Williams v. 1175326 Ontario Ltd., 2016 ONSC 7781

CITATION: Williams v. 1175326 Ontario Ltd., 2016 ONSC 7781

DIVISIONAL COURT FILE NO.: 319/16

DATE: 20161212

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

SANDY WILLIAMS and others Appellant

– and –

1175326 ONTARIO LTD. Respondent

S. Williams in person M. Melchers, for the respondent E. Richler, pro bono amicus

HEARD at Toronto: December 8, 2016

NORDHEIMER J.

[1] The respondent brings this motion to quash the appeal launched by Ms. Williams and others. The principal ground for the motion is that the only question of law raised by the appeal has been already determined against the appellant’s position and, consequently, the appeal has no merit.

[2] The respondent is the landlord of a residential apartment building located at 105 Rowena Drive in Toronto. The appellant is a tenant in that building. A number of other tenants in the building are listed in the Notice of Appeal as appellants. I will address that issue later.

[3] The landlord received a Notice of Rent Reduction from the City of Toronto in September 2012. Pursuant to the Notice, the landlord was required to reduce the rents charged by 0.54% as of December 31, 2012. The landlord sought a review of that requirement before the Landlord and Tenant Board. Eventually, on April 16, 2014, the landlord was successful when the Board varied the rent reduction to 0.35%.

[4] In the meantime, the landlord had given Notices of Rent Increase to the tenants. Since the landlord was seeking a review of the Notice of Rent Reduction, it chose not to incorporate the stipulated rent reduction in the Notices of Rent Increase. Rather, the stated increased rents were based on the increases to which the landlord might be entitled before the stipulated rent reduction.

[5] Once the decision of the Board was received, the landlord began issuing Notices of Rent Increase that included the rent reduction as ordered by the Board. Further, the landlord recalculated the rents dating back to December 31, 2012 and provided each existing tenant with credits for the overpaid rents, retroactive to that date.

[6] In late 2015, the respondent, along with other tenants, filed an application for a rebate alleging that the landlord had been charging unlawful rent since at least December 31, 2012. The Board heard the matter over two days. With the exception of three tenants, the Board dismissed the tenants’ application. In doing so, the Board determined that the unsuccessful tenants (who included the respondent) had not challenged the rent increases within the one year limitation provided for in the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) and thus had lost their rights to dispute the rent increases.

[7] The unsuccessful tenants sought a review of the Board’s decision. That review was dismissed.

[8] The respondent, along with other tenants, now seek to appeal the Board’s decision. An appeal to this court lies only on a question of law: RTA – s. 210.

[9] The central issue raised by the respondent in her appeal is the contention that, because the landlord did not include the rent reduction ordered by the City in its Notices of Rent Increase, the Notices are “void”. The respondent moves from that contention to say that, because the Notices of Rent Increase are void, they are a nullity and she (and the other tenants) are entitled to challenge them without being caught by the one year limitation.

[10] The statutory requirements relevant to this issue begin with [s. 116(1