Selected Decisions (Jan. 31, 2007 to July 31,2008)

Below you will find summaries of the Board’s Selected Decisions.  To view the full-text of a decision click on the "full-text” link. 

The full-text versions of the Selected Decisions are posted in the language in which they were issued.  Most of the Board’s hearings are held in English so the majority of the Board’s decisions are issued in English only. However, if a bilingual hearing is held, the Board issues the decision in both English and French.

To satisfy the requirements of the Freedom of Information and Protection of Privacy Act, the names of parties and witnesses and the address of the rental unit have been removed.

Note: The Board disclaims responsibility for the accuracy of the summaries of the Selected Decisions and for any consequences resulting from a person relying on the Selected Decisions provided by the Board. 

PDF Printer-friendly version of Summaries

 

CEL-02248                                                                                                    02/10/2007

– s.49 (3), notice, purchaser personally requires unit – period of notice.

The Landlord, a mortgagee in possession, applied for an order terminating the tenancy and evicting the Tenant because the Landlord had entered into an agreement of purchase and sale of the rental unit and the purchaser required possession of the unit for the purpose of residential occupation.

The Landlord used the Board approved form of Notice to terminate the tenancy, however that form did not contain specific reference to the fact that, if the Tenant vacated the rental unit by the termination date, the tenancy would end on that date.  The form in question has since been replaced by the Board. The Member found that the old form of notice substantially complied with section 43 of the RTA because it:

  1. effectively informed the Tenant that, if the Tenant vacated the rental unit in accordance with the Notice, the tenancy terminated on the date on which it was to terminate; and 

  2. informed the Tenant that, if the Landlord applied for an order from the Board, the Tenant was entitled to dispute the application.

The Notice to terminate the tenancy, which was served on April 30, 2007, specified a termination date of June 30, 2007. The Tenants submitted that they had a valid written lease providing for a one-year fixed tenancy for the period of December 1, 2006 up to and including December 1, 2007.  The Landlord submitted that the written tenancy agreement was fraudulently entered into and should be ignored, resulting in a monthly tenancy.

The Member considered the conflict between subsection 53 (4) of the Mortgages Act (termination date to be sixty days from date the Notice is served regardless of a fixed term tenancy agreement) and subsection 49 (3) of the RTA.  The Member found that pursuant to subsection 3 (4) of the RTA, the RTA prevails. Accordingly, there was a fixed term tenancy and, because the termination date on the Notice was not at the end of the term, the Notice was void.  full-text (eng)

 

CEL-03686                                                                                                   04/10/2007

– s. 61 – illegal act, s. 66, impairs safety – adjournment request by Landlord following Landlord’s evidence – prejudice – adjournment denied – Landlord’s request to call reply evidence – request denied.

The Landlord called two witnesses in its case in chief, one of whom was a police officer.  The Landlord then sought an adjournment to permit it to call two other police officers whose existence was known to the Landlord but who had not been previously summonsed.  The Tenant opposed the request and the Member found that, in weighing the prejudice between the parties, the fact that the Tenant was prepared to proceed, and that the Tenant’s witnesses may be leaving the country, an adjournment was not warranted.

The alleged illegal act was the purported abandonment of young children by the Tenant.  The Member found that the onus to prove the illegal act was on the Landlord, and, while the degree of proof did not rise to the level required in a criminal case (beyond a reasonable doubt), the evidence had to be on a basis higher than on a balance of probabilities.

At the end of the Tenant’s case, the Landlord sought to call reply evidence to challenge the credibility of the Tenant’s witness.  The Landlord said that he could not have anticipated the Tenant’s evidence and required the attendance of the two unsummonsed police officers for the purposes of reply.  The Member refused the Landlord’s request and found that the requirements of natural justice and the need for a fair and expeditious hearing meant that the Landlord could and should have called the officers as part of the Landlord’s case in chief.
full-text (eng)

 

CEL-51295-RV                                                                                              25/07/2007

– s. 61 (Tenant Protection Act) arrears – s. 207 (1) Landlord application for eviction only in case of arrears of rent in excess of $10,000– jurisdiction of the Board 

The Landlord claimed the Tenant was in arrears of rent in excess of $33,000.  The Landlord wanted an order only for eviction and a declaration respecting the arrears at the Board.  The Landlord submitted that the Board could permit him to “split” his case.

The Member dismissed the Landlord’s application for eviction only on a “without prejudice” basis, and, in so doing, held that the Court retains all of the Board’s remedial powers in cases involving disputes above the Board’s monetary limits.  The Landlord’s option was to either proceed at the Board and waive any amounts over $10,000, or, proceed in a court of competent jurisdiction for all the relief the Landlord sought.  full-text (eng)

 

CEL-07769-RV                                                                                           05/03/2008

– s. 59 - arrears of rent – Bankruptcy and Insolvency Act – consumer proposal
 – deemed default in making payments – effect of deemed default
s. 66.31(1) and 66.32 (2)

The Landlord had filed an application seeking payment by the Tenant of arrears of rent.  The Tenant had filed a Consumer Proposal pursuant to the provisions of the Bankruptcy and Insolvency Act (the “BIA”) and had listed the Landlord as an unsecured creditor.  At the Board’s hearing of the Landlord’s application, the Landlord contended that the Board had jurisdiction to proceed with the application.  The Landlord filed certain documents with the Board relating to the default of the Tenant in making payments in accordance with the Consumer Proposal.

Pursuant to the applicable provisions of the BIA, the failure of the Tenant to make the payments required of the Tenant under the Consumer Proposal resulted in a deemed annulment of the Consumer Proposal.  The Board found that, in accordance with subsection 66.32 (2) of the BIA, the Landlord’s claim for arrears of rent was revived and the Board had jurisdiction to proceed with the hearing and make the order the Landlord sought.  full-text (eng)


CET-00058                                                                                                  30/04/2007

- s. 5(a), exemption (Innkeepers Act) - s. 29(1)5, illegal lock out 
- s. 30, compensation

The Landlord operates a business renting out cottages to tourists on a short-term basis from June to September.  The Tenant rented a cottage starting in October with the intention of moving out the next summer or converting to a weekly rental.  In December the Landlord locked out the Tenant.

The Member determined that the Residential Tenancies Act, 2006 (the RTA) applies because the Tenant paid first and last month’s rent, she paid a separate amount for hydro, the Landlord did not provide maid or telephone service, the Tenant was required to put the gas in her own name, and she was not charged GST. 

The Member awarded the Tenant a rent abatement for part of the month in which she could not occupy the unit, compensation for lost food and belongings, and $1,500 for disruption to the Tenant’s enjoyment of the holiday season.  full-text (eng)


CET-01181                                                                                                    30/06/2008

– s. 25  – illegal entry by landlord -  s. 24 – changing locking system – entry by landlord occurring to permit change of  the locking system

The Landlord took possession of the rental unit by posting a notice on the Tenants’ door indicating that the rental unit had been “seized” for non-payment of rent and for the Landlord’s personal use.  The Landlord changed the locking system and did not give the Tenants replacement keys.  In order to change the locking system, the Landlord entered the rental unit.

The Member found that there was no evidence of an illegal entry by the Landlord separate and apart from the entry to change the locks.  The Member found that a finding under section 24 of the RTA (illegal changing of the locking system) encompasses the illegal entry for the purpose of changing that locking system and the Tenants were not entitled to any remedies based upon that illegal entry.

The Member imposed an administrative fine on the Landlord, ordered a rent abatement and also held that the Board does not have the jurisdiction to award punitive damages to the Tenants. full-text (eng)


EAT-00053                                                                                                     23/04/2007

- retroactivity - s. 242, transitional provision - s. 246, notice valid - TPA applying, RTA not applying - s. 135, money not collected or retained illegally

The Landlord gave a one year notice under s. 113 of the Tenant Protection Act (the TPA) with a termination date that fell after the RTA was in force.  The Landlord paid compensation of three months rent ($777) in accordance with TPA s. 55 when the notice was given.

