CITATION: Nejad v. Preddie, 2016 ONSC 4348

DIVISIONAL COURT FILE NO.: 327/15

LANDLORD AND TENANT COURT FILE NOS.: TNL-62997-14, TNT-64922-14 and TNT-64160-14

DATE: 20160719

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J.S.C., DAMBROT and PATTILLO JJ.

B E T W E E N :

SEYED MOHAMMAD REZA SHOBEIRI NEJAD

Landlord/Respondent

– and –

CLIVE H. PREDDIE

Tenant/Appellant

Clive H. Preddie, in person

David Strashin, for the Landlord/Respondent

HEARD: June 24, 2016

M. DAMBROT J.:

[1] The tenant appeals pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) from the order of the Landlord and Tenant Board (the “Board”) dated March 31, 2015 (the “order”) in which the Board ordered the tenant to pay $15,078.70 to the landlord. The Board calculated this amount by subtracting an abatement of $2,221.30 from the amount of rent owing from the tenant to the landlord from April 13, 2014 to March 12, 2015. This amount was found to be due to the tenant on account of the landlord failing to meet his maintenance obligations and substantially interfering with the tenant’s reasonable enjoyment of the rental unit. The Board also ordered the tenant to pay $170 to the landlord for the cost of filing the application.

[2] The tenant requested a review of the order pursuant to s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. On April 29, 2015, the request was denied.

Background

[3] In March 2013, the landlord and the tenant negotiated a written lease for a rental dwelling with a monthly rent of $1,850.00. The tenant paid the first and last months’ rent in advance and also provided ten post-dated rental cheques to the landlord. The tenant moved into the dwelling on March 13, 2013.

[4] On March 31, 2014, the landlord provided the tenant with a “notice of rent increase” in form N2 (the “N2”) dated February 13, 2014 and seeking a monthly increase of $650 as of May 15, 2014, resulting in a monthly rent of $2,500. The N2 did not comply with the requirement in s. 116(1) of the Act that notice be given at least 90 days before an increase may be charged.[^1]

[5] On July 24, 2014, the landlord issued a “notice to end a tenancy early for non-payment of rent in Form N4 (the “N4”). In the N4, the landlord alleged that rent was unpaid from April 13, 2014. The N4 identifies the landlord’s counsel as the landlord’s agent and further identifies the business address of counsel as the landlord’s agent’s address. The N4 was served on the tenant on July 26, 2014.

[6] On October 2, 2014, the landlord filed an “application to evict a tenant for non-payment of rent and to collect rent the tenant owes” in Form L1 (the “L1”). The L1 form includes a section entitled “Information for the Tenant from the Landlord and Tenant Board” which explains the various options available to the tenant in the face of a landlord’s application. Of particular relevance here, the document advises the tenant that if the tenant does not agree with the amount the landlord claims the tenant owes, and if the landlord and tenant cannot agree on a different amount, the tenant “will have to go to the hearing”, and

[a]t the hearing, you can explain why you disagree with the amount the landlord claims you owe and why you think you should not be evicted. If the Board decides that you owe money, you can ask for more time to pay it. You will also be able to raise other issues such as maintenance problems and harassment. It is important that you bring evidence to support your case.

[7] In the landlord’s L1, he provided his name and address, which once again is the address of his lawyer, and alleged that the tenant is required to pay rent monthly, that the landlord holds rent in the amount of $1,850 on deposit which was collected on March 12, 2013, and that a total of $10,000 in rent was owed as follows:

From April 13, 2014 to May 12, 2014: $2,500.00

From May 13, 2014 to June 12, 2014: $2,500.00

From June 13, 2014 to July 12, 2014: $2,500.00

From July 13, 2014 to August 12, 2014: $2,500.00

[8] The allegation that $2,500.00 was owed for each of these one month periods rather than $1,850 was based on the assumption that the rent increase reflected in the N2 was validly sought.

