Toronto Community Housing Corporation v. Allan Vlahovich
CITATION: Toronto Community Housing Corporation v. Allan Vlahovich, 2010 ONSC 1686
DIVISIONAL COURT FILE NO.: 603/08
DATE: 20100318
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND DAMBROT JJ.
BETWEEN:
TORONTO COMMUNITY HOUSING CORPORATION Landlord (Appellant)
– and –
ALLAN VLAHOVICH Tenant (Respondent in Appeal)
Mary Boushel, for the Landlord
In Person
HEARD at Toronto: March 18, 2010
ORAL REASONS FOR JUDGMENT
DAMBROT J. (orally)
[1] Toronto Community Housing (the “Landlord”) appeals from the order of Member Ruth Carey of the Landlord and Tenant Board (the “Board”) dated August 5, 2008 and the review order of Member Jana Rozehnal dated October 27, 2008, each made in relation to an application brought by Allan Vlahovich (the “Tenant”) on January 16, 2008. In these decisions, the Board ordered the tenant’s eviction, subject to him paying arrears. The Board also ordered a rent abatement which reduced the arrears to $74.50. The tenant has paid this amount, and so the eviction has been declared void.
[2] This appeal raises the following issue:
Did the Board err in law in awarding an abatement of rent to the tenant for a period prior to the commencement of the one year limitation period mentioned in s.29(2) of the Residential Tenancies Act, 2006?
[3] An appeal to this Court from a decision of the Board may be brought only on a question of law. Except where the decision appealed from involved an exercise of discretion, the standard of review is correctness (see Caputo v. Newburg (2009), 251 O.A.C. 57 (Div. Ct.)).
[4] The issue in this appeal falls to be determined solely on the interpretation of the Residential Tenancies Act, 2006, and as a result raises a pure question of law. That question of law is a question of general application.
[5] The provisions of the Act that are relevant here are as follows:
Landlord’s responsibility to repair
20(1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Tenants applications
29(1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:
- An order determining that the landlord has breached an obligation under subsection 20(1) or section 161.
Time limitation
(2) No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.
Order, repair, comply with standards
30(1) If the Board determines in an application under paragraph 1 of subsection 29(1) that a landlord has breached an obligation under subsection 20(1) or section 161, the Board may do one or more of the following:
- Order an abatement of rent.
[6] In this case, the Board found that since December 2004 there had been a series of floods in the rental unit that caused extensive water damage. Major work was required to repair the floors and other parts of the apartment as a result of the water damage. The landlord made numerous efforts to repair some of the problems in the unit but never attempted to repair the badly damaged second bedroom and the bedroom floors. The tenant frustrated many of the efforts to repair the unit but in February 2007 work was commenced. As a result of the damage, the Board concluded that a fifty percent abatement of rent from January 2005 to July 2007 was justified, amounting to $5,826.05.
[7] The landlord requested a review of this order. One of the issues raised on the review involved the proper interpretation of s.29(2) and s.30(1) of the Residential Tenancies Act, 2006. Section 29(2), as relevant here, when read together with s.29(1) and s.20(1) of the Act, provides that no application may be made for an order determining that the landlord has breached the obligation to maintain a rental unit in a residential complex in a good state of repair more than one year after the day the alleged conduct giving rise to the application occurred. Where the Board determines under s.29(1) that the landlord has breached the obligation to maintain a rental unit in a good state of repair, section 30(1) permits the Board to order an abatement of rent.
[8] The landlord argued that having regard to the statutory scheme, the Board only had jurisdiction to award the remedy of abatement to the tenant back to January 16, 2007, a date one year prior to the bringing of the tenant’s application. The Board concluded that while s.29(2) provides a one year limitation period for bringing an application under s.29(1), it does not create a limitation on the available remedy found in s.30. We do not agree.