A few months later, the Tenants applied for an order determining that the Landlord collected or retained money illegally.  The Tenants claimed they were entitled to compensation of $3,000 as required under s. 164 of the RTA.  Relying on s. 242 of the RTA, the Tenants argued that the Landlord should have applied while the TPA was in force to crystallize its right to pay the lower compensation under the TPA.  Relying on s. 246, the Tenants argued that the notice had a life of only two months after the RTA came into force, and since the Landlord had not applied within that time, the notice had expired.  The Landlord countered that the compensation is tied to the notice, not the application, and as notice was given under the TPA it should apply. 

The Member determined that the Landlord had given the notice and compensation when the TPA was in force, and therefore was not required to pay the amount of compensation specified in the RTA.  The Tenants’ application was dismissed. 
full-text (eng)


SOL-00776                                                                                                     12/04/2007

- s. 59(1), tenant did not pay the rent that the tenant owes (premature service)

The Landlord applied for an order terminating the tenancy and evicting the Tenant because the Tenant did not pay the rent that the Tenant owes. The N4 notice was served on the Tenant on February 1, 2007, and claimed February rent only.

The Member found that, notwithstanding s. 59 of the RTA (which states that if a tenant fails to pay the rent lawfully owing then the landlord can give the tenant a notice of termination of the tenancy), on February 1, 2007 the Tenant had not yet failed to pay the rent lawfully owing.  The Tenant had until midnight of February 1, 2007 to pay the rent. The N4 notice of termination was served prematurely on the Tenant. As a result, the Landlord chose to request withdrawal of the application.

The Landlord’s application was withdrawn, without prejudice.  full-text (eng)


SOL-00961-SA                                                                                              12/04/2007

- s. 77(1), tenants failed to meet a condition specified in a consent order
- s. 78(11)(c), make an order lifting the stay of the order on a future date

The Landlord applied for an order terminating the tenancy and evicting the Tenants, and also for an order to have the Tenants pay the rent and compensation they owed because the Tenants failed to meet a condition specified in a consent order. The Tenants failed to pay a specific amount on or before a specified date as required by the consent order. They now seek to have this order set aside. The Tenants explained that they had filed a T6 maintenance application and they fully expected to be awarded an abatement of rent which could or would offset some or all of the outstanding arrears.

At the hearing, the Tenants consented to the payment on a specified date. However, they opted to withhold that payment in anticipation of an award in the maintenance application despite the fact that this payment was ordered by the Board. The Tenants were left with no justifiable grounds on which to base their request for a motion to set aside the order.

The Tenants’ request for a motion to set aside the order was denied. The Member, at the request of the Tenants and with the consent of the Landlord, postponed the termination by delaying the lifting of the stay on the order for one week, pursuant to s. 78(11)(c) of the RTA.  full-text (eng)


SOL-01024-SA                                                                                             20/04/2007

- s. 78(11), set aside

The Tenant failed to make a payment specified in a mediated agreement and pursuant to s. 78 of the RTA, the Board issued an ex-parte order for termination of tenancy.  The Tenant subsequently filed a motion to set aside the ex-parte order.

The Member granted the Tenant’s motion to set aside the order pursuant to s. 78(11)(b), which provides that even where a mediated agreement has been breached, the Board may set aside an order issued under s. 78 “…if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6).”  
 
The Member found that, despite the Tenant’s breach of the mediated agreement, having considered the Tenant’s limited income, the fact that the Tenant’s rent is subsidized and the steps the Tenant had taken to rectify the situation, it was not unfair to set aside the order.

The Member ordered the Tenant to pay the arrears and the monthly rent by staged payments, failing which the Landlord could apply, pursuant to s. 78, for an order terminating the tenancy.  full-text (eng)


SOL-01316                                                                                                  27/04/2007

- s. 82, disallowed - s. 83, relief from eviction

The Landlord applied for an order to terminate the tenancy and evict the Tenants because they did not pay the rent that the Tenants owe.  At the hearing, the Tenants raised maintenance issues pursuant to s. 82 of the RTA and sought an abatement of rent on this basis.

The Member found that the Tenants had failed to inform the Landlord of some issues and had not cooperated with the Landlord’s efforts to resolve other issues.  Further, where the Tenants had properly informed the Landlord of maintenance issues, the Member found that the Landlord responded in a timely manner to address the issues.  Therefore, it was determined that the Landlord did not breach his maintenance obligations pursuant to s. 20 of the RTA and the Tenants’ request for an abatement of rent was denied.  The Member addressed the issue of relief from eviction pursuant to s. 83 of the RTA and determined that as the Tenants were in the process of vacating the unit, it was not necessary to grant relief.

The Member granted the Landlord’s request for termination of the tenancy and ordered the arrears as claimed in the application.  full-text (eng)


SOL-01458AM                                                                                             19/06/2007

- s. 27, entry by landlord with notice - s.83, relief from eviction

The Landlord applied for an order to terminate the tenancy and evict the Tenants because they substantially interfered with the lawful right of the Landlord. The Tenants admitted they denied the Landlord and his spouse entry into the rental unit for the purpose of inspecting earlier repairs despite the service of a proper written notice of entry. The Tenant claimed that only the Landlord has the right to enter and there is no corresponding right to bring a friend along. 

The Member was satisfied it was reasonable for the Landlord to bring his spouse along because she previously made repairs to the unit, and at times acted as agent for the Landlord. The Member was satisfied the Tenant substantially interfered with the Landlord’s lawful right when he denied entry into the rental unit on two occasions. However, pursuant to s. 83 of the RTA, the order provides that the tenancy is not terminated conditional upon the Tenants allowing the Landlord entry in compliance with s. 27 of the Act. If the Tenants fail to allow entry to the Landlord and his agent, the Landlord may apply to the Board for an order to terminate the tenancy under s. 78 of the RTA.  full-text (eng)


SOL-01897                                                                                                  28/05/2007

- s.49, purchaser’s own use - purchaser not credible - denial of adjournment request

The Landlord applied to terminate the tenancy on behalf of a purchaser who personally requires the unit.

At the beginning of the hearing, the Tenant requested an adjournment to review the Agreement of Purchase and Sale (APS) which the Landlord failed to provide the Tenant prior to the hearing. The Tenant also wanted to examine the Landlord who, absent from the hearing, was represented by an agent. The Member denied the request because the Tenant could have summonsed the Landlord himself. The Member held the hearing down for an hour to allow the Tenant to review the APS.

The Member denied the Landlord’s application based on the following:

  1. The Landlord failed to establish that the purchaser entered into an agreement of purchase and sale with the Landlord as required by s. 49 of the RTA. By the time of the hearing, the purchaser had not signed an APS for the unit.

  2. The Landlord failed to establish the purchaser’s “good faith” in requiring the unit for his personal use, as required by s. 49 of the RTA. Specifically, the Member did not find it credible that the purchaser and his new wife would have purchased a unit that they had not seen prior to the purchase and that they would have occupied it given its very poor state of repair. As well, the purchaser was unconvincing in his testimony, merely giving “yes” or “no” answers to the leading questions of the Landlord’s agent in direct examination.  full-text (eng)

SOL-01945                                                                                                07/06/2007

- s.69, arrears - s.62, damage to unit - res judicata - s.83, relief from eviction

The Landlord applied to terminate the tenancy because the Tenant did not pay the rent that the Tenant owes for March, April and May 2007 and because the Tenant wilfully or negligently caused undue damage by spreading top soil next to the house which prevents run-off water from flowing away from the house.

The Tenant claimed that she paid her rent for these months by leaving money orders in the Landlord’s mailbox. The Member did not find it credible that: the Tenant did not, by the time of the hearing, determine through the bank whether the money orders had been cashed and that; the Tenant felt comfortable leaving the rent for May 2007 in the Landlord’s unlocked mailbox after becoming aware of the Landlord’s claim of not receiving the rent for March and April 2007.

The Member exercised her discretion under s. 83(2) of the RTA to delay eviction by three weeks because the Tenant is a recipient of social assistance benefits.

With respect to the damage claim, the Member determined that this matter had been adjudicated upon at a prior hearing. The Landlord attempted to distinguish the present application because at the prior hearing, the full extent of the damage had yet to be known. The Member relied on the principle of res judicata to deny the damage claim. While the Landlord may have pre-maturely raised the issue in the prior proceeding, having done so, he cannot be allowed “another kick at the can” in the present application.  full-text (eng) 

 

SOL-02104                                                                                             11/06/2007

– s. 59 arrears – work done by Tenant and loans and advances to Tenant
– s. 2 (1) elements constituting “rent”

The Landlord applied for an order terminating the tenancy because the Tenant did not pay the rent owing.

