L & T FILE NO.: SOL- 45450-14
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: MILLENNIUM PROPERTY MANAGEMENT AND 1694589 ONTARIO INC. v. MARISA DMYTRASZKO
BEFORE: Justices Swinton, Mullins and Fregeau
COUNSEL: Fred Spencer, for the Appellants
Marisa Dmystraszko in person
HEARD AT HAMILTON: September 28, 2015
E N D O R S E M E N T
1The appellants appeal decisions of the Landlord and Tenant Board (“the Board”) dated March 7, 2014 and May 6, 2014 awarding the respondent tenant $1,252 for excess rent and filing costs. After oral argument, the Court dismissed the appeal with reasons to follow. These are the reasons for the decision.
2The appellants raised four arguments. First, they argued that the respondent was not a Hamilton resident when she filed her application with the Board, and this precluded her from filing in Hamilton.
3It is not evident that this argument was raised before the Board. In any event, there is no merit to the argument. At the time of the application in February 2014, the respondent was still paying rent for the unit in Hamilton.
4Second, the appellants argued that the Board failed to consider that s. 118 of the Residential Tenancies Act, S.O. 2006, c. 17 (the “RTA”) would deem that the respondent accepted the rental increases, because she failed to file notice to terminate her lease after receiving notice of the rental increase.
5Section 118 states:
A tenant who does not give a landlord notice of termination of a tenancy under section 47 after receiving notice of an intended rent increase under section 116 shall be deemed to have accepted whatever rent increase would be allowed under this Act after the landlord and the tenant have exercised their rights under this Act.
6The appellant argued that the respondent paid the increased rent from around June 2011 to February 2014 when she brought her application.
7The Board, in the review decision, found that the respondent had not been given proper notice of the rental increases in accordance with s. 116 of the RTA and, therefore, s. 118 did not apply. The appellant conceded before the Board, on the review, and before this Court, that the notices required by s. 116 of the RTA had not been given. The Board also rejected the appellants’ argument that the respondent agreed to the increased rent as a payment for parking. Given the evidence, the Board made no error in concluding that s. 118 did not apply.
8The appellants’ third argument was based on s. 136 of the RTA, which states:
- (1) Rent charged one or more years earlier shall be deemed to be lawful rent unless an application has been made within one year after the date that amount was first charged and the lawfulness of the rent charged is in issue in the application.
(2) An increase in rent shall be deemed to be lawful unless an application has been made within one year after the date the increase was first charged and the lawfulness of the rent increase is in issue in the application.
9The Board, after the initial hearing, held that the rental increases were invalid because they exceeded the amount permitted under the legislation. On review, the Board rejected the appellants’ argument that the parties had agreed in 2011 to the rental increase as a payment for parking. The Board also held that the required notice under s. 116 had not been given.
10Neither decision addressed s. 136 of the RTA, and the material filed in the request for a reconsideration does not mention s. 136. In any event, s. 136 does not apply here. The Court of Appeal in Price v. Turnbull’s Grove Inc., 2007 ONCA 408 held that the predecessor section to s. 136 did not apply where an increase in rent was void, rather than unlawful (at para. 33).
11Subsection 116(4) provides that an increase in rent is void if the landlord does not give the notice required in s. 116. That notice must be in writing, in a form approved by the Board, and given at least 90 days before the increase takes effect. In the present case, the Board, on review, found that the appellants failed to give proper notice of the rent increases. Accordingly, the rent increases were void, and s. 136 does not bar the respondent from recovering the rent increases paid.
12Finally, the appellants suggested that the Board member conducting the review improperly communicated with the Board member who made the original decision, contrary to the Board’s guidelines. There is no evidence to support this allegation. Moreover, the fact the Board member made reference to the earlier decision is consistent with his obligation to review the decision.
13For these reasons, the appeal is dismissed. The respondent does not seek costs.
Swinton J.
Mullins J.
Fregeau J.
DATE: September , 2015