Removing Heating and Cooling Controls: a Landlord Interfering With HVAC Controls and Disrupting Heat

13.  The issue that arises with respect to this part of the Tenants’ application is because of the wording of subsection 21(1).  The use of words like “deliberately interfere” and “withhold” in this section indicate it is not intended to address situations of disrepair.  Rather it is intended to deal with incidents where a landlord is either wilfully or negligently interrupting the supply of a vital service, usually for some improper or unreasonable purpose.

14.  Here, the evidence supports the conclusion that the interruptions in vital services that the Tenants complain of were mostly as a result of disrepair or work being done in the basement unit.  For example, the electricity cut offs appear to have been related to the renovations in the basement below; the loss of hot water in the kitchen was caused by a frozen pipe.  As a result, these kinds of issues are discussed below in the context of allegations of substantial interference with reasonable enjoyment and disrepair.

15.  The only factual evidence the Tenants offer that fits within what this provision is intended to address is with respect to the Landlord’s decision to move the thermostat from the rental unit to the renovated basement unit below.  I say this because that was a deliberate act based on an intentional decision on the part of the Landlord relevant to a vital service and I am satisfied it was unreasonable.  I say this based on the evidence and reasons set out below.

16.  The second-named Tenant above says that when the Tenants viewed the rental unit the thermostat control for their half of the residential complex was physically inside the rental unit.  He says the Tenants commented to the Landlord about it because this was a desirable feature for them; having a newborn baby meant controlling the temperature was important to them.

17.  The Landlord says this is not true.  He says that after the Tenants viewed the rental unit but before the tenancy started, the thermostat control was actually moved from the basement to the Tenants’ unit.  It was then returned to the basement after the renovations were complete.  He says this was done on December 15, 2013 on the recommendation of the furnace technician.  According to the Landlord thermostat controls should be placed in the coldest area of a residential complex.

18.  With respect to this issue I accept the Tenants’ evidence over that of the Landlord.  I say this primarily for three reasons.

19.  First, on December 11, 2013, the Landlord served notice to terminate on the Tenants alleging substantial interference with reasonable enjoyment or a lawful, right, privilege or interest.  This notice was served four days prior to the thermostat being removed and reflects the Landlord’s views and feelings about the heating dispute at the relevant time.  It says in part:

The tenants has put the heating of the house so high at up to 80 degree Fahrenheit, and the basement was heated up unbearably high.  Landlord notify repeatedly to the tenants to scale back to normal temperature and close all their windows.  They never did in a consistent basis.  Landlord even closed (only two) heating vents in the basement and open the exhaust vent to get some cool air in the basement that led to a frozen water pipe due to severe cold wind that day.

20.  I think it is fair to say that this notice reflects the Landlord’s frustration with the Tenants’ insistence on their right to heat the rental unit to a temperature greater than 21 degrees Centigrade.  The Tenants had correctly pointed out to the Landlord that the legal requirement was that the heat be a minimum of 20 degrees – there is no requirement it be fixed at that temperature and go no higher.

21.  Second, the parties exchanged a number of e-mails about the heat and the windows.  In none of them does the Landlord say anything about the thermostat belonging in the basement.  However, he does say in e-mails dated November 15, 2013, that the temperature in the basement was 73 or 74 degrees Fahrenheit and he expresses concern that the future basement tenant have the proper temperature which he believes legally is supposed to be 21 degrees Centigrade or 70 degrees Fahrenheit.  If the Landlord was planning to return the thermostat to its alleged original location in the basement then one would think he would mention that in at least one of the e-mails where the parties discuss the heating problem.

22.  Third, based on my experience of multiple other cases before the Board I believe it is appropriate for me to take judicial notice of the fact that it is not the case that thermostat controls should be placed in the coldest area of a residential complex.  I find it not credible that a furnace technician would say such a thing to the Landlord.  Generally speaking thermostats should be placed on the first floor of a house on an interior wall in the middle of the home and away from any heat, airflow or light sources.  So one would expect the thermostat in this case to be in the Tenants’ unit.

23.  As a result of all of the above I find that the Landlord deliberately interfered with the heat supply to the rental unit contrary to s. 21(1) by moving the thermostat from the Tenants’ rental unit to the basement unit thereby depriving them of the ability to control the temperature in the rental unit.

24.  With respect to remedy, the Tenant’s application and amended application request: abatement of the rent; a cease and desist order; an administrative fine; increased rent differential; moving expenses; and unspecified compensation.

25.  With respect to the request for a cease and desist order, as the Tenants have moved out that remedy is now moot.  They did not articulate a claim for compensation so that request is also denied.

26.  Pursuant to s. 31(2) of the Act, if the Board determines that the Tenants were induced by the conduct of the Landlord to vacate the rental unit, the Board may order rent differential and moving costs.

27.  Here, the Tenants’ original application was filed with the Board on December 12, 2013, and it requested moving costs and rent differential at that time because “we anticipate having to move to another house”.  As the thermostat was not removed from the unit until December 15, 2013, this means the decision to move out of the rental unit was made prior to the Landlord’s breach of s. 21(1).  As a result, it cannot be said that moving the thermostat induced the Tenants to move out of the rental unit.  So the Tenants are not entitled to rent differential or moving costs with respect to the Landlord’s breach of s. 21(1).