[9] On October 20, 2014, the landlord filed an “application - information update as of the hearing day” in Form L1/L9 (the “first L1/L9”). A Form L1/L9, amongst other things, permits a landlord to either indicate that the rent shown on the application has changed, or confirm that it has not changed, indicate that the tenant has or has not made additional payments, and indicate whether or not additional rent has come due since the application was filed. Of significance, the form requires the landlord, the landlord’s legal representative or the landlord’s agent to make a declaration in writing that the information contained in the document is true.

[10] In this case, the landlord’s legal representative declared that: the rent shown on the application ($2,500 per month) had not changed, the tenant has made no further payments in respect of the outstanding rent (in other words, the entirety of the previously outstanding $10,000 in rent remained unpaid), and that the following additional rent had become due:

From August 13, 2014 to September 12, 2014: $2,500.00

From September 13, 2014 to October 12, 2014: $2,500.00

[11] As a result, the landlord’s legal representative declared that $15,000 in rent was outstanding.

[12] The hearing of the L1 commenced before Landlord and Tenant Board Member Sangmuah on October 21, 2014. At the outset of the hearing, the Member asked the tenant if he was disputing the application and the rent arrears. The tenant did not respond to the question, but instead launched into a preliminary motion. The tenant then took the position that the increase in his rent was unlawful because the landlord had not given him 90 days’ notice of his intention to increase the rent.

[13] In support of his motion, the tenant filed the landlord’s N2 seeking an increase of monthly to $2,500 as of May 15, 2014, and pointed out that the date of service was said to be March 31, 2014, less than 90 days before the increase. As a result, the tenant argued that the N2 was “flawed”, and that the Member had no jurisdiction to proceed on an N4 arising out of a flawed N2. When asked by the Member what his previous rent was, the tenant replied that it was $1,850.[^2]

[14] The Member did not accept the tenant’s position. He explained that when a notice of rent increase is void, the landlord cannot obtain an order of eviction, but has the option of pursuing the outstanding arrears of rent without the increase and without termination of the lease. In the face of the position taken by the Member, the landlord conceded that the N2 was flawed, and elected to proceed “on the basis of the rent in the agreement to lease which is $1,850 per month rather than the $2,500 per month.” He also agreed that there would be no termination attached to any order for arrears.

[15] At this point, the tenant asked that the matter before the Board be adjourned so that he could raise certain “Section 82 issues”. Section 82 (1) provides that at a hearing of an application by a landlord for an order terminating a tenancy, the Board shall permit the tenant to raise any issue that could be the subject of an application made by the tenant under this Act. I note that s. 87(2) provides that S. 82 is applicable, with necessary modifications, to a landlord’s application for an order for the payment of arrears of rent under s. 87(1). The tenant had not previously advised the member that he intended to raise s. 82 issues. However he asked for two weeks to be able to compile “many issues” that he said would result in a substantial rebate of rent.

[16] The landlord took objection to the adjournment to permit the tenant to seek a rebate in view of the fact that the tenant had not paid rent for six months. When the Member raised the prospect of requiring the tenant to pay money into court in the interim, the tenant denied that he had been seeking an adjournment, but instead needed time to prepare a separate application for a rebate.

[17] The Member then offered to deal with the landlord’s application that afternoon, but make any order he might make payable into the Board pending the tenant’s application. The tenant replied that he was not available that afternoon. As a result, the Member adjourned the matter, and ordered the tenant to pay $1,850 into the Board by October 31, 2014.

[18] The matter came back before the member on January 8, 2015. On this occasion, in addition to the landlord’s original application, there were two new applications before the Board:

1. the tenant’s application for an order that the landlord failed to meet his maintenance obligations under the Act (Board file: TNT-64160-14); and

2. the tenant’s application for an order that the landlord substantially interfered with his reasonable enjoyment of the rental unit (Board file: TNT-64922-14).

[19] At the outset of the hearing, the tenant advised the member that he had paid $1,850 into court, as required, on October 29, 2014. The tenant then confirmed that because the notice of rent increase was flawed, “it was agreed that we’d proceed at the lower amount of $1,850.” The Member confirmed this understanding. The Member then asked counsel for the landlord for an update.