During the tenancy, the Landlord had hired the Tenant to do maintenance work and drywalling at the residential complex and had advanced money to the Tenant for the purchase by the Tenant of tools and other supplies.

The Landlord argued that the Tenant’s work should be viewed independently from the tenancy agreement and that the “loans and advances” from the Landlord to the Tenant should be considered as arrears of rent.

The Member found that the work became an integral part of the tenancy agreement and that the definition of “rent” in the RTA permitted the Board to determine that the work was consideration paid by the tenant.  The Member also found that the “loans and advances” did not meet the definition of “rent” in the RTA, and therefore, could not be used in the computation of the arrears of rent.  full-text (eng)


SOL-03369                                                                                               09/07/2007

- s. 59 arrears – s. 82 Tenant issues – denial of request for adjournment
to permit the Tenants to raise section 82 issues for the first time.

The Landlord applied for an order terminating the tenancy because of the non-payment of rent.  The Tenants, while not requesting relief from eviction under section 83 of the RTA, advised the Member that they were waiting for legal advice from a lawyer as to whether they should raise an issue as permitted by section 82 of the RTA.  The Tenants requested a two-part order from the Board, namely:

  1. permitting payment of the arrears into the Board; and

  2. permitting an adjournment of the hearing to allow the Tenants to determine whether they wished to raise section 82 issues.

The Member refused the adjournment and noted that section 82 of the RTA is drafted in the present tense and provides that at “a hearing of an application by a landlord…for an order terminating a tenancy [based on arrears of rent], the Board shall permit the tenant to raise any issue that could be the subject of an application made by the tenant”.  In this case, the Member found that the Tenants did not want to raise an issue at the hearing, but, wanted time to decide whether to raise an issue on the resumption of an adjourned hearing.  full-text (eng)

 

SOL-12512                                                                                                  23/06/2008

– s. 59 – non-payment of rent – law of agency – superintendent having apparent authority to bind the landlord

In the Board’s proceedings, the Tenant disputed the amount of monthly rent being claimed by the Landlord.  The Tenant had received a notice that raised the rent to $846.00 per month. The superintendent of the residential complex, however, advised the Tenant that the Tenant was required to pay only the rent in effect prior to the increase, that is, $825.00 per month.  The Landlord gave another rent increase notice raising the rent to $867.00 and the Tenant paid $846.00 per month following that notice.

The Member found that the Tenant reasonably relied upon the superintendent’s apparent authority as an agent for the Landlord to bind the Landlord and to permit the Tenant to pay the lower rent of $825.00 for the year 2007-08 and the increase of the rent in February, 2008 was found to be the guideline amount (1.4%) applied to the $825.00 per month rent ($836.55 per month).  full-text (eng)


SOT-00022                                                                                                    26/03/2007

- s. 29 – Substantial interference with tenant’s reasonable
enjoyment of unit

The Tenant applied for an order determining that the Landlord substantially interfered with the reasonable enjoyment of the rental unit by the Tenant or a member of the Tenant’s household.  The Tenant became engaged to be married and intended to reside in the residential unit with his wife, although he did not intend to have his wife added to the tenancy agreement as a tenant.  The tenancy agreement provided that the fiancée was required to complete an “application for permission to reside.”  The fiancée’s application was rejected.  The Landlord advised the Tenant that if his wife moved in, the tenancy would be terminated.  The Tenant sought an order determining whether the Landlord had unlawfully refused to allow his fiancée to move into the rental unit and unlawfully threatened him with eviction is she does so.  He also sought an order that the Landlord stop the activity which prevents his new wife from moving into the unit.

The Landlord argued that the fiancée was a “prospective tenant,” as that term is used in s.10 of the RTA, and the Landlord is refusing the fiancée as a tenant in accordance with the RTA and Human Rights Code.  The Landlord pointed to O.Reg. 516/06, s. 3 in support of his position that the fiancée is a prospective tenant, since she could remain in the unit without the Tenant under s. 3.  Pointing to the intent of the Legislature in developing s. 3 of the regulation and the lack of application of s. 10, the Member disagreed with the Landlord’s position.  The Member noted that s. 10 of the RTA does not allow landlords to screen future potential tenants since, contrary to the position of the Landlord, a future potential tenant is not a “prospective tenant,” as that term is used in s. 10.  According to the Member, a prospective tenant is someone who is applying to be a tenant, not someone who may, in the future, have the right to become a tenant if certain things happen.

The Landlord also argued that the tenancy agreement provides that the Landlord can refuse prospective tenants/occupants and the Tenant should be bound by that agreement.  The Member found that, given the language of the tenancy agreement, it was not clear that the Tenant did not act in accordance with its terms.

The Member found that the Landlord’s actions have had the effect of substantially interfering with the Tenant’s reasonable enjoyment of his rental unit, as reasonable enjoyment is the contractual right to have full use of the rental unit for all lawful purposes and the Tenant was not acting unlawfully.

The Landlord was ordered to refrain from refusing to allow the Tenant’s fiancée to move into the rental unit and threatening eviction of the Tenant and his fiancée. 
full-text (eng)


SOT-00042                                                                                                 20/04/2007

- s. 20, maintenance, repairs – flooding 

A water sprinkler pipe broke on the top floor of the building, causing flooding and extensive damage to 64 units and some of the common areas.  The Tenant filed a T6 application for an order determining that the Landlord had breached its maintenance obligations.

The Member determined that the Landlord had performed routine inspections on a regular basis, and could not have predicted or prevented the flood.  The Landlord responded immediately upon discovering the flooding.  The repairs were made as quickly as possible.  The Landlord provided the Tenant with accommodations at a hotel for 20 days and, as a gesture of good will, paid the affected Tenants $500 each. 

The Tenant’s application was dismissed.  full-text (eng)


SOT-00078                                                                                                     27/03/2007

- s. 31, illegal entry by superintendent

The superintendent, who was new to the building, unlocked the door of the Tenant’s unit to place a parcel inside and then re-locked the door. The superintendent believed he was being helpful, saving the Tenant the time of retrieving the parcel later. An alarm was triggered, which both the Tenant and the police responded to. The Tenant, a protected refugee, testified that he has endured some unpleasant events in his life and that the incident has sparked memories of things he has been trying to forget and has made him feel insecure.

The Member determined that although the superintendent did enter the unit illegally, the superintendent’s actions, under normal circumstances, would not justify termination of the tenancy; however, considering the circumstances of the Tenant, termination is justified. The Member also determined that it is not appropriate to fine the Landlord because there was no intent to injure, nor is it appropriate to require the Landlord to pay for the moving truck rental because the Landlord is not responsible for the events in the Tenant’s life.

The Member ordered that the tenancy be terminated.  full-text (eng)


SOT-00163                                                                                                     27/04/2007

- s. 64, interference with enjoyment

The residential complex is comprised of two rental units, the Tenant occupies the lower unit.  The lease agreement required that the Tenant pay gas, electricity and water charges for the unit.  The Tenant set up the utilities in her name but later found that there was only one gas meter for both units.  The Tenant was informed by the Landlord that she should collect one half of the gas costs from the upper tenant each month.  When the upper tenant failed to pay half of the gas costs billed to the Tenant, the Landlord agreed to pay half of the costs each month and collect the amount owing from the upper tenants.  The Landlord paid one half of the gas costs in December 2006, but did not do so in subsequent months.  As a result, the gas bill was in arrears and subject to disconnection.

The Member found that the Landlord’s failure to make suitable arrangements to ensure that each tenant pays their share of the gas costs, put the Tenant in a vulnerable position and the Landlord’s failure in this regard constitutes substantial interference with the Tenant’s reasonable enjoyment of the unit.     

The Member ordered payment of one half of the outstanding gas bill by the Landlord and monthly payment of one half of each monthly gas bill thereafter.  If the Landlord fails to pay one half of the gas bill in any month, the Tenant may deduct the outstanding amount from her monthly rent.  full-text (eng)


SOT-00248-IN(2)                                                                                         01/06/2007

- s. 22, reasonable interference – s. 21(1), vital service

The Tenants applied for an order determining that the Landlords substantially interfered with the reasonable enjoyment of the Tenants and withheld or deliberately interfered with the reasonable supply of a vital service.

At an emergency hearing held to determine whether the Landlords complied with a prior interim order in this matter, the Member found that the Landlords breached the provisions of that order by: imposing conditions on the utility company when it attended the unit to enforce the vital services bylaw; failing to reinstate the utility; and failing to provide a power unit for the Tenants’ Continuous Positive Airway Pressure (CPAP) machine in a reasonably timely way.

The Member issued an interim order requiring the Landlords to provide the utility company and the municipality unrestricted access to the unit and complex for the purpose of restoring the power to the unit and enforcing the vital services bylaw; that the Tenants may terminate the tenancy on 48 hours written notice within 60 days of the order; the suspension of rent during the period of non-compliance; the Landlords to ensure that power is continuously supplied to the Tenants’ CPAP machine; the Landlords to pay to the Board a daily administrative fine of $500.00 until the Landlords restores power to the unit or until the Tenants vacate the unit. 
full-text (eng)

 

SOT-00249                                                                                                 21/06/2007

– s. 135 money collected or retained illegally – care homes
– Notice of termination – s. 37(3) agreement to terminate

The Tenant applied for an order determining that the Landlord had collected or retained money illegally.

The Tenant moved to a care home directly upon her release from a hospital and had paid rent in full at the beginning of each month.  There was no written tenancy agreement notwithstanding that section 139 of the RTA requires that there be a written tenancy agreement relating to the tenancy of every tenant in a care home.

The Tenant found alternate accommodation, and, on the second of the month, notice was given to the Landlord that the Tenant would vacate the premises on the 15th of that month.  The Tenant demanded that the Landlord return one-half of that month's rent to the Tenant. However, the Landlord, based upon a lawyer’s advice that 60 days notice was required to terminate the tenancy, refused the refund.

The Member found that there was an agreement between the Landlord and the Tenant to terminate the tenancy and that notice is not necessary where there has been an agreement to terminate a tenancy.   The Member also noted that, in the absence of an agreement to terminate a tenancy in the case of a care home, only 30 days notice is required.

The Member directed the Landlord to pay the Tenant the amount of excess rent for the period from the day vacant possession was given until the end of the month. 
full-text (eng)


SOT-00269-AM                                                                                     18/09/2007

– s. 29 – illegal entry, alter locking system, interfere with reasonable supply of a vital service; s. 30 – administrative fine, payment of reasonable expenses of the Tenant

The Tenant applied to the Board for an order that the Landlord had entered the rental unit illegally, altered the locking system, and withheld the reasonable supply of services.   

The rental unit was deficient from the outset of the tenancy.  After the Tenant had complained to the Ministry’s Enforcement Branch and had withheld rent to try to encourage the Landlord to resolve the issues, the Landlord cut off the power, changed the lock and removed the Tenant’s possessions.

The Member found that the Tenant’s estimates of the value of the items disposed of by the Landlord were reasonable.  The Member detailed the specific items and the amounts the Landlord owed the Tenant for replacement costs.

The Member also ordered the Landlord to pay an administrative fine of $2,500 to act as a deterrent and because of the Landlord’s blatant disregard for the Act.  In determining the amount of the fine, the Member reviewed other cases, presented by the Tenant’s agent, in which the Board had imposed administrative fines against the same Landlord. The Member noted that in none of those cases had the fines been ordered as of the events at issue in this application, and the Landlord did not have the benefit of knowing the specific potential consequences of his actions on the date these occurred. full-text (eng)


SOT-00474                                                                                              03/08/2007

– s. 135 – money collected or retained illegally; s. 13
– commencement of tenancy; s. 106 – rent deposit

The written tenancy application provided that the rent deposit was non-refundable.  The Tenant claimed that a verbal agreement the Tenant and the Landlord had made providing for the return of the deposit should override the written agreement.  The evidence, however, disclosed that the Tenant did not keep the verbal agreement and advised the Landlord after the date on which the tenancy had commenced that the Tenant would not take possession of the rental unit.

The Member found that the Tenant was not entitled to a return of the rent deposit as section 13 of the Act provides that a tenancy commences on the date that the Tenant was entitled to occupy the unit whether or not the Tenant occupied the unit. full-text (eng)

 

SOT-00795                                                                                             07/02/2008

– Human Rights Code –disability -  duty to accommodate, Statutory Powers Procedure Act– s. 23 – exclusion of representatives – eligibility of paralegal

The Tenant’s representative had not filed a completed application for licensing as a paralegal with the Law Society of Upper Canada by the last date for doing so, October 31, 2007, and, was not exempt from licensing.  The Member excluded the representative.

The Tenant had a disability, Multiple Sclerosis (MS), and used a scooter.  It was difficult for the Tenant to access the rental unit in the absence of a device being provided by the Landlord that would facilitate the Tenant’s ability to go through the door to the rental unit.  The Member found that the poor access to the rental unit resulted in a restriction on the Tenant as a result of a disability.

The Member found that the Landlord had a duty to provide reasonable accommodation to the Tenant but that obligation did not require the Landlord to provide automatic access to the rental unit;  a less expensive option such as a door stop, wedge or similar device to hold the door open would be sufficient to satisfy the Landlord’s duty to accommodate the Tenant in this case. full-text (eng)


SOT-01293                                                                                               18/07/2008

– s. 135 – money collected illegally – contract – requirement for both offer and acceptance to create binding contract

The Tenants signed an offer to lease which the Member found they had revoked before the Landlord had accepted the offer and had communicated that acceptance to the Tenants.  The Member found that, as there was no acceptance of the offer by the Landlord before the Tenants revoked that offer, there was no tenancy agreement and the Landlord had to refund the rent deposit to the Tenants.  full-text (eng)


SWL-01196                                                                                                   04/04/2007

- s. 63(1)(a), wilful damage – s. 83(1)(b), postponement of eviction

The Landlords applied for an order terminating the tenancy and evicting the Tenants because the Tenants or their guests have wilfully caused undue damage to the rental complex. Only the Landlords attended the hearing.

The Member found that the Tenants or their guests had caused undue damage in the amount of $864.34 by breaking the glass door at the front of the unit, causing a 12-inch hole in the drywall near the stair well, smashing a steel door at the back of the unit, breaking the door jam of that door, and by puncturing another door. 

However, given that there has been no re-occurrence of damage and that the Landlords waited nearly one month from the incident to file their application, the Member decided to delay eviction for seven days and not require the sheriff to expedite enforcement of the eviction. 
full-text (eng) 

 

SWL-03592-RV & SWT-00325-RV                                                           14/09/2007

– s. 209 (2), reasonably able to participate in the proceedings

In her application, the Tenant had provided the rental unit address as her address for mailing and had provided a telephone number and a “hotmail” e-mail address.

The Tenant moved out of the rental unit, but did not provide a new mailing address to the Board or to the Landlord’s agent.  The Board’s Notice of Hearing was sent to the Tenant’s last known address.  The Landlord had sent an e-mail to the Tenant about the hearing date and had tried to call the Tenant.  The Tenant claimed that the Landlord’s agent knew that the Tenant had only limited internet access.

The Tenant did not appear at the original hearing.  At the review hearing, the Member found that the Tenant is responsible for ensuring that the Board has the Tenant’s current contact information and missed the original hearing date only as a result of her own negligence. full-text (eng)


SWL-04015                                                                                               10/07/2007

– s. 59 arrears – s. 74 (2) discontinuance of application where arrears
 and all related charges paid by the Tenant

The Landlord applied for an order terminating the tenancy and evicting the Tenants for non-payment of the rent owing.

The hearing occurred on the 3rd day of the month. On the 29th day of the prior month, the Tenants paid all the arrears of rent, the Landlord’s application fee, the NSF charges and the administration charges.  At the hearing, the Landlord argued that, as the Tenants had not paid the rent for the month during which the hearing proceeded, the Board had the jurisdiction to make an order terminating the tenancy and evicting the Tenants.

The Member, in ordering that the Landlord’s application be discontinued, held that subsection 74 (2) of the RTA requires that tenants pay all the arrears and the application fee owing as of the date of payment in order to discontinue the application, but does not require that tenants pay any additional rent owing as of the hearing date. full-text (eng)


SWL-05726                                                                                               13/09/2007     

- section 59 - arrears - validity of Notice of termination

Two Tenants lived in the rental unit and were named in the tenancy agreement, however, the Landlord's Notice of termination named only one of the two Tenants.  The named Tenant gave evidence that the unnamed Tenant was aware of the contents of the Notice.  The Member found that, while the unnamed Tenant may have been aware of the Landlord's application, there was no evidence that the unnamed Tenant knew that his tenancy was in jeopardy or that he was given an opportunity to void the Notice by paying the arrears.  The RTA permits an amendment of an Application, but, not an amendment of a Notice of termination.  The Member found that the Notice was void.  full-text (eng)  


SWL-13073                                                                                             17/04/2008

– s. 6 (2) – Exemptions – rules relating to rent – s. 87 – application for an order for payment of arrears- s. 116 – notice of rent increase

The Landlord gave the Tenant a Notice of Rent Increase in 2007.  The Tenant submitted that she was not required to pay the increased rent as, in 1996, the Landlord’s property manager had given the Tenant a letter that purported to provide that as long as the Tenant remained in the rental unit, the rent for that unit would remain at the 1996 amount.

The Member relied upon and applied the Divisional Court’s decision in Barber v. 1086891 Ontario Inc., and found that the Landlord was not estopped from increasing the rent despite the letter indicating otherwise.

The Member also found that, in accordance with clause 6 (2) (c) of the RTA, as the rental unit was part of a building that was constructed in 1994, and, therefore not occupied for residential purposes prior to November 1, 1991, the rent for the rental unit was not subject to guideline increases, and the Landlord was entitled to impose a greater than guideline increase.  full-text (eng)


SWL-14748                                                                                            05/06/2008

– s. 87 – arrears of rent – tenant must be in possession of rental unit – application for order terminating tenancy on basis that tenant had abandoned the rental unit

The Landlord had filed two applications concurrently with the Board, the first for arrears of rent and eviction of the Tenant and the second for an order that the tenancy be terminated as the Tenant had abandoned the rental unit.

The Member found that, at the date the applications were filed with the Board, the Tenant had abandoned the rental unit, and, as the Tenant was not in possession of the rental unit on the date that the application for arrears and termination of the tenancy was filed, the Board had no jurisdiction to order arrears of rent.

The Member terminated the tenancy as of the date he found the unit to have been abandoned. full-text (eng)


SWT -00135                                                                                              26/10/2007

– s. 2 – definitions -  s. 3 – application of RTA - s.  5 – Exemptions from RTA

The complex was a membership-owned four-season campground.  A non-profit corporation owned the land and the members (who paid dues) owned what was on their site.  The Member reviewed the corporation’s letters patent and by-laws in detail with respect to determining the nature of the relationship existing between the members of the corporation and the corporation.

The Member considered the application in the context of section 202 of the RTA (real substance of all transactions) and found that the relationship between the members of the corporation and the corporation was similar to that of a shareholder in a share capital corporation with the exception that the members do not benefit financially from the relationship.  The Member found that there was no landlord-tenant relationship between the parties because the main purpose and activity of the corporation was to provide recreational facilities, not residential premises, to the members.

As there was no landlord and tenant relationship, the Board did not have jurisdiction and the Tenant’s application was dismissed.  full-text (eng)


SWT-00529                                                                                                  28/09/2007

– s. 20 (1), Landlord’s responsibility to repair

The Tenant’s maintenance application was based upon issues relating to what the Tenant said was mould in the rental unit.  The evidence at the Board’s hearing disclosed that there was peeling paint and a black substance around the bedroom windows and elsewhere in the rental unit.  There was no evidence, however, that the substance was “mould” and there was no evidence of the Landlord having failed to comply with a health, safety, housing or maintenance standard.  The Tenant had moved out of the rental unit and was seeking two remedies, an abatement of rent and an order terminating the tenancy.

The Member found that the Landlord had breached the maintenance obligations in subsection 20 (1) of the RTA.   The Member found that an abatement of rent would not be appropriate in the circumstances where the Tenant, after first having complained of the problem to the Landlord’s manager, used bleach as the manager suggested, but, then did not request a repair or advise the Landlord further for approximately two years.  The Tenant also refused the assistance she was offered.

The Tenant had moved out of the rental unit without having given 60-days notice to terminate.  The Member found that there was insufficient evidence that the condition of the rental unit was so poor as to threaten the safety of the Tenant and her children. The Landlord had not been given a reasonable opportunity to resolve the problem.  Termination of the tenancy was not warranted.  full-text (eng)

 

SWT-00924                                                                                                    01/02/2008

– s. 116 – notice of rent increase void, s. 135 (4) – money collected or retained illegally – time limitation

The Tenant moved into the rental unit in June, 2002 and moved out in September, 2007 at an initial rent of $550.00 per month.  The Landlord gave the Tenant five annual Notices of Rent Increase, however, in each case, the Landlord gave the Tenant fewer than 90-days notice.

The Member relied on the Ontario Court of Appeal decision in Price v.Turnbull’s Grove Inc.,and found that, as none of the Landlord’s Notices of Rent Increase complied with either the TPA, or, the RTA, the notices were void.

The Member found that, as the Tenant was no longer in possession of the rental unit when the Tenant filed his application (December 14, 2007), the Tenant, by virtue of subsection 135 (4) of the RTA,was entitled to recover the additional rent retained by the Landlord for only the one-year period from December 14, 2006 to December 14, 2007. full-text (eng)


TEL-00091                                                                                                      22/02/2007

- s. 29, excessive noise – s. 83, conditional relief

The Landlord applied to evict the Tenant because of complaints from other tenants about excessive noise emanating from the rental unit. The Tenant testified that she was willing to take several measures to reduce the volume of noise. The Tenant’s 16 year-old daughter uses a wheel chair and it is difficult for the Tenant to find appropriate accommodation.

The Member found that the Tenant or another occupant of the rental unit substantially interfered with the reasonable enjoyment of another tenant of the residential complex by making excessive noise. The Member granted relief from eviction because of the difficulty the Tenant may have in finding suitable alternative accommodation and her commitment to reduce the level of noise.

The Member ordered that, for the next six months, the Tenant shall ensure that there is no excessive noise; where the Landlord receives a complaint, the Tenant or occupant shall immediately take steps to reduce the noise to a reasonable level. The order includes a s. 78 provision should the Tenant breach the conditions. 
full-text (eng)


TEL-01943                                                                                                      22/05/2007

- s. 48, landlord’s own use – good faith – residential occupation 
- empty unit

The Landlords live on the main floor of a house.  They applied to evict the Tenant from the basement unit because they want the unit for their own use.  One of the Landlords claimed that conflicts with the Tenant are adversely affecting his health.  He testified that if the Tenant is evicted, the Landlords would not use the unit for any purpose, and would not re-rent it. 

The Tenant had filed two previous applications with the Tribunal, and claimed that the Landlords’ application was part of the Landlords’ continuing campaign of harassment to evict him from the unit.  The Member determined that, although the landlord-tenant relationship had deteriorated, once the Landlords had established a genuine intention to reclaim the rental unit, their motive was irrelevant. 

However, the Member found that the Landlords’ proposed use of the rental unit – simply leaving it empty and not using it for any purpose – cannot be considered “residential occupation” as that term is used in s. 48 of the RTA.  Support for this interpretation can be found in s. 57 which provides for a monetary remedy in the event that no person referred to in s. 48 “occupied” the rental unit within a reasonable time.  The Landlords’ application was dismissed. 
full-text (eng)


TEL-02602                                                                                                      31/05/2007

- s. 5(i), required to share – s. 9, whether Act applies

The Landlord applied for an order to determine whether the RTA applies to the residential complex.  The complex is a house with the Landlord living on the main floor and the Tenant living in the basement.  The arrangement is that the Landlord can enter the Tenant’s unit and use the bathroom, but the Tenant cannot enter the Landlord’s unit. 

