Citation and Court Information

CITATION: Pfeiffer v. Kanco-49 Vanier Ltd., 2010 ONSC 3316

DIVISIONAL COURT FILE NO.: DC-09-172

DATE: 2010-07-20

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Transglobe Property Management Services Ltd.

• and – Doug Pfeiffer

BEFORE: Jennings, Wilton-Siegel and Koke JJ.

COUNSEL: Doug Pfeiffer, Self-Represented, Appellant/Tenant Kristin A. Carnie, for the Respondent/Landlord

HEARD AT HAMILTON: May 31, 2010

ENDORSEMENT

THE COURT

[1] The Appellant has appealed a finding by the Landlord and Tenant Board (the “Board”) dated October 13, 2009 that the Appellant failed to pay rent lawfully required under the tenancy agreement pursuant to section 87(1) of the Residential Tenancies Act, 2006 S.O. 2006, c.17 (the “Act”). The decision was, in turn, based on a previous finding of the Board dated October 1, 2008, which permitted an above-guideline rental increase by the Landlord that was not appealed by the Appellant.

[2] The Appellant disputes the amount of rent charged for his unit, which was the amount authorized by the Board in its earlier decision. The Appellant relies on a letter of the Landlord dated October 21, 2008 stating that the Appellant’s new rent was $797.63, the guideline increase under the Act, rather than $815.48, which was the amount authorized by the Board in its earlier decision. In the same letter, however, the Landlord indicated that there was an outstanding amount of $86.58, which was calculated by reference to the higher authorized rate since August 1, 2008.

[3] Pursuant to section 210 of the Act, any person affected by an order of the Board may appeal to this Court within 30 days after being given the order but only on a question of law.

[4] The Appellant has raised six issues regarding the decision of the Board.

[5] First, he argues that the Board erred in law in ruling that the landlord satisfied the requirement in section 116 of the Act that tenants be given 90 days notice of any proposed rent increase.

[6] The Landlord gave notice on or before April 30, 2008 of a proposed rate increase of 3.82% to be effective August 1, 2008 in respect of the Appellant, which included the above-guideline increase sought by the Landlord in an application it had commenced before the Board. The Board considered the application on August 13, 2008 and rendered its decision on October 1, 2008, approving a rent increase of 3.67%.

[7] The Appellant argues that the required notice could only have been validly given after receipt of the Board’s decision. It is not clear from the Board’s decision that this issue was argued before the Board. We have, however, proceeded on the basis that the Appellant raised this issue and that, in upholding the Landlord’s calculation of rent owing by the Appellant, the Board interpreted the 90-day period in section 116 to commence with delivery of the proposed rent increase even though the Board was required to approve the portion of the rent increase above the guideline amount.

[8] We are satisfied that the Board did not err in proceeding on this basis. The Board had authority under section 126(10) of the Act to order that the above guideline rent increase became effective on the increase date for the Appellant’s unit, being August 1, 2008. In these circumstances, the Board did not err in concluding that the Landlord had satisfied the requirements of section 116 of the Act regarding notice to the Appellant of the proposed rent increase by giving notice on or before April 30, 2008 of a proposed increase in the amount sought by the Landlord in its application before the Board.

[9] Second, the Appellant argues that the Board erred in law in ruling that the Landlord’s application was made on the date it was filed. We are of the view, however, that the Board proceeded correctly in ruling that the landlord’s application was made on the date it was filed at the Board. On this basis, we are satisfied that the Landlord satisfied the requirements of section 126(3) of the Act.

[10] As a related matter, the Appellant says the Board erred in finding that he was served with the notice of rent increase. The finding that the Appellant was served with a copy of the notice of rent increase was a finding of fact by the Board that cannot be addressed on this appeal.

[11] Third, the Board found that the reference to rent of $797.63 in the Landlord’s letter of October 21, 2008 was a clerical error. The Appellant argues that there was no mistake ─ that the Landlord intended to establish that particular rental rate as an inducement to keep the tenant in the premises. This is also a factual determination that cannot be addressed on this appeal. However, we note that, given that finding, the Board was correct in excluding any consideration of the Appellant’s submission that principles of novation of contract, contra proferentum or estoppel should apply.

[12] Fourth, in his factum, the Appellant raised an issue of laches based on the fact that the Landlord did not commence the current proceeding until July 2009. While there is no legal basis for applying the doctrine of laches in these circumstances, the clerical error of the Landlord is relevant in the consideration of the costs sought by the Landlord addressed below.

[13] Fifth, the Appellant raised an issue regarding the power of the Board to make the orders set out in its decision. The Appellant relied on the decision of the Court of Appeal in Reference Re: Residential Tenancies Act, [1980] O.J. No. 3504 (C.A.). However, that decision has been followed by the Supreme Court decision in Reference Re: Amendments to the Residential Tenancies Act (N.S.), 1996 259 (SCC), [1996] S.C.J. No. 13, which confirmed the validity of the conferral of jurisdiction over residential tenancies to a provincially appointed tribunal by provincial legislatures for the purposes of section 96 of the British North America Act, 1867. We are therefore satisfied that the Board did not exceed its authority in making the orders set out in its decision.

[14] Lastly, the Appellant submits that the Board erred in not awarding costs to the Appellant for the month’s delay and necessary re-attendance. Costs are discretionary to the Board, rather than issues of law. We cannot address this submission on the appeal.

[15] Based on the foregoing, the appeal is dismissed.

[16] The Landlord seeks its costs of this proceeding. We have concluded, however, that costs are not warranted in the present circumstances given the fact that the Landlord’s clerical error has resulted in some financial hardship to the Appellant.

Jennings J.

Wilton-Siegel J.

Koke J.

Released: July 20, 2010