28.  The normal remedy on applications such as this is abatement of the rent.  Abatement reflects the idea that if a tenant is paying rent for a bundle of goods and services and not receiving everything being paid for, then the rent should be abated in an amount that is proportional to the difference in value between what is being paid for and what is being received.  Here, the Tenant’s rent included the right to control the thermostat and that was taken away from them, so I believe they are entitled to abatement of the rent for the period December 15, 2013 to January 31, 2014, which is when they moved out.

29.  In terms of quantum of abatement, in circumstances like these one of the factors the Board considers is the evidence of the impact on the Tenants of the Landlord’s breach.

30.  For some of the relevant period, it would appear the breach had little impact on the Tenants.  For example, there is an e-mail dated December 19, 2013, in the materials filed by the Tenants addressed to the Landlord that says in part: “The heat has been working fine lately…”

31.  However, the second-named Tenant above says that after the thermostat was removed the Tenants had to call the Landlord every time there was a heating issue and wait for him to come.  It became burdensome and the Tenants felt powerless.  This statement is corroborated by other evidence.

32.  For example, there is an e-mail from the Tenants dated December 24, 2013, that says the temperature in the kitchen is currently 64 ° Fahrenheit and they have closed the chimney flue so could the Landlord turn up the heat?

33.  Not long after that e-mail was sent the Landlord arrived at the residential complex with the heating technician.  He and the technician went to the door of the Tenants’ neighbour and sought entry to that unit first.  Some sort of altercation occurred between the Landlord and the neighbours that the first-named Tenant describes as violent and frightening.  The Landlord denies that he was violent or even yelling at the neighbour; he says he called the police.

34.  When the Landlord then came immediately after that to the Tenants’ door the first-named Tenant lied and said the heat was fine.  The Landlord then sent an e-mail in response to the Tenant’s complaint of lack of heat accusing them of making a “baseless” accusation of lack of heat.  The first-named Tenant above wrote back:

I did not let you in on the account that I witnessed you banging on the door and harassing and yelling at our neighbour with the heating technicians…I do NOT feel safe with you in the apartment when I am alone with my child.

It was indeed below 70f in our apartment last night, I expressed my concerns to you about the kitchen and drafty cupboards yesterday …you ignored me and walked away without addressing my concern…

Please keep the temperature at a reasonable level, that is all I ask.

35.  There is some indication in the evidence that on December 23, 2013, the first-named Tenant above called the City about lack of heat.  In an e-mail dated January 7, 2014, the Landlord accuses the Tenants of calling the City to try and “make some record against me”.

36.  On January 8, 2014, the Tenants sent an e-mail saying the temperature was around 67° asking it be turned up.  The Landlord replied saying he would look at it; there might be a frozen pipe.

37.  On January 29, 2014, the Tenants called the Landlord to complain about lack of heat again.  The Landlord wrote an e-mail saying in part that the furnace does not work properly when there is ice build up on the exhaust pipe resulting in a lower temperature output.  His e-mail says “all furnaces work that way” and “you still have 67 / 68 [degrees]” and concludes:

I know you want use Very dramatic word like “freezing” etc For your own benefit.  Usually it clear by itself or some one has to clear it.  Things will get back to normal.  Not end of world.

38.  The Tenants replied to this e-mail shortly afterwards saying in part:

… you don’t seem to take your responsibilities as a Landlord seriously.  I, however, take it very seriously when my 7 month old wakes up with freezing cold hands and feet because the furnace isn’t working once again.  I take it seriously when there is an ongoing heating issue which you constantly brush off as “not the end of the world”.  You even acknowledge that the current temperature is below the legal requirement, but that we shouldn’t worry about it… I emailed and phoned you before 8 am about the temperature being 60 degrees Fahrenheit, 8 degrees below the minimum, and yet you did not get back to me until 11, and even then your response was “I think it’s working now”, even though something was obviously not.

39.  After that the Tenants called the City again about the lack of heat.  The next day the Landlord sent another e-mail to the Tenants.  In it he talks about measuring the temperature in the unit that day and finding it to be 73°.  In the e-mail he accuses them of calling the City as “a last minute attempt to incriminate me before you go, to make record on me, since all previous attempts … failed to do so.”

40.  Both Tenants wrote back protesting they called the City the previous day because it was only 68° and the Landlord acknowledged it and did nothing.  In reply, the Landlord said he had responded the previous day, been to the residential complex, and cleared the pipe and checked the furnace.  In that particular e-mail he essentially accuses them of not understanding English.

41.   What these e-mails establish is that the removal of the thermostat from the rental unit exacerbated and heightened the conflict between the parties over the issue of the heat; the fact the Tenants were no longer able to adjust the heat themselves meant they had to deal directly with the Landlord to make adjustments to it and that led to additional aggravation, e-mail exchanges, and bitterness.

42.   Neither party made a reasoned argument before me as to what the quantum of abatement should be in these circumstances.  Considering all of the above, and given my knowledge of previous like cases before the Board, I believe a reasonable abatement of the rent for the Landlord’s removal of the thermostat would be about 25% of the rent charged or $543.75.

43.  With respect to a request for an administrative fine, 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.  A fine is not normally imposed unless a landlord has shown blatant disregard for the Act and other remedies will not provide adequate deterrence and compliance.

44.  In these circumstances, I believe a fine is warranted.  Moving the thermostat showed a blatant disregard for the Tenants’ rights under the Act and the abatement awarded is not so large as to ensure the Landlord will not behave in a similar fashion in the future.  Taking into account the principle that the fine should be commensurate with the breach the nature and severity of it, I believe a reasonable amount for an administrative fine would be $500.00.  An order will issue accordingly.