The Member determined that the issue is whether the Tenant is required to share a bathroom or kitchen.  If so, the rental unit is exempt from the RTA, and the RTA does not apply.  Here the Tenant was not required to share the bathroom with the Landlord.  The Landlord could use the Tenant’s bathroom but this was merely a convenience.  The Member found that the RTA applies.
full-text (eng)

 

TEL-03366-RV                                                                                             18/07/2007

- s. 3 (4) RTA – RTA to prevail over other Act; s. 49 (3) RTA - s. 49 (3) period of notice where purchaser requires unit; s. 48 (1) Mortgages Act- possession of rental unit obtained only in accordance with the RTA;s.49 (3)

The Tenant had entered into a lease for a term of five years with the former Landlord and the mortgagee in possession sought to terminate the tenancy on the basis that the purchaser required possession.

The mortgagee in possession submitted that the Board should not rely on the decision of the Ontario Court of Appeal in Canada Trustco Mortgage Co. v. Park as that case had been decided under the provisions of the TPA.

The Member found that Canada Trustco applies as the RTA provision is the same as that in the TPA.

In denying the Landlord’s request to review the hearing order, the Member found that the provisions of the RTA prevail over the conflicting sections of the Mortgages Act.

In this case, the Notice of termination did not meet the requirements of the RTA as the Notice did not specify a termination date that was the last day of the term of the tenancy.  full-text (eng)


TEL-05888-SA                                                                                              05/10/2007

– s. 78, application based on previous order because of failure to meet
a condition – motion to set aside
order obtained on the application.

The Tenant was required to make payments on each of two consecutive days and attempted to pay the full amount due on the latter of the two days.  However, the Landlord refused to accept the cheque the Tenant tendered as the Landlord was concerned that there were insufficient funds to cover the cheque.  The Landlord agreed to accept a cash payment from the Tenant.  The Landlord accepted the full payment due in cash paid by the Tenant to the Landlord within three days after the latter of the two days for payment.  In the meantime, and, before the Tenant gave the Landlord the cash payments, the Landlord applied for the eviction order the Tenant sought to set aside.

The Member set aside the order and dismissed the Landlord’s application under section 78 of the RTA as the Landlord had accepted the payment and the payment was made within three days of the deadline for full payment. full-text (eng)

 

TEL-06892                                                                                                  25/10/2007

– s. 93, termination of tenancy, superintendent’s premises – s. 2 (1) definition of “superintendent’s premises” – s. 202, real substance of all transactions and activities

The residential complex consisted of a house and a barn.  The Tenant had sold the residential complex to the Landlord and the parties had entered into a tenancy agreement entitled, “superintendent’s tenancy agreement”.  The Landlord advised the Tenant that the Tenant’s employment was terminated and the Landlord applied for an order terminating the tenancy and evicting the Tenant.

The Member, in dismissing the Landlord’s application, examined the true substance of the agreement entered into by the parties and found that there was no indicia of employment in this case;  instead, the tenancy agreement attempted to circumvent the operation of the RTA  by naming the Tenant a “superintendent” as a matter of convenience. full-text (eng)

 

TEL-07722                                                                                                  29/11/2007

– s. 66 – termination for cause, act serious impairs safety
- s. 83, relief from eviction

The residential complex was a rooming house and the Tenant carried on an illegal tattooing business from his rental unit.  In the conduct of that business, the Tenant did not comply with the minimum operational and equipment requirements for personal service providers, including tattoo studios.  The Member found that the Tenant’s failure to meet health department standards for proper infection control placed clients, other tenants and guests at serious risk of harm.  The Member also found that the Tenant’s assurances that he had stopped all tattooing activity only went to the issue of granting discretionary relief from eviction, and, in this case, the evidence was that the Tenant had continued that activity.  The Member did not grant relief from eviction. full-text (eng)

 

TEL-09610                                                                                                     27/02/2008

– s. 2 (1) – definition of “tenant” - “co-ownership” - s. 202
– real substance of all transactions

The Applicant applied for a Board order with respect to alleged arrears of rent and persistent late payment of rent.   The Respondent submitted that the Board did not have jurisdiction to consider the application as the residential complex was co-owned by the Landlord and Tenant pursuant to a trust agreement.

Title to the property was registered in the Applicant’s name and after the purchase of the property the parties had entered into a trust agreement that provided for co-ownership of the property and the manner in which mortgage and utility payments would be made.  After default by the Respondent in the payment of mortgage and utility arrears, the parties signed a “temporary” lease agreement in order to “protect everyone’s interests”.

The Member, in finding that the Board did not have jurisdiction, considered the definition of “tenant” in s. 2 (1) of the RTA which precludes a co-owner of the residential complex from being a “tenant”.  The Member also applied section 202 of the RTA and found that, particularly in the absence of a modification or revocation of the trust agreement, the lease agreement was in essence an accounting vehicle for the future potential purchase of the property by the Respondent and not a tenancy agreement for residential premises. full-text (eng)


TEL-12667                                                                                                   15/05/2008

– s. 61 (RTA) – illegal act – s. 66 (RTA)  – impairs safety – s. 15 – Statutory Powers Procedure Act – hearsay evidence

The Tenant was alleged to have participated in an assault by having shot  another tenant in the same residential complex with a pellet gun.  The Tenant was charged with a number of criminal offences in relation to that other tenant, including threatening death and attempted break and enter.  At the date of the Board’s hearing, the Tenant had not been convicted of those offences.

The investigating constable who had attended at the residential complex at the time of the incident was not available to testify at the Board’s hearing, however, the constable’s manager, to whom the constable had spoken about the incident, was permitted to give evidence.

In permitting the manager to testify as to what had occurred, the Member reviewed the law relating to the admissibility of hearsay evidence specifically in the context of a consideration of the reliability of that evidence.  The Member found that, as both the investigating officer and that officer’s manager were professional peace officers who regularly respond to and investigate illegal acts and other conduct issues, as the investigating officer reported the results of his investigation to his manager in the normal course of his duties, and, as the incident report prepared by the investigating officer contained extensive supporting information, the hearsay evidence was reliable.

The Member applied the Divisional Court’s decision in Bogey Construction Ltd. v. Boileau and found that the Landlord, in this case, had satisfied the burden of proof in relation to an application based upon the Tenant’s alleged criminal conduct, that is, proof to a higher degree of probability than the ordinary “balance of probabilities” standard. full-text (eng)



TET-00001                                                                                                     19/02/2007

- s. 57, Former tenant’s application where notice given in bad faith

Relying on s. 48 of the RTA, the Landlord gave the Tenant notice to terminate her tenancy.  The rental unit was one of two units in the basement of a house. The Landlord lived on the main floor with his wife.  After having moved out of the rental unit, the Tenant learned that the unit had been rented out.  The Landlord explained that, when he gave the Tenant notice, it was his intention that his wife move into the rental unit in order to comply with a separation agreement and requirements of the children’s aid society.  The wife decided not to move into the unit.

The Member found that it was the Landlord’s genuine intent that his wife would move into the rental unit.  The fact that the Landlord has since rented the unit does not indicate that the notice was given in bad faith at the time it was served.  According to the Member, the fact that the Landlord allowed the Tenant to reside in the rental unit past the date set out in the notice supported a conclusion that the Landlord intended no ill will. 

The Tenant’s application was dismissed.  full-text (eng)


TNL-00388                                                                                                     17/04/2007

- s. 88, deemed termination - improper notice provided

On January 29, 2007, the Tenant provided written notice of termination effective February 28, 2007.  When the Tenant failed to pay rent on February 1, 2007, the Landlord served a N4 notice on the Tenant and subsequently filed an application for termination of the tenancy.  The Tenant vacated the unit on February 21, 2007.

The Member found the Landlord’s notice of termination to be invalid and the application was amended to address the issue of arrears only.  The notice of termination given by the Tenant was deemed to be invalid as the Tenant failed to provide the required 60 days notice.  Therefore, pursuant to s. 88 of the RTA, the Member calculated arrears of rent for the period ending on the earliest termination date that could have been specified by proper notice, in this case March 31, 2007.  The Member took into consideration the last month’s rent deposit as the tenancy was terminated.

