Belaire v. Ontario Aboriginal Housing Services Corporation

[Indexed as: Belaire v. Ontario Aboriginal Housing Services Corp.]

Ontario Reports

Ontario Superior Court of Justice, Divisional Court, Marrocco A.C.J., Heeney R.S.J. and Ellies J.

May 16, 2017

138 O.R. (3d) 224 | 2017 ONSC 2839

Case Summary

Landlord and tenant — Residential Tenancies — Landlord and Tenant Board — Jurisdiction — Tenant residing in rent-geared-to-income premises — Landlord applying for order evicting tenant for non-payment of rent — Tenant submitting that his rent was unlawful as it had gone up while his income had gone down — Board erring in finding that s. 203(a) of Residential Tenancies Act deprived it of jurisdiction to determine legal amount of rent payable — Section 203(a) providing that board [page225] shall not make determination concerning amount of geared-to-income rent payable under Housing Services Act — Section 203(a) not applying as tenant's rent was not payable under Housing Services Act, 2011 — Housing Services Act, 2011, S.O. 2011, c. 6, Sch. 1 — Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 203(a).

The tenant, a 56-year-old disabled man whose only source of income was Ontario Disability Support Program benefits, lived in rent-geared-to-income premises. The landlord applied to the Landlord and Tenant Board for an order evicting the tenant for non-payment of rent. The tenant submitted that his rent was unlawful as it had gone up while his income had gone down. The board found that it did not have jurisdiction to determine the legal amount of rent payable by the tenant. The board relied on s. 203(a) of the Residential Tenancies Act, 2006, which provides that the board shall not make determinations concerning "eligibility for rent-geared-to-income assistance as defined in section 38 of the Housing Services Act, 2011 ("HSA") or the amount of geared-to-income rent payable under that Act". The application was allowed. The tenant appealed.

Held, the appeal should be allowed.

The Residential Tenancies Act, 2006 is remedial legislation and must be interpreted liberally to ensure the realization of its objectives. The board failed to recognize that the definition in s. 38 of the HSA applies only with respect to eligibility for rent-geared-to-income assistance, and that eligibility for assistance was never in issue. Rather, the question before the board was whether or not the rental increases levied by the landlord were lawful, which called for a determination as to the amount of rent that was legally payable. As the tenant's rent was not payable under the HSA, s. 203(a) did not operate to deprive the board of jurisdiction to determine the lawfulness of rent being charged. The matter was remitted for a new hearing before a differently constituted board.

Cases referred to

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; First Ontario Realty Corp. v. Deng, [2011] O.J. No. 260, 2011 ONCA 54, 274 O.A.C. 338, 330 D.L.R. (4th) 461, 1 R.P.R. (5th) 1, 199 A.C.W.S. (3d) 1315; Matthews v. Algoma Timberlakes Corp. (2010), 102 O.R. (3d) 590, [2010] O.J. No. 2710, 2010 ONCA 468, 94 R.P.R. (4th) 43, 266 O.A.C. 261, 321 D.L.R. (4th) 282, 191 A.C.W.S. (3d) 270; Newman v. Dakota Property Management Inc., [2010] O.J. No. 4469, 2010 ONSC 5350, 194 A.C.W.S. (3d) 278 (S.C.J.)

Statutes referred to

Housing Services Act, 2011, S.O. 2011, c. 6, Sch. 1, ss. 38, 39

Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 1, 3(1) [as am.], 203 [as am.], (a) [as am.], 210

APPEAL by the tenant from an order of the Landlord and Tenant Board.

Amy Scholten, for appellant.

Brian Whitwham, for respondent. [page226]

The judgment of the court was delivered by

[1] HEENEY R.S.J.: — This is an appeal on a question of law pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "RTA") from a decision of the Landlord and Tenant Board (the "board") dated February 2, 2016.

[2] Briefly stated, the respondent had applied to the board for an order evicting the appellant on the basis of non-payment of rent. The appellant resisted the application on the basis that the rent being charged was unlawful. He resides in rent-geared-to-income premises, and his rent had been substantially increased despite the fact that his monthly income had actually gone down. This led to the accumulation of rental arrears.

[3] The board ruled that it did not have jurisdiction to determine the amount of rent lawfully chargeable by the respondent, by reason of s. 203 of the RTA. Accordingly, it did not interfere with the amount of arrears claimed to be owing, and granted the eviction order as requested by the respondent.

[4] It is that question of jurisdiction that is now before this court.

Background

[5] The appellant is a 56-year-old physically disabled Aboriginal man, who has lived in the rental unit in question for over 20 years with his wife. They raised their family there. His only source of income is from the Ontario Disability Support Program.

[6] The appellant originally entered into a lease with Canada Mortgage and Housing Corporation in 1997, whereby it was agreed that his monthly rent would be assessed according to a rent-geared-to-income scale. In 2009, authority for the administration and funding of this, and other, properties was transferred to the respondent pursuant to a transfer agreement. The respondent has a mandate to provide rent-geared-to-income housing throughout rural and remote areas in Ontario, with a specific focus on Aboriginal people. Section F of the transfer agreement sets out how rent-geared-to-income is to be calculated.

[7] From 2012 until December 2014, the appellant and his wife paid $213 per month in rent. In December 2014, the respondent notified the appellant that his rent was increasing to $415 per month. This was so despite the fact that the appellant's income had remained unchanged. No explanation was provided for the increase.

[8] Shortly thereafter, the appellant and his wife separated, which led to the appellant's monthly ODSP benefit being reduced. He informed the property administrator of this [page227] decrease in his income, and was told to pay $135 per month in rent for March 2015. He did so, and has been paying rent in that amount ever since.

[9] However, in April 2015 he received another notice from the respondent, stating that his rent was now going to be $275 per month. This is almost 30 per cent more than he had been paying up to December 2014, when his income was actually higher. He protested, but to no avail. Arrears based on the new amount of rent began to accumulate, and an application was brought by the respondent to evict the appellant for non-payment of rent.

[10] When the matter came before the board, the appellant raised a preliminary question of jurisdiction. The question focused on s. 203 of the RTA, which reads as follows:

203. The Board shall not make determinations or review decisions concerning,

(a) eligibility for rent-geared-to-income assistance as defined in section 38 of the Housing Services Act, 2011 or the amount of geared-to-income rent payable under that Act; or

(b) eligibility for, or the amount of, any prescribed form of housing assistance.

[11] The respondent took the position before the board, and in this court, that this section precludes the board from reviewing a decision concerning the amount of geared-to-income rent that is payable by the appellant. The appellant, on the other hand, argued that this section does not deprive the board of jurisdiction to review such decