DIVISIONAL COURT FILE NO.: 05/74282
DATE: 20060405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., HEROLD and WHALEN JJ.
B E T W E E N:
731229 ONTARIO LIMITED
P. LASSALINE, for the Appellants (Plaintiffs)
- and -
MARY BARRETT, DAVE BURTCH, JOAN COOK, AUTUMN CREBER, GARY DARGLE, MARIE GRAHAM, JOAN HOLMES, ED KENNEDY, JUNE McKENZIE, BRENDA MORGAN, DOROTHY NELSON, LORRAINE PADGETT, GAIL PARSONS, ELIZABETH RICHARDSON, MARION SCOTT, JANET SKINNER, HEATHER SMITH, LEO SPIERING, MARY TIMMERMANS, ART VOWELLS, MILLE BONNER, JUDI BURTCH, DONNA CORDELL, JAMES CROSBIE, VICTORIA FRANCIS, AUDREY HEITZNER, ARLENE INGRAM, ED LEBLANC, JOHN McSWEENEY, DOROTHY NELSON, GLADYS O’LEARY, DARLENE PALMER, DAVID PENNEY, BETTY SCHULTZ, LYNN SHEDLER, ERMA SMITH, LOUISE SMITH, PATRICIA STEWART, REVERTA TRAINER, THELMA WILSON
M. HEFFERON, for the Respondents (Defendants)
Heard in Newmarket: March 13, 2006
ORAL REASONS FOR JUDGMENT
CUNNINGHAM, ACJ. (Orally)
[1] This is an appeal from a decision of the Ontario Rental Housing Tribunal, dated December 16th, 2005.
[2] The issue had to do with the legality of monthly administrative fees over and above the cost of hydro charged to the tenants.
[3] The O.H.R.T. decided the issue to be under its jurisdiction, as the tenants had no choice but to purchase hydro from the appellant. While the appellant billed hydro separately, the additional amount, it determined, formed part of the rent.
[4] The respondents argue that the Tenant Protection Act takes precedence over all other legislation except legislation involving human rights.
[5] The appellant urges that the O.H.R.T. was without jurisdiction and that the billing issue ought to have been brought before the Ontario Energy Board.
[6] Both sides say the standard of review is reasonableness.
[7] We are of the view that the Tenant Protection Act must be given paramouncy as it constitutes remedial legislation, which ought to be liberally interpreted.
[8] While the Ontario Energy Board asserts paramouncy through a regulation, we conclude that that Tenant Protection Act provision trumps it.
[9] In the present case the existing tenants were provided hydro as part of their rent. The additional charges constituted illegal rent.
[10] The Tenant Protection Act, under s.14(1)(ii), states that the landlord may increase rent by the actual cost to the landlord of the service, facility, privilege, accommodation or other thing that is the subject of the agreement.
[11] Section 129 of the Tenant Protection Act states that a landlord may increase rent during the tenancy by no more than the guideline, except in accordance with sections 130 to 139, without applying for an increase.
[12] The O.R.H.T. member found the landlord had added charges to the amount billed for hydro illegally and that they had to be refunded.
[13] We find that decision to be reasonable. Even on a standard of correctness we would have found the decision to be correct.
[14] The appeal is dismissed.
CUNNINGHAM, A.C.J.
HEROLD, J.
WHALEN, J.
Released: April 5, 2006
COURT FILE NO.: 05/74282
DATE: 20060405
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE Newmarket, Ontario
B E T W E E N:
731229 ONTARIO LIMITED
Appellants (Plaintiffs)
- and –
MARY BARRETT, DAVE BURTCH, JOAN COOK, AUTUMN CREBER, GARY DARGLE, MARIE GRAHAM, JOAN HOLMES, ED KENNEDY, JUNE McKENZIE, BRENDA MORGAN, DOROTHY NELSON, LORRAINE PADGETT, GAIL PARSONS, ELIZABETH RICHARDSON, MARION SCOTT, JANET SKINNER, HEATHER SMITH, LEO SPIERING, MARY TIMMERMANS, ART VOWELLS, MILLE BONNER, JUDI BURTCH, DONNA CORDELL, JAMES CROSBIE, VICTORIA FRANCIS, AUDREY HEITZNER, ARLENE INGRAM, ED LEBLANC, JOHN McSWEENEY, DOROTHY NELSON, GLADYS O’LEARY, DARLENE PALMER, DAVID PENNEY, BETTY SCHULTZ, LYNN SHEDLER, ERMA SMITH, LOUISE SMITH, PATRICIA STEWART, REVERTA TRAINER, THELMA WILSON
Respondents(Defendants)
ORAL REASONS FOR JUDGMENT
CUNNINGHAM A.C.J., HEROLD and WHALEN, JJ.
Released: April 5, 2006