[20] Counsel replied that “no additional monies other than the payment to the tribunal have – have been made.” The tenant did not take issue with this assertion, but indicated that he wanted to proceed with his applications first. The Member then replied to the tenant, “So, based on what you’ve paid, we know what the arrears would be. Now we have to determine whether the landlord owes you a rent abatement which you can set off against…”

[21] The tenant did not agree that they knew what the arrears were, but not because of any suggestion that the outstanding rent had been paid. Rather, he wanted to raise an issue arising out of s. 12 of the Act. As a result, the parties and the Member agreed that the tenant’s applications would proceed first.

[22] The tenant then argued that the landlord had failed to comply with s. 12(1) of the Act, which provides:

Every written tenancy agreement entered into on or after June 17, 1998 shall set out the legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act.

[23] The tenant submitted that the lease agreement listed the landlord in one place as Syed Mohammad and Reza Shobeiri Nejad, but in another place as Seyed Mohammad Reza Shobeiri Nejad, and that in various places the lease was initialled with the initials S.S., P.O.A. and S.H.O. He also pointed to certain other documents in which he said that the landlord was named differently. Finally, he noted that while the lease provided contact information for the landlord’s realtor, it did not provide the landlord’s address.

[24] The tenant then proceeded with his abatement applications, and testified on his own behalf.

[25] The matter was not completed on January 8, 2015, and continued on February 17, 2015. The tenant was cross-examined at the outset of the hearing on that date. When counsel for the landlord asked him whether he had paid the outstanding rent, he refused to answer, and argued that the question was irrelevant. The Member ruled that the question was relevant to the issue of abatement. Counsel for the landlord then asked him if he had made any payments of rent after April 17, 2014. The tenant replied, “I don’t recall.” When he was asked if he had any cancelled cheques with him for payment of rent after April 17, 2014, he replied that he did. When asked to produce them, he refused.

[26] At the end of the cross-examination, the Member turned to the landlord’s application for arrears, and invited the landlord, in accordance with the Board’s practice, to provide an updated L1/L9. He noted that ordinarily, “when there is a money issue, the landlord prepares an L1/L9 update and – on that basis, if the tenant has any issues with the update then they can be addressed.”

[27] The landlord had not prepared an updated L1/L9, and asked for time to prepare one. The tenant offered, instead, to “just … suggest to the Board whether he’s received any rents since the October L9.” The Member preferred not to depart from the Board’s practice, and took a recess to permit the landlord’s counsel to prepare an update. When the hearing resumed, the landlord produced an updated L1/L9. In this document, the landlord corrected the previous documents to reflect that the rent owed for the periods referred to in them was $1,850 and not $2,500, and declared that the following additional rent had become due:

from October 13, 2014 to November 12, 2014: $1,850.00

from November 13, 2014 to December 12, 2014: $1,850.00

from December 13, 2014 to January 12, 2015: $1,850.00

from January 13, 2015 to February 12, 2015: $1,850.00

from February 13, 2015 to March 12, 2015: $2,500.00

He also confirmed that no rent had been paid from April 13, 2014 to date.

[28] I note that the increased rent as of February 13, 2015 flowed from a second N2 which was not challenged at the hearing before the member.

[29] When asked if he agreed with the document, the tenant only said that he didn’t agree “that April’s rent has not been paid.” When the Member invited the tenant to produce a cancelled cheque for April to resolve the dispute, he refused.

[30] After hearing the submissions of the parties, the Member issued an order in relation to all of these applications on March 31, 2015. He made the following determinations:

1. The tenant had not paid the rent that he was required to pay for the period from April 13, 2014 to March 12, 2015.

2. While the lease did not set out the address of the landlord, the landlord subsequently identified the landlord’s counsel as the landlord’s agent, provided the business address of counsel and stated that the landlord’s address is his counsel’s business address. This complies with s. 12, which only requires the provision of an address for notice of documents, and not a personal address.

