Disrupting Air Conditioning: a Landlord Interfering With Air Conditioning Amenities

15.  On or about July 3, 2016 the Tenant gave the Landlord her rent cheque for July and included in the envelope general information from the Board about the annual rent increase guideline.  The Landlord says when he saw the information about 90 days’ notice being required, he said okay let’s make it October 1, 2016.  The Tenant replied that the increase had to be in the proper form.

16.  After that the Landlord texted the Tenant again saying he would be applying to the Board for the increase.  This text seems to have been an idle threat as an application for an above guideline rent increase is only available to a landlord who does eligible capital work, or where there has been an extraordinary increase in municipal taxes, utility charges, or operating costs related to security.

17.  Then on July 19, 2016, the Landlord sent the Tenant a text saying he needed his air conditioner back.

18.  The lease agreement between the parties says that central air conditioning is not included or provided.

19.  According to the Landlord he had installed for the Tenant an air conditioning unit every summer that belonged to him personally.  He further says that in the summer of 2016 he received a panicked call from the mother of his child.  She had moved into a new unit that did not have air conditioning and really needed one.  So the Landlord told the Tenant he needed his air conditioner back.

20.  The Tenant responded by text asking the Landlord if he was trying to force her to leave by taking away services.  He responded by saying no, air conditioning is not in the lease, so he is sure what he is doing is okay.

21.  The Tenant then immediately asked the Landlord to fix the windows so they opened properly and had screens.  The Landlord texted back in response to this request saying “Is that in the lease?”

22.  The Landlord then went over to the rental unit and removed the air conditioner.  He says one or more of the Tenant’s sons was at home and let him in.

23.  The Tenant says that it was unbearably hot after that so the purchased her own air conditioner by the end of July, 2016.  She took it with her when she moved out.

24.  Based on all of the evidence before me I am satisfied that the Landlord should not have removed the air conditioner and if he needed it as he says then he should have provided an alternative one to the Tenant.  I say this for a number of reasons.

25.  First, the lease agreement says the Landlord will not provide “central” air conditioning.  The air conditioning unit the Landlord initially provided to the Tenant was not central air conditioning.  The Landlord stated in his testimony that the heating system was not forced air but radiant heat, and one of the text messages between the parties refers to it being installed in a window.  So I am satisfied it was a portable unit designed to be installed in a window.  That is not the same thing as central air conditioning.

26.  Second, just because a written lease agreement is silent on whether or not a particular service is provided, does not end the inquiry.  This is because subsection 202(1) says:

In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a)  may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b)  may have regard to the pattern of activities relating to the residential complex or the rental unit.

27.  This provision explicitly requires the Board to determine what the real agreement was between the parties and in doing so permits it to disregard the lease terms and look to the actual pattern of activity relating to the tenancy.

28.  Here, there are numerous texts between the parties indicating that the Landlord provided the Tenant with an air conditioner from the first heating season.  She routinely contacted him to ask him to install it in a window or remove it when the time came and he readily agreed.

29.  So the lease agreement does not actually support the conclusion that the portable air conditioning unit was not part of the tenancy agreement, and the pattern of activity indicates the parties agreed that air conditioning was an included service.

30.  Section 125 of the Act creates a mechanism whereby landlords and tenants can agree that a service will no longer be provided, and if they do agree the mechanism for calculating the corresponding rent decrease is set out in Ontario Regulation 516/06.

31.  Here, there was certainly no agreement so the Landlord should not have removed the air conditioner.  If he needed to do so for some sort of family emergency, then he should have replaced it.

32.  The Tenant’s application relies on sections 22 and 23 of the Act which read as follows:

22.  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.

23.  A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.

33.  Given the evidence before the Board I am satisfied that the Landlord’s behaviour in removing the air conditioner and failing to replace it constitutes a breach of both sections 22 and 23.

34.  The text messages between the parties clearly show how irritated the Landlord was when the Tenant insisted on proper notice of the rent increase.  He threatened to go to the Board to obtain an illegal increase; he made sarcastic remarks like “is that in the lease” when the Tenant asked for the windows to be repaired so she could open them to get air in the house; and he removed the air conditioner immediately without giving proper notice and when the Tenant was not at home.  Absent corroborating evidence from the mother of the Landlord’s child, the evidence supports the conclusion that the Landlord was sufficiently irritated with the Tenant’s behaviour that he thought it was appropriate to punish her by removing the air conditioner and not replacing it.

35.  Harassment is not defined in the Act but is generally considered to be a course of conduct that a reasonable person ought to know would be unwelcome.  I am satisfied that the reasonable landlord ought to know that this behaviour on the part of the Landlord would be unwelcome to any reasonable tenant.  It was the middle of the summer, the height of the air conditioning season.

36.  Further, because the Tenant’s household was uncomfortably warm she was forced to go to the expense of purchasing her own air conditioner and installing it herself.  In other words, removing the air conditioner substantially interfered with the Tenant’s reasonable enjoyment of the rental unit.