The Member ordered payment of arrears for the period of February 1, 2007 to February 28, 2007.  full-text (eng)


TNL-02285/TNL-01415                                                                                31/05/2007

- s. 61, illegal act, breach of zoning by-law –
- s. 64, interference with enjoyment, landlord’s lawful interest

The Landlord applied to evict the Tenant for carrying on an illegal business in the rental unit and for interfering with the other tenants’ reasonable enjoyment and the Landlord’s lawful interest. 

The Tenant no longer lives in the rental unit but retains possession and control of the unit.  He uses the unit for short-term rentals and markets the units to “escorts”, charging them $140 per day.  The Tenant advertises the premises on the internet and in a local magazine. 

The Member determined that the Tenant is in breach of a Toronto by-law because the Tenant’s use of the rental unit did not fall within any of the permitted categories set out in the by-law.  The Member also determined that the frequent comings and goings of unknown non-residents at all hours of the day and night compromises the security of the building and impinges on the reasonable enjoyment of other tenants.  The Member further determined that the existence of a “whorehouse” in the building has the potential of negatively affecting the character of the building and the Landlord’s ability to attract good, long-term tenants, and is therefore is in conflict with the Landlord’s lawful interest.  The Landlord’s application was granted.  The order was upheld upon review.  full-text (eng)

 

TNL-06006-SA                                                                                           18/01/2008

– s. 74 (11) – non payment of rent, payment after order becomes enforceable.

The Tenants filed a motion to set aside an eviction order and submitted that they had paid all outstanding amounts to the Landlord after the eviction order was enforceable but before it was executed.

The Member found that at the time the Tenants’ affidavit was sworn stating that payment had been made; no payment had actually been made by the Tenants.  In addition, a cheque subsequently delivered to the Landlord on behalf of the Tenants was a personal cheque, was not certified and had not cleared the bank as of the date of the motion.  The Member, in dismissing the motion, found that it was incumbent on the Tenants, in attempting to void the eviction order, to ensure that payment was actually made. full-text (eng)


TNL-09252-RV                                                                                           27/05/2008

– s. 209 (2) RTA; s. 21.2 Statutory Powers Procedure Act – review
– Rule 29 – Guideline 8

On an application by the Landlord, the Board had terminated the tenancy of the Tenant.  The Tenant filed a request to review the Board’s order, and, in that review request filed a four-page letter, new documents that had not been filed at the original hearing and raised a number of other objections.

The Member, in dismissing the review request, set out the Board’s review process with particular reference to the fact that only an issue deemed on its face to raise a potentially serious error in the original order or proceedings will be referred to a review hearing.

The Member found that it is not sufficient for a party requesting a review to simply file new documents and expect the Board to determine that the new documents reveal some error in the decision.  The Member found that, particularly given that the review consideration proceeds initially on an ex parte basis, unless the party who filed the new documents on the review provides evidence as to why the Board should even consider the new documents at the review stage, it is improper for the Board to review those documents.

The Member found that, in addition to the issue of the documents filed with the review request, the Tenant did not provide particulars of the errors in the original proceedings that the Tenant alleged. full-text (eng)


TNL-12560-VO-AM                                                                                      31/07/2008

– s. 74 (4) – payment before order becomes enforceable – s. 74 (6) –determination that full payment of arrears made before order becomes enforceable

The Tenant filed a motion to void an order terminating the tenancy and evicting the Tenant because the Tenant had failed to pay the rent he owed.  The Tenant claimed that, before the order became enforceable, he paid the amount required to void the order.

The Tenant submitted that the Landlord had advised the Tenant that an amount less than that ordered by the Board was required to void the order.  The Member who considered the Tenant’s ex parte written motion found that the payments made by the Tenant were short (by $27.04) of the amount required by the Board order the Tenant sought to set aside. 

The Member, in denying the motion to set aside the order, found that there is no discretion in the Board to allow an order to be voided by payment of anything less than the amount the order requires to be paid. full-text (eng)


TSL-00840                                                                                                      10/05/2007

- s. 61, illegal act, – s. 64, interference with enjoyment –
- s. 66, impaired safety – s. 83, relief from eviction

The Landlord applied to evict the Tenant for interfering with enjoyment, impairing safety and committing illegal acts.  The Tenant had engaged in erratic, hostile, loud and dangerous behaviour, including threatening death to his own guest and chasing her through the building with an axe.  Some of these acts continued even after the Landlord gave the Tenant three notices relating to these acts. 

The Member determined that the notices were valid and that the Landlord had met the burden of proof set out in the case law and Guideline.  The Member rejected the Tenant’s contention that eviction is tantamount to capital punishment and should be used with similar restraint.  Although the Tenant had lived there for fifteen years, the behaviour was dangerous and there was no indication that it would change.  In the circumstances, it was not appropriate to make a conditional order.

The Member ordered eviction but delayed it for twenty-one days.  full-text (eng)


TSL-01314                                                                                                      25/04/2007

- s. 100, unauthorized occupant – roommates

The Tenant rented the unit for the use of his employees.  The Tenant paid rent for six months, but then stopped paying.  The Landlord visited the unit and was told by an occupant that he paid his rent to the Tenant, and showed the Landlord receipts.  The Landlord was unable to determine whether the occupant was one of the occupants included in the tenancy agreement.  The Landlord applied to evict the occupants, claiming they were unauthorized. 

The Member determined that the Landlord knew from the outset that the Tenant would have at least two roommates.  Given that several people were expected to occupy the unit, and since there was no evidence to show that the Tenant did not live in the unit, the Member found no compelling evidence that occupancy of the rental unit had been transferred.  Instead, the circumstances led the Member to believe that the occupant is the Tenant’s roommate.

The Landlord’s application was dismissed.  full-text (eng)

 

TSL-03635                                                                                                   24/09/2007 

- s. 59, arrears of rent – validity of Notice of termination – Validity of Notices of Rent Increase - Notice of termination void

The Landlord applied for an order terminating the tenancy and evicting the Tenant because the Tenant had failed to pay amounts by which the rent for the rental unit would have been increased as a result of disputed Notices of Rent Increase (the “Notices”) for three years.  The Tenant claimed that the Notices were invalid as the addendum addressing renewal of the tenancy agreement contained on the Notices did not comply with the form approved by the Board.  The Landlord claimed that the Notices were in substantial compliance with the form of Notices approved by the Board, and, thus valid.

The Member found that the addendum may be misleading to the extent that a reader may reasonably assume it has been approved by the Board.  The Member found that the Landlord cannot take a rent increase that is contained in a form that is confusing, that may contradict the Board’s approved form, and, that is, therefore, void.
full-text (eng)



TSL-04977                                                                                                   21/08/2007

– s. 48,  Landlord’s own use (for person who will provide care services
 to the Landlord) – s. 83,  exercise of discretion to delay eviction

The Landlord was an elderly woman who resided on the main floor of the residential complex, and, who required the assistance of a care giver.  The Tenant lived in the basement of the residential complex, directly below the Landlord’s unit.

The Member found that the Landlord, in good faith, required possession of the rental unit for the purposes of residential occupation by a person who would provide care services to the Landlord.

The Member, in delaying the eviction for two months, considered the Landlord’s and Tenant’s circumstances, including the length of the tenancy, the state of health of both parties, and, their respective ages.  full-text (eng)

 

TSL-06312-VO                                                                                           13/11/2007

– s. 59, arrears of rent – s. 74 (11) payment after order becomes enforceable,
motion to void order

Pursuant to a Board order, the Tenant was required to pay a specified amount to the Landlord on or before Friday, October 26, 2007, if she wished to void the order before the enforcement date.  The Tenant had tried to pay the amount owing in cash before 6:00 p.m. on the last date for payment, however, although the office was normally open to 6:00 p.m., it was closed at that time on October 26, 2007.

The Tenant obtained a money order on Monday, October 29, 2007 which she delivered that day to the Landlord’s office.  The Landlord accepted the payment, but then decided to return it to the Tenant on the basis that the payment was made after the last date specified in the order.

The Landlord claimed that the Tenant owed the Landlord the non-refundable fees the Landlord had incurred to enforce the eviction.  The Member applied s. 74 (15) of the RTA, and found that the Landlord chose to incur the eviction costs when the Landlord chose to enforce an order the Landlord knew was going to be rendered unenforceable.