3. The landlord failed to meet his obligation to maintain the rental unit under s. 20(1) of the Act, and the tenant was entitled to an abatement of rent of $1,400.00 for lack of repair to the doors for 14 months and the expense incurred in repairing the refrigerator and plumbing in the amount of $576.30.

4. The tenant lost the use of his parking spot for four months and was entitled to an abatement of rent of $50.00 per month.

5. The tenant was not compensated for the loss of the use of the condominium swimming pool while it was being repaired because he did not establish that the temporary closure was avoidable and of unreasonable duration or that he otherwise made use of the pool.

6. The tenant was not compensated for having to use a faulty key fob for the garage because he did not complain about it, and because he is responsible for the care and replacement of the fob.

[31] As a result, the member:

1. ordered the landlord pay the tenant an abatement of $1,600 of rent and $576.30 for the cost of repairs together with the tenant’s $45.00 filing fee;

2. authorized the tenant to repair or replace two doors and deduct the cost from rent;

3. ordered the tenant to pay the landlord $15,078.70 representing rent owing up to March 12, 2015, less the above abatement and repairs ($2,221.30) plus the landlord’s $170 filing fee; and

4. ordered the $1,850 paid into the Board to be paid out to the landlord.

[32] The tenant sought a review of the order of the Member pursuant to s. 21.2 of the Statutory Powers Procedure Act and Rule R. 29.1 of the Rules of Practice of the Landlord and Tenant Board.

[33] The review was heard by Member Pernal on April 30, 2015. On May 29, 2015 the Member issued an order denying the request to review the orders of Member Sangmuah.

The Grounds of Appeal

[34] The appellant raised a great number of arguments in his factum, but focussed on the following submissions in his oral argument:

1. The Board had no jurisdiction to continue with the Landlord’s application for arrears of rent given that the Landlord’s Notice to Terminate the Tenancy (N4 Notice) was defective

2. The Board erred in determining the arrears of rent in the absence of any evidence

3. The Board erred in concluding that the Landlord’s counsel’s address was sufficient to satisfy the requirements of s. 12 of the Act

4. The Board erred in holding that his claim for repairs/deficiencies was limited to only one year prior to the application pursuant to s. 29(2) of the Act

The Standard of Review

[35] An appeal lies to the Divisional Court from an order of the Board on a question of law pursuant to s. 210(1) of the Act. The standard of review of decisions of the Landlord and Tenant Board when interpreting and applying its home statute, regulation and rules is reasonableness (see First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54, 274 O.A.C. 338).

[36] In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board's reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47).

Analysis

[37] I will consider each of the grounds of appeal raised by the tenant in turn.

Does the Board Have Jurisdiction to Hear the Landlord’s Application for Arrears of Rent when the Landlord’s Notice to Terminate the Tenancy is Defective?

[38] A landlord may give a tenant notice of termination of the tenancy (referred to as an N4) if a tenant fails to pay rent owing under a tenancy agreement pursuant to s. 59(1) of the Act. Section 59(2) provides that the notice of termination shall set out the amount of rent due and specify that the tenant may avoid the termination of the tenancy by paying the rent due on or before the termination date specified in the notice. Section 59(3) provides that the notice is void if the tenant pays the arrears.

[39] Section 69(1) of the Act provides that a landlord may apply to the Board for an order terminating a tenancy and evicting the tenant (referred to as an L1) if the landlord has given notice to terminate the tenancy under the Act. Section 74(2) provides that an application under s. 69 shall be discontinued if, before the Board issues the eviction order, the Board is satisfied that the tenant has paid the arrears.

[40] In Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.), the tenant appealed an order terminating a tenancy under the Tenant Protection Act, 1997, S.O. 1997, c. 24 following service of a Notice to Terminate a Tenancy Early in Form N5 under that Act. As with the N4 here, the Tenant Protection Act required that the notice set out the grounds for termination. The Court found that the notice was seriously deficient in that it failed to provide details about the reason for notice, was void as a result, and that the Member had no jurisdiction to make the order requested.

