Does a Tenant Deserve Rent Abatement Compensation For Harassment By the Landlord Despite the Tenant Returning Similar Harassment?
In Circumstances Where a Landlord Harassed a Tenant and the Tenant Responded By Harassing the Landlord the Retaliatory Conduct May Result In a Loss of Abatement Compensation.
A Helpful Guide For How to Predict What Will Result When a Landlord and Tenant Engage In Mutually Harassing Conduct
Both a landlord and tenant are forbidden from engaging in conduct that is harassing of one or ther other. Where a tenant harasses a landlord, the tenant may be evicted. Where a landlord harasses a tenant, the tenant may receive compensation. Where both harass each other, remedies may be nullified.
As per prescribed mandates within the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, a landlord is forbidden from harassing a tenant and a tenant is forbidden from harassing a landlord. Specifically, the Residential Tenancies Act, 2006 states:
As is clear, the law forbids both harassment of a tenant by a landlord as well as harassment of a landlord by a tenant; however, the Residential Tenancies Act, 2006, lacks a specific section addressing the issue of mutual harassment; and accordingly, a review of actual case decisions of the Landlord Tenant Board is required to find a potential answer to the question of what may happen when a landlord and tenant mutually harass each other. In this regard, the case of R.T. v. W.M., TET-00168-19 (Re), 2020 CanLII 61356 wherein it was said:
5. The Tenant’s claim of harassment, obstruction, coercion, threats and interference include the following behaviours of the Landlord:
• Harassed for late fee;
• Discriminated based on disability;
• Accused of being a drug addict;
• Calls her names like stupid, dumb and idiot;
• Threatened with placing Tenant’s name on a do not rent list; and
• Continues to text Tenant after Tenant tells her to stop.
6. Both parties agree that the Landlord asked for a late fee of $20.00 when the Tenant did not pay her rent on time. The Landlord’s explanation, at first, was that it was in the lease agreement and the Tenant initialled that section of the agreement.
7. As I explained at the hearing, a fee such as this is considered an illegal charge (see s.134) and a tenant cannot waive their rights under the Residential Tenancies Act, 2006 (the 'Act') just by signing a lease agreement.
8. The Landlord says that she misconstrued the Act thinking the $20.00 administrative fee allowed for a cheque that goes NSF was the same thing. Whether this is the case or not, it is the responsibility of the Landlord to understand the Act and adhere to it. Furthermore, the Tenant texted the Landlord stating it was an illegal charge on January 14, 2019 yet the Landlord continued to ask for the late fee after that.
Discrimination Against Disability
9. The Tenant claims that the Landlord discriminated against her by texting “no life I see, you should go work”. This text was sent by the Landlord on January 11, 2019. The Tenant is on Ontario Disability Support Program (‘ODSP’) and the Landlord knows this.
10. The Landlord argues that she thought the Tenant had a job even though she was collecting ODSP.
11. It is clear the comment is unwanted and inappropriate for the Landlord to say, whether the Landlord believes the Tenant had a job or not.
Accusation of Drug Addict and Called Names
12. The Tenant’s text message evidence shows the Landlord’s text on February 1, 2019 accusing the Tenant of doing drugs. The text prior to this was from the Tenant telling the Landlord to “stop drinking”.
13. In other text messages the Landlord calls the Tenant a “stupid idiot” and “crazy” among other comments. It must be noted that there are text messages from the Tenant to the Landlord calling her a “slumlord” and “dumb bitch”.
Do Not Rent List and Told to Stop Texting
14. The Tenant claims the Landlord threatened her with putting her name on a do not rent list. I did not see this text.
15. Also, according to the Tenant she told the Landlord to stop sending text messages and the Landlord continued. After viewing the evidence it is clear that both parties told the other to stop texting or said they would block the other yet both continued to communicate through text. Based on the long messages and the venomous arguments they were having, both parties were feeding off of each other. Neither took the high road and stopped the fighting. The behaviour of both parties is ridiculous.
16. Given all of the above, I find the Landlord harassed the Tenant regarding the late fee as she ought to have known that it was an illegal charge, was told it was an illegal charge, and yet continued to tell the Tenant she needed to pay the money. I also find the comment regarding the Tenant working to be harassing as the Landlord ought to have known it was unwanted and inappropriate.
17. The Tenant’s application solely seeks an abatement of rent for the full tenancy. I find this to be an unreasonable amount due to the issues at hand. Based on my knowledge of similar cases and the merits of this application, I find a flat amount of $300.00 to be more appropriate as a percentage would not be adequate.
18. As for the other claims in the Tenant’s application, I find that the Landlord’s behaviour was tasteless and harassing. That being said I also find the Tenant’s behaviour to be just as improper and harassing. The Tenant fed into and in some cases provoked the Landlord with her texts. I find awarding any remedy for these issues would be rewarding the unacceptable behaviour of the Tenant. For this reason, these claims are denied.
The Residential Tenancies Act, 2006 contains provisions that forbid a landlord from harassing a tenant and forbid a tenant from harassing a landlord; however, the Residential Tenancies Act, 2006, is without a direct provision regarding mutually harassing conduct; however, case law from the Landlord Tenant Board shows that where a landlord and tenant engage in similar mutually harassing conduct, the right to obtain relief due to the harassment by the other party may be lost.