[9] It is plain from the language of s.30(1) that the Board can only order a remedy under that provision in relation to a determination in an application under paragraph 1 of subsection 29(1) that a landlord has breached an obligation under subsection 20(1). In light of the one year limitation period in s.29(2), the Board can only make a determination that a landlord has breached an obligation under s.20(1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one year period. While evidence of events prior to the commencement of the one year period may be admissible at a hearing before the Board, for example, to enable the Board to understand the cause of the disrepair, this does not permit the Board to extend the remedy back to a time prior to the commencement of the statutory limitation period.
[10] Our conclusion is consistent with the case law concerning limitation periods in respect of claims for nuisance (see Roberts v. City of Portage La Prairie, 1971 128 (SCC), [1971] S.C.R. 481 (S.C.C.)). Member Rozehnal attempted to distinguish Roberts and similar cases that were brought to her attention on the basis that they involved the common law tort of nuisance rather than a statutory remedy and that the statutory limitation periods considered in those cases were worded differently from s.29(2).
[11] We see nothing in these distinctions that rises to the level of principle. There is no reason that the approach taken to this issue in Roberts should not be taken here. In addition, properly understood, the decision of this Court in Goodman v. Menyhart, [2009] O.J. No. 1602 is not inconsistent with our approach. In that case the Court ordered that an abatement extend back one year before the application had been made and no further. The only issue in that case was whether the limitation period should extend back twelve months from the order of the Board or from the filing of the application.
[12] The Member went on to say that the construction that we propose to place on s.29(2) is inconsistent with the remedial nature of the Act and could lead to absurd results. We do not consider it to be inconsistent with the remedial nature of the Act or capable of leading to absurd results to limit the remedy of the abatement to a one year period prior to the bringing of an application for abatement. It is hard to imagine why it would be absurd to encourage tenants to commence their applications for abatements for disrepair within one year after the condition of disrepair commences or comes to their attention.
[13] Accordingly, we conclude that the Board erred in law in allowing an abatement of rent prior to the one year period preceding the making of the application.
[14] The appeal is allowed and the following relief is granted:
(a) the order dated October 27, 2008 in file PSL-87099-RV and TST-01120-RV is set aside;
(b) paragraph 4 of the Notice and Direction dated August 29, 2008 in file PSL-87099-RV declaring the order of August 4, 2008 void is struck;
(c) the order dated August 4, 2008 in files TSL-87099-RV and TST-01120-RV is set aside and replaced with an order:
(i) terminating the tenancy on April 30, 2010;
(ii) for a payment of $9,096.25 to the landlord on or before April 30, 2010;
(iii) for payment of $30.77 per day for compensation for the use of the rental unit starting February 1, 2009 to the date the Tenant moves out of the unit;
(iv) for simple interest in the amount of 5% annually on the balance outstanding;
(v) allowing the landlord to file the order with Court Enforcement if the unit is not vacated;
(vi) directing the Court Enforcement Office to give vacant possession of the unit to the landlord after the termination date set out in the order; and
(vii) allowing the tenant to void the eviction upon payment of $9,096.25 and per diem compensation, on or before April 30, 2010.
[15] In setting on the amount that the tenant must pay to the landlord we have taken into account an increase in the monthly rent to $936.00 commencing in October 2009. We are entitled to do so by virtue of s.210(4) of the Act.
JENNINGS J.
I have endorsed the back of the Record, “This appeal is allowed for oral reasons delivered today. Orders under appeal set aside. Relief granted as set out in reasons. Approval of order by respondent dispensed with. No costs being demanded, none ordered.”
DAMBROT J.
JENNINGS J.
FERRIER J.
Date of Reasons for Judgment: March 18, 2010
Date of Release: April 12, 2010
CITATION: Toronto Community Housing Corporation v. Allan Vlahovich, 2010 ONSC 1686
DIVISIONAL COURT FILE NO.: 603/08
DATE: 20100318
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND DAMBROT JJ.
BETWEEN:
TORONTO COMMUNITY HOUSING CORPORATION Landlord (Appellant)
– and –
ALLAN VLAHOVICH Tenant (Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: March 18, 2010
Date of Release: April 12, 2010