[41] The Court reasoned, at para 11:

A notice by a landlord under section 64 of the Act, in addition to being a formal Notice to Terminate a Tenancy Early, also acts as a “notice to the tenant to comply”. Accordingly, as the tenant has the option “to comply”, particulars of the allegations are essential to make the notice meaningful.

[42] That reasoning has been applied by members of the Landlord and Tenant Board acting under the Residential Tenancies Act, and has not been called into question in this appeal.

[43] I turn next to the circumstances of this matter.

[44] The story began, as I have discussed, with a flawed N2, that is, a flawed notice of rent increase. The notice was flawed because it did not comply with the requirement that notice be given at least 90 days before an increase may be charged. An N4 followed – a notice to end a tenancy early for non-payment of rent. The N4 alleged an amount of arrears consistent with the flawed N2. For this reason, and this reason alone, the N4 was found to be flawed. When the landlord’s L1 – the application to evict the tenant for non-payment of rent and to collect rent the tenant owed – came on for hearing, consistent with Ball v. Metro Capital Property, the Member concluded that he had no jurisdiction to order eviction. However, consistent with the Board’s practice, upon the landlord abandoning the eviction application, the member permitted the part of the landlord’s L1 seeking arrears to proceed.

[45] On review, Member Pernal saw no error in proceeding on an application to collect arrears despite a defective N4. He stated, at paragraph 3 of his decision:

I find that on this point there was no serious error. A party may amend its application in accordance with section 200 of the Act, and the Board may amend an application on its own motion pursuant to section 201 of the Act. The cases cited by the Landlord are more indicative of the customary practice at the Board allowing a landlord (or the Board on its own motion) to amend an L1 application following a defective N4 notice to an L9 application for arrears only which requires no separate notice to be filed with the application.

[46] The decision of member Sangmuah, as further explained by member Pernal, was an entirely reasonable one. It is difficult to resist the logic of the decision. After all, s. 87(1) of the Act authorizes a landlord to apply to the Board for an order for the payment of arrears of rent without seeking to terminate the tenancy if the tenant has not paid rent lawfully required under the tenancy agreement and the tenant is in possession of the rental unit. An N4 notice is not a prerequisite to the bringing of an application under s. 87(1). As a result, it is hard of imagine how a defective N4 could deprive the Board of jurisdiction to hear an application under s. 87(1).

[47] In addition, since an L1 application puts the tenant on notice that the landlord seeks both eviction and arrears, it is hard to imagine how depriving the landlord of the remedy of eviction but allowing the landlord to proceed with an application for arrears could possibly prejudice the tenant.

[48] I would reach this conclusion even if the Act did not specifically permit the amendment of an application. However s. 201(1)(f) of the Act permits the Board, before, during or after a hearing, on its own motion and on notice to the parties to amend an application if the Board considers it appropriate to do so and if amending the application would not be unfair to any party.

[49] The tenant complains that the Member gave no notice to the parties that he would allow the amendment of the application. In fact, the Member gave the landlord the option of pursuing the outstanding arrears of rent without the increase and without termination of the lease during the October 21, 2014 appearance. In the context of a provision that permits notice to be given before, during or after a hearing, this was sufficient notice to the parties. In any event, in light of the fact that the merits of the landlord’s application were not heard until January 8, 2015, there can be no conceivable complaint about notice.

[50] I would not give effect to this ground of appeal.

Did the Board Err in Determining the Arrears of Rent?

[51] The tenant argues that the Member erred in law in determining that there were arrears of rent in the absence of any viva voce evidence called by the landlord to establish that there were in fact arrears. He says that the Member wrongly relied on the submissions of counsel.

[52] In approaching this issue, I begin by recognizing that the efficiency and effectiveness of the residential tenancy regime is enhanced by its long history of informality. Both landlords and tenants benefit from relaxed rules of evidence and procedure, which promote access to justice. This approach is enshrined in the Landlord and Tenant Board's Rules of Practice.

