and the written order, the tenant hereby submits a copy of the tape along with this written review that confirms the actions of the Member at the hearing. At the 1:55 minute point of the tape the hearing commences. The Member stated that she would not hear any submissions or evidence from the tenants. Further to this, she verbally dismissed the tenant`s application solely on the basis that the tenant …….”filed the wrong application and that the tenants should have gotten better legal advice” and that the T6 is only about “things that are broken“.
5. The tenants submit that the tape clearly contradicts the written order which states that the Member dismisses the tenants’ T2 application because it did not indicate that the landlord illegally entered the rental unit during the relevant period and that the landlord substantially interfered with the tenants. Similarly, the Member dismissed the tenants’ T6 application because it did not concern a repair or maintenance issue.
6. Although the Member did not specifically state that the tenants should have delivered a T3 application for a rent reduction, the tenants submit that in stating that the tenants filed the wrong application and that there was “no repair issue” and that the T6 was only about, “things that are broken”, this assumption would be the only logical conclusion that would explain the Member`s action.
7. The tenants submit that the Member erred in her interpretation of the RTA since the fact situation of the tenants` application cannot be remedied by a T3 application as there was no reduction or discontinuance of a service of facility.
8. A T3 application relates to section 130 of the RTA which states,
130. (1) A tenant of a rental unit may apply to the Board for an order for a reduction of the rent charged for the rental unit due to a reduction or discontinuance in services or facilities provided in respect of the rental unit or the residential complex. 2006, c. 17, s. 130 (1).
(2) A former tenant of a rental unit may apply under this section as a tenant of the rental unit if the person was affected by the discontinuance or reduction of the services or facilities while the person was a tenant of the rental unit. 2006, c. 17, s. 130 (2).
(3) The Board shall make findings in accordance with the prescribed rules and may order,
(a) that the rent charged be reduced by a specified amount;
(b) that there be a rebate to the tenant of any rent found to have been unlawfully collected by the landlord;
(c) that the rent charged be reduced by a specified amount for a specified period if there has been a temporary reduction in a service. 2006, c. 17, s. 130 (3).
(4) An order under this section reducing rent takes effect on the day that the discontinuance or reduction first occurred. 2006, c. 17, s. 130 (4).
(5) No application may be made under this section more than one year after a reduction or discontinuance in a service or facility. 2006, c. 17, s. 130 (5).
9. Due to the overlap between many of the Landlord and Tenant Board Forms, many applicants, like the tenants in their application, attach the same pleadings to their application. In this case, the tenants filed a T2 and a T6 sought damages as a result of the loss of enjoyment of the basement and the failure by the landlord to provide a basement suitable for use by the tenant…….in other words….....a basement that complied with health, safety, housing and maintenance standards.
10. Section 22 of the RTA relates to the T2 and states,
A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.
11. Section 20(1) of the RTA relates to the T6 and states,
A landlord is responsible for providing and maintaining a residential complex, including the rental units, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
12. The tenants submit that contrary to the determinations of the Member at the hearing, the T2 and T6 rather than the T3 directly relate their application since the RTA specifically refers to the landlord`s maintenance obligations as “providing and maintaining”. The fact situation of the tenants’ application relates to the T6 issue of “providing” since the landlord failed to provide a finished basement. Further to this, the fact situation also relates to the issue of the T2, loss of enjoyment, since the tenants were not able to enjoy the use of a finished basement.
13. In contrast, the Member erred in her interpretation of the facts situation contained in the tenants’ application by determining that the tenants’ issues related to a T3 application. The tenants submit that there was no reduction or discontinuance of a facility since the basement was unfinished prior to the commencement of the tenancy and remained unfinished during the course of their tenancy. Further to this, the tenants’ submit that the Member’s error may have been acerbated by her refusal to hear the tenant`s evidence and submissions.
14. Notwithstanding the fact that Members are not bound by the decisions of fellow Members, the tenants’ submit that the Board must endeavor to maintain some consistency in the interpretation of sections of the RTA. In a similar fact situation on TET-18703-11, Member Louis Bourgon determined that a T3 application was not the appropriate procedure to deal with an application where the landlord failed to provide a service or facility prior to the commencement of a tenancy. In her decision at paragraph 11, the Member states,
An application to this Board made under section 130 of the Act is commonly known as a T3 application. However, the evidence before me is that the cable services and laundry facilities were never provided to the Tenant at anytime during the tenancy. Therefore, the services in question cannot be said to be have been reduced or discontinued, they were simply never provided to the Tenant. In the circumstances, I believe that the Tenant has appropriately characterized her concerns as substantial interference with reasonable enjoyment (T2 application) since the Tenant paid rent and received less than was contracted between the parties.
15. Similarly in TSL-58559-14, Member Debbie Mosaheb determined that a loss of a service or facility is not solely within the jurisdiction of a T3 application and a tenant can seek an abatement rather than a reduction in their rent on the basis of a T6 Maintenance application. At paragraph 9 and 10 of her order, the Member states,
9. At the hearing, the Tenant was not seeking a reduction in rent. Rather, the Tenant sought an abatement of rent because of maintenance issue. What this means is that I have considered the Tenant’s issue as it relates to a tenant filing a T6 Maintenance application and not a T3 – Reduction in Rent application.
10. Based on the evidence before me, I find that the Landlord has failed to meet the Landlord's obligations under subsection 20(1) of the Act as the pool was in disrepair.
16. In TET-64613-15, Member Jim McMaster found that the T2 was sufficient to deal with the issue of the loss of use of the balcony by the tenants and dismissed the tenants T3 application that was filed for this purpose.
17. In TET-59931-15-RV, Member Ruth Cary found that a T2 application was the proper procedure to deal with the loss of use of part of a rental unit, she states at paragraph 27 that,
But certainly, the Landlords breached s. 22 of the Act by stopping or decreasing the Tenant’s laundry access. I say this because if a tenant is entitled to access laundry facilities and that access is arbitrarily taken away or substantially decreased that is a substantial interference with the tenant’s reasonable enjoyment.
18. It is respectfully submitted that in light of the foregoing submissions herein, the review should be granted and the tenants should be given an opportunity to properly participate in the proceedings by giving evidence and making submissions on their applications.