At the date of the hearing of the Tenant’s motion, the Tenant had paid the amounts owing under the order and had voided the order under section 74 (11) of the RTA. full-text (eng)

 

TSL-06975-RV                                                                                               11/12/2007

– s. 37 (2) – termination of tenancy by notice, s. 45 – notice of termination,
non-waiver
by payment of arrears of rent – s. 106 – rent deposit

The Tenant had given the Landlord a Notice of Termination to be effective on September 30, 2007.  The Tenant had not vacated the rental unit and the Landlord obtained a Board order terminating the tenancy as of October 14, 2007.  The Tenant moved to set the order aside on the basis that the Landlord had accepted rent in November, 2007 for November, 2007, and, in so doing, had waived the Notice of Termination.

The Member considered that subsection 106 (1) of the RTA was determinative of the issue.   A rent deposit is to be applied for the last rent period before the tenancy terminates.  In this case, the tenancy did not terminate on the date specified in the notice (September 30, 2007), and the Board’s order had the effect of terminating the tenancy on October 14, 2007.  The rent the Landlord accepted in November was correctly applied to the rent for October, 2007.

The Member found that the rent the Landlord had accepted was, therefore, for arrears of rent and not for future rent.  full-text (eng)


TSL-07526                                                                                                03/03/2008

– s. 59 – arrears of rent - s. 111 – lawful rent – duress, undue influence

The Tenant and the Landlord had entered into a signed lease agreement that provided that the monthly rent for the rental unit was $500.00 while the Tenant was employed by the Landlord and $1325.00 if the Tenant ceased to be employed by the Landlord.  Under the Landlord’s policies, the Tenant did not qualify financially to rent a unit with a monthly rent of $1,325.00

The Landlord had demanded that the Tenant provide the Landlord with the signed lease before the Landlord would meet with the Tenant. The Tenant provided the signed lease, having done so, the Tenant met with the President of the Landlord, and, one week after the meeting, the Tenant’s employment was terminated by the Landlord.

Approximately, six months later the Tenant vacated the rental unit.

The Member, in finding that the lawful rent was $500.00 and that the tenancy terminated on the date that the Tenant vacated the rental unit, considered and applied the common law relating to rescission of a contract on the basis of duress and undue influence.  The Member found that the Landlord exercised duress and undue influence on the Tenant by making the signing of the lease a condition precedent for the meeting and withholding material information from the Tenant relating to the Landlord’s financial requirements for a lease at the higher amount and that the Tenant’s employment with the Landlord was at risk at the time the lease was signed.  full-text (eng)


TSL-05535                                                                                                21/01/2008

– s. 5 – exemptions from the RTA – s. 9 – application to Board to determine if the RTA applies

A university fraternity alumni association owned a building located near the University of Toronto.  Residents of the building are members of the fraternity and are students at the University.   The alumni association is a non-profit corporation made up of members of the fraternity who had graduated from university.  Residents of the building were required to pay rent and annual dues.

The Alumni Association brought an application to the Board to determine if the RTA applied.  The Association preferred to deal with the residents pursuant to the corporation’s by-laws rather than under the RTA.

The Member held that the onus was on the Alumni Association to show that the residential complex was exempt from the RTA.  The Member found that the RTA applied, and, in coming to that conclusion considered that the RTA is remedial legislation designed to ensure that protections provided to residential tenants are not easily avoided.  The Member applied section 5 of the RTA and considered, among other factors, whether the residential complex was akin to a non-profit housing co-operative or, otherwise, came within an exemption from the RTA.  The Member found that none of the exemptions applied to the residence. full-text (eng)


TSL-09947-SA                                                                                       25/04/2008

– s. 74 (11) – payment after order becomes enforceable – affidavit in support of the motion to set aside order – sufficiency of the affidavit

The Tenant filed a motion to set aside an order terminating the tenancy and ordering eviction.  The affidavit filed by the Tenant in support of the Tenant’s motion under subsection 74 (11) of the RTA incorrectly set out the amounts paid by the Tenant to void the order, however, the amounts actually paid by the Tenant were sufficient to void the order.

The Member, in allowing the motion and voiding the order, found that it was appropriate to take a “pragmatic approach” in this case where the Tenant’s error was inadvertent and, therefore, not made knowingly.  The Member found that, if the affidavit had been accurate, the Tenant would have received the same stay of enforcement of the order as he received with the inaccurate affidavit.
full-text (eng)



TST-00035                                                                                                    15/05/2007

- s. 19, Frustrated Contracts Act – s. 50, notice of termination

The Tenant applied for an abatement of rent for loss of enjoyment and withdrawal of vital services. 

A fire broke out in the building and the Tenant’s unit became unhabitable.  The Member determined that the work in the building had to begin as soon as possible because the structure was weakened and the roof was missing in places.  Therefore the tenancy agreement had become frustrated and the Landlord had no obligation to provide notice of termination under s. 50 of the RTA.  As well, the provision of vital services was not affected and therefore the Landlord had not withheld them.  The Landlord had already refunded the Tenant one month’s rent and the rent deposit. 

The Member determined that the Landlord’s refund of one month’s rent was reasonable compensation for interference with the Tenant’s quiet enjoyment, and dismissed the application.  full-text (eng)


TST-01025                                                                                                30/01/2008

– s. 74(2) – discontinuance of application,  s. 134 – additional charges prohibited,  O. Reg. 516/06, section 17, paragraph 6 – payments exempt from s. 134 of the RTA, s. 135 – money collected or retained illegally,
s. 106 – interest on rent deposit – transition provisions

The Tenants raised a preliminary issue relating to their contention that the Landlord had charged the Tenants illegal rent in the form of filing fees related to two previous applications by the Landlord for arrears of rent.  The Member found that the payment of the filing fees by the Tenants was in settlement of the two applications before the Board which resulted in the discontinuance of the Landlord’s applications against the Tenants.  The Member found that such payments were exempt from section 134 of the RTA by virtue of paragraph 6 of section 17 of O. Reg. 516/06 made under the RTA.

The Tenants also submitted that the Landlord had failed to pay interest to them on the last month’s rent deposit as required by the RTA.  The Landlord had paid interest on the rent deposit in 2006, but, not in 2007.  The Member found that, pursuant to subsection 106 (7) of the RTA, the Landlord was entitled to allocate a portion of the interest due to the deposit to top up the deposit so that the deposit continues to equal the monthly rent, however, in this case, the amount of interest required to top up the deposit was less than the total interest owing by the Landlord.

The Member also reviewed the application of subsection 106 (8) of the RTA to situations where interest is owing for a period that spans the operation of both the TPA (6% per annum) and the RTA (guideline increase – section 120 of the RTA).
full-text (eng)  


TST-00935-RV                                                                                       28/04/2008

– s. 13 (2) – commencement of tenancy – actual entry not required - s. 107 – rent deposit - prospective tenant - s. 135 – money collected or retained illegally

On October 1, 2007, the Tenant paid a rent deposit of $750.00 and signed an application form for a rental unit with the tenancy commencing on November 1, 2007.  The application form contained a provision that read, “the landlord’s acceptance of the deposit does not constitute a tenancy agreement”.  On October 25, 2007, the prospective Tenant advised the Landlord’s employee that he did not wish to move into the rental unit and requested the return of the deposit.  The Landlord re-rented the unit for December 1, 2007.

The Member found that, when the prospective Tenant paid the deposit and signed the application form, the prospective Tenant intended to be bound and that a tenancy agreement arose on the Landlord’s acceptance of the application form and the deposit.  The Member considered, applied and distinguished the Divisional Court’s decision in Benedetto v. Dineen. 

The Member, in dismissing the prospective Tenant’s application, found that, in this case, unlike the case in Benedetto, the prospective Tenant clearly entered into a binding tenancy agreement with the Landlord.  The Member applied subsection 13 (2) of the RTA that provides that a tenancy agreement takes effect when the tenant is entitled to occupy the rental unit whether or not the tenant actually occupies it.   The Member found that the tenancy existed for the month of November 2007 and the deposit was applied by the Landlord for the last month of the tenancy, that is, November 2007. full-text (eng)