[53] Rule A3.1 provides:

The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:

(a) promote the fair, just and expeditious resolution of disputes,

(b) allow parties to participate effectively in the process, whether or not they have a representative,

(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

[54] Rule A3.2 provides that rules and procedures are not to be interpreted in a technical manner.

[55] Rule R1.5 permits the Board to waive a rule, and Rule R2.2 provides that:

The LTB may decide the procedure to be followed for an application and may make specific procedural directions or orders at any time and may impose such conditions as are appropriate and fair.

[56] All of this is not to say that the rules of evidence may be so relaxed as to operate unfairly to a litigant. But in my view, that did not happen here.

[57] It is undoubtedly true that in many cases a representative of a landlord will call a witness who produces a ledger that tends to establish the existence and quantum of alleged arrears of rent. But that is not the only way that arrears may be established. In this case, the suggestion that the member’s determination of the arrears is erroneous is fanciful, as will be seen.

[58] I begin my discussion with a reference to the L1/L9 - a Board form that provides the landlord with an opportunity to update information about arrears of rent still outstanding as of the hearing day, including both payments made and new rent that is due. This document necessarily takes the form of a declaration in writing by the landlord, the landlord’s legal representative or the landlord’s agent that the information contained in the document is true. When an L1/L9 is presented to a member, the member is entitled to receive it and take it into consideration in deciding an issue concerning arrears, despite the fact that it is hearsay, both because of the rules I have referred to, and by virtue of s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22. Section 15(1) permits a tribunal to admit as evidence at a hearing any oral testimony and any document or thing that is relevant whether or not it is given or proven under oath or affirmation or admissible in evidence in a court.

[59] As a result, an L1/L9 is admissible before a member of the Board presiding over an application to recover arrears of rent, and is entitled to whatever weight the member considers appropriate in the circumstances. In considering the weight to be afforded to an L1/L9, the member may view the reliability of the document to be enhanced to some degree by the fact that it is a signed declaration. The member may also take into account the absence of any contradicting evidence.

[60] In addition, since an L1/L9 updates the content of the original application (here an amended L1), it incorporates by reference the content of the L1 respecting arrears of rent. The declarant is also declaring the original information, as amended, to be true.

[61] In this case, the Member had before him the original L1 and the first L1/L9, which together declared that the tenant owed, and had not paid, rent in the amount of $2,500 for the periods ending May 12, 2014, June 12, 2004, July 12, 2004, August 12, 2004, September 12, 2014, and October 12, 2014.

[62] The Member also had evidence that the $2,500 amounts were in error, because the rent increase sought by the landlord was invalid and incontrovertible evidence that the correct amount was $1,850, including the tenant’s admission to him that that $1,850 was the prevailing rent.

[63] In addition, the Member had before him the updated L1/L9, which corrected the amount of the previous rent, and confirmed that no rent had been paid from April 13, 2014 to February 17, 2015, the final date of the hearing.

[64] The tenant complains that this update was filed after he had testified on February 17, 2015, and accordingly deprived him of the opportunity to respond. That is not a fair characterization of what took place.

[65] On January 8, 2015, the date set for the hearing of both the landlord’s application and the tenant’s applications, the Member indicated that the landlord’s application would be heard first, followed by the tenant’s applications. The tenant strongly resisted this procedure, and wanted to proceed first with his applications. The Member was finally persuaded to permit the tenant’s approach to prevail when the landlord indicated that he did not object to it.

[66] As a result, although the landlord was invited to file the updated L1/L9 after the cross-examination of the tenant, that cross-examination was in the tenant’s application, and prior to the hearing of the landlord’s application. Lest there be any doubt about this, I note that when counsel for the landlord sought to cross-examine the tenant about arrears, he refused to answer any questions, and refused to produce any cancelled rent cheques, taking the position that he was testifying only with respect to his applications. The landlord’s application followed. The tenant had every right to testify again on the landlord’s application and provide evidence that he had paid the arrears, or some part of the arrears, but chose not to do so. As a result, he cannot complain about the timing of the filing of the updated L1/L9.

