COURT FILE NO.: 480/04
DATE: 20050915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, CHAPNIK AND LAX, JJ.
B E T W E E N:
626114 & 626115 ONTARIO LTD.
Landlord
(Respondent in Appeal)
- and -
LISA M. TIRADO
Tenant
(Appellant)
Dominic Leo, son of the principals of the corporate Landlord, as their Agent
In Person
HEARD: September 15, 2005
CHAPNIK J.: (Orally)
[1] The tenant, Lisa M. Tirado appeals from the July 30, 2004 Order of Elizabeth Beckett, Member of the Ontario Rental Housing Tribunal.
[2] Upon Application by the landlord, the Tribunal Member ordered the tenancy terminated, ordered the tenant to move out of the premises on or before August 10, 2004, and ordered that she pay the respondent $309.33 in rent owing plus $28.44 per day in compensation, commencing July 31, 2004. In doing so, Ms. Beckett found that the tenant had not received any interest on her last month’s rental deposit of $700.00 provided to the landlord when she became a tenant of the landlord in April, 1998. The Tribunal Member stated, that, “… the tenant may only claim one year interest” which she indicated was $42.00.
[3] On August 9, 2004, the Tribunal denied the tenant’s request to review the Tribunal Member’s decision and determined that no serious error had occurred in the Order or in the proceeding.
[4] The tenant raises two main issues in this appeal: the first pertains to the interest payable on the last months’ rent deposit and the second, to the eviction Orders.
[5] As to the first issue, the amount payable on the rent deposit involves an interpretation of a statutory provision and is a question of law. It should therefore be reviewed by this Court on a standard of correctness. See: Dollimore v. Azuria Group Inc. [2001] O.J. No. 4408. (Div. Crt.).
[6] The relevant sections of the Tenant Protection Act, S.O. 1997, C.-24 (“TPA”) read as follows:
Section 118:
(1) A landlord may require a tenant to pay a rent deposit with respect to a tenancy if the landlord does so on or before entering into the tenancy agreement.
(3) If the lawful rent increases after a tenant has paid a rent deposit, the landlord may require the tenant to pay an additional amount to increase the rent deposit…
(6) A landlord of a rental unit shall pay interest to the tenant annually on the amount of the rent deposit at the rate of 6% per year.
(7) Where the landlord has failed to make the payment required by subsection (6) when it comes due, the tenant may deduct the amount of the payment from a subsequent rent payment.
[7] Section 144:
(1) A tenant or former tenant of a rental unit may apply to the Tribunal for an order that the landlord … pay to the tenant any money the person collected or retained in contravention of this Act … .
(4) No order shall be made under this section with respect to an application filed more than one year after the person collected or retained money in contravention of the Act.
[8] In addressing the issue of interest on the rental deposit, the Tribunal Member stated:
The tenant has not received interest on her last month since she moved into the building. The landlord attempted to argue that although he did not pay interest, he credited the tenant with the interest by topping up her last month rent deposit. This is not credible as the last month rent deposit claimed in the application is $700.00, which is the amount collected by the landlord in 1998. The tenant may only claim one year interest. I have credited the tenant with $42.00 interest; this is for previous interest and not the interest owed for this calendar year.
[9] The Tribunal Member provided no reasons for imposing the one year limitation, but she may have relied on section 144(4) of the TPA. In our view, this was an error. The tenant was not bringing a claim under s.144, but was asserting her rights under s.118 with respect to interest owed on an annual basis.
[10] Regardless, even where an Application has been brought under s. 144, we agree with the reasoning of Tribunal Member, D. R. Wright, in Hash v. Retirement Life Communities, [2000], O.R.H.T.D. No. 12, that the one year limitation in s.144(4) should not apply to interest payments under s.118. Indeed, s.118(7) authorizes the tenant to deduct interest owed from a rental payment where the landlord has failed to make the required payment when it becomes due. That section appears to authorize a deduction of all interest owed. In this case the landlord has had the use of the tenant’s $700.00 rental deposit since 1998. The legislature, in its wisdom, has determined in s.118(6) that a tenant should have interest on those funds annually at a rate of 6% per annum.
[11] The landlord advanced the same argument before us as he had before the Tribunal Member, in that he had credited the tenant with interest by topping up her last month’s rent deposit. The Tribunal Member found that explanation not to be credible. Moreover, the landlord never gave the tenant notice or “required” her to increase the amount of the rent deposit. He, therefore, cannot rely on s. 118(3) of the TPA.
[12] Accordingly, we would vary the Tribunal’s Order in respect of the interest on the rental deposit and credit the tenant with interest at the rate of 6% per annum on the sum of $700.00 commencing April, 1998, until the landlord receives vacant possession of the rental unit.
[13] The second issue relates to the Tribunal’s Order for eviction under s.84 of the Act. The relevant statutory provisions are as follows:
84.(1) Upon an application for an order evicting a tenant or subtenant, the Tribunal may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the order of eviction be postponed for a period of time.
(2) Without restricting the generality of subsection (1), the Tribunal shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.
[14] The eviction matter appears to involve a question of mixed fact and law which is not subject to appeal under s.196(1) of the Act. It reads:
Any person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
[15] If subject to review, this Court concluded in Smolcec v. Longhouse Village (Thunder Bay) Inc. [2001] 143 O.A.C. at 137, that when the Tribunal is dealing with a question of law, which falls within its jurisdiction and expertise, particularly the eviction provisions under s.84, the standard of patent unreasonableness should apply. It is well settled law that to be characterized as patently unreasonable, a decision must be “clearly irrational” or “so flawed that no amount of curial deference can justify letting it stand.” See, for example, Ryan v. Law Society (New Brunswick) 2003 SCC 20, [2003] 1 S.C.R. 247 (S.C.C.). In any event, a Court, on appeal, will afford a specialized tribunal a great deal of deference.
[16] The adjudicator in the instant case found on the evidence that the tenant had failed to pay the total rent required for the period from June 1, 2004 to July 31, 2004 and that the deduction of the cost of the mailbox rental from the payment of rent was not authorized. She allowed the landlord’s application and ordered that the tenancy be terminated. Upon further Application, the tenant’s request to review the decision was denied. The decision of the Tribunal Member regarding s.84 was not, in our view, patently unreasonable. We would not interfere with it.
[17] Thus, the tenant’s appeal is allowed in part. The July 30, 2004, Order of Tribunal Member Elizabeth Beckett of the Ontario Rental Housing Tribunal, terminating the tenancy is confirmed, save and except that the amount of interest credited to the tenant shall be 6% per year on the rental deposit of $700.00 from April, 1998, until the landlord receives vacant possession of the rental unit.
[18] As there has been divided success and the respondent landlord failed to file his responding materials within the prescribed time limits, there shall be no Order as to costs of this application.
[19] The writ of possession shall not be acted upon for two months from today’s date. The tenant shall pay current rent in the interim.
GREER J.
CHAPNIK J.
LAX J.
Date of Release: October 12, 2005
COURT FILE NO.: 480/04
DATE: 20050915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, CHAPNIK AND LAX, JJ.
B E T W E E N:
626114 & 626115 ONTARIO LTD.
Landlord
(Respondent in Appeal)
- and -
LISA M. TIRADO
Tenant
(Appellant)
ORAL REASONS FOR JUDGMENT
CHAPNIK J.
Date of Release: October 12, 2005