[67] In all of these circumstances, it was entirely reasonable for the Member to rely on the L1, the first L1/L9 and the updated L1/L9 in reaching his conclusion about the arrears.

[68] There were a number of additional circumstances that supported his conclusion, including:

1. When the Member asked counsel for the landlord for an update at the outset of the January 8, 2015 hearing, he replied that “no additional monies other than the payment to the tribunal have – have been made.” The tenant did not take issue with this assertion.

2. When the tenant was asked in cross-examination on February 17, 2015, whether he had paid the outstanding rent, he refused to answer. When the member ruled against the tenant, counsel for the landlord asked him if he had made any payments of rent after April 17, 2014. The tenant replied, “I don’t recall.” When he was asked if he had any cancelled cheques with him for payment of rent after April 17, 2014, he replied that he did. When asked to produce them, he refused.

3. When the Member invited the landlord to file an updated L1/L9, the tenant suggested that the landlord should “just … suggest to the Board whether he’s received any rents since the October L9.”

4. When the Member asked the tenant if he agreed with the updated L1/L9, the tenant only said that he didn’t agree “that April’s rent has not been paid.”

[69] The absence of any contradiction of the landlord’s evidence about non-payment of the arrears, together with the tenant’s refusal to take any position on the issue and his feigned memory loss, made the Member’s conclusion inevitable. Indeed, in my view, it is disingenuous for the tenant to now suggest that it was unreasonable for the Member to have found that the arrears of rent had not been paid.

[70] I note that the tenant also argues that the Member erred in concluding that the amount of the arrears of rent for the last period in issue was $2,500 rather than $1,850. But, as I have already noted, this amount reflects an increase in rent as of February 13, 2015 flowing from a second N2 which was not challenged at the hearing before the member. As a result, there is no basis to challenge its validity before this Court.

[71] I would not give effect to this ground of appeal.

Did the Board Err in Concluding that the Landlord had Complied with the Requirements of Section 12 of the Act?

[72] Section 12 of the Act provides:

(1) Every written tenancy agreement entered into on or after June 17, 1998 shall set out the legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act.

(2) If a tenancy agreement entered into on or after June 17, 1998 is in writing, the landlord shall give a copy of the agreement, signed by the landlord and the tenant, to the tenant within 21 days after the tenant signs it and gives it to the landlord.

(3) If a tenancy agreement entered into on or after June 17, 1998 is not in writing, the landlord shall, within 21 days after the tenancy begins, give to the tenant written notice of the legal name and address of the landlord to be used for giving notices and other documents under this Act.

(4) Until a landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be,

(a) the tenant’s obligation to pay rent is suspended; and

(b) the landlord shall not require the tenant to pay rent.

(5) After the landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be, the landlord may require the tenant to pay any rent withheld by the tenant under subsection (4).

[73] The tenant argued that his obligation to pay rent during the period was suspended because the landlord had not complied with s. 12(1), an argument that is obviously inconsistent with any suggestion that the arrears had been paid.

[74] As I have noted, the Member concluded that while the lease did not set out the address of the landlord, the landlord subsequently identified the landlord’s counsel as the landlord’s agent, provided the business address of counsel, in effect stating that the landlord’s address is his counsel’s business address. This complies with s. 12(1), which only requires the provision of an address for notice of documents, and not a personal address.

[75] The tenant did not pursue the argument that the landlord had not complied with the requirement to set out his legal name. He obviously had. But he argued that the Member erred in law in concluding that the landlord had cured his failure to set out his address for the purpose of giving notices or other documents under the Act.

[76] In my view, the Member’s conclusion on this issue was entirely reasonable, taking into consideration as he did the stated purpose of providing an address: to provide a lawful method for the tenant to give notices or other documents under the Act to the landlord. I see no possible legal error in the Member’s conclusion that giving the address of counsel for the landlord as the address for giving notices or other documents complies with s. 12(1) of the Act.

Did the Board Err in Limiting the Tenant’s Claim for Repairs and Deficiencies to only One Year prior to the Application?

[77] As I have noted, the Member ordered the landlord pay the tenant an abatement of $1,600 of rent and $576.00 for the cost of repairs together with the tenant’s $45.00 filing fee. The abatement consisted of $1,400.00 for failure to repair the apartment doors for 14 months, and $50 per month for four months for loss of the use of his parking spot.

[78] The fixing of the amount of the abatement is a question of fact and not susceptible to appeal absent an error of law. The only error of law argued by the tenant is the limiting of the abatement for failure to repair the apartment doors to a 14 month period. The tenant argues that the Member erroneously applied this limitation on the basis of s. 29(2) of the Act.

[79] Section 20(1) of the Act makes a landlord responsible for maintaining rental units in a good state of repair and fit for habitation. Section 29(1) of the Act permits a tenant of a rental unit to apply to the Board for an order determining that the landlord has breached an obligation under section 20(1) of the Act. Section 29(2) of the Act provides that no application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.

[80] The tenant takes the position that he could not have brought an application for abatement in relation to the failure to repair his door until he had been provided with the landlord’s address for service of documents.

[81] The tenant moved into the premises on March 13, 2013. The Member found that the lease did not provide him with the landlord’s address at that time. The doors were in disrepair when the tenant moved in. However, the Member also found that the tenant was provided with the landlord’s address for service when he was served with the N4, that is, on July 26, 2014, in compliance with s. 12(1). As a result, when the tenant was finally given the landlord’s address on July 26, 2004, s. 29(2) precluded the tenant from bringing an application for an abatement of rent in relation to the period from March 13, 2013 to July 26, 2013, a little less than a four month period, as one year had already passed since the conduct that gave rise to the application.

[82] The tenant argues that the limitation period should have been suspended during the period in which he could not have brought an application for an abatement of rent because he did not have the landlord’s address for service.

[83] While I do not doubt that in some cases of failure to comply with s. 12(1), the limitation period could result in unfairness, it is not immediately apparent to me where the Board, or this Court, could find the jurisdiction to ignore the plain words of s. 29(2) of the Act. But there is no need to resolve that issue here. The argument is an artificial one in this case. I say this because the tenant did not move expeditiously to bring an application for abatement once he had the landlord’s address. He waited until November 12, 2014 to do so, thereby placing an additional period of almost four months into the time-barred period. There is no basis to imagine that if the tenant had had the landlord’s address earlier, he would have brought this application earlier.

[84] The logical effect of the tenant’s argument, if we were to adopt it in this case, is that he would be entitled to an abatement for the period March 13, 2013 to July 26, 2013, not entitled to an abatement for the period from July 26, 2013 to November 12, 2013, and then entitled to an abatement from November 12, 2013 to the time of the hearing. That would be an absurd result. Since he did not bring his application for an abatement until several months after s. 12(1) had been complied with, he is not entitled to any relief from the effect of the limitation period.

[85] I would not give effect to this argument.

Other Grounds of Appeal

[86] There were other grounds of appeal advanced in the tenant’s factum and briefly in oral argument, including: retaliatory rent increase; inattentiveness of the member; and bias on the part of the member. None of these grounds of appeal have any merit.

Disposition

[87] The appeal is dismissed. On the agreement of the parties, we order costs to the landlord fixed in the amount of $5,000 all inclusive, payable forthwith.

DAMBROT J.

MARROCCO A.C.J.S.C.

PATTILLO J.

RELEASED: 20160719

[^1]: The N2 was filed as exhibit 2 at the hearing on January 8, 2015. [^2]: I note that the original lease between the landlord and tenant was also given to the Member and filed, and it was confirmed that the monthly rent of $1,850 in the agreement is the rent that the landlord purported to increase to $2,500. This lease later became exhibit 1 at the hearing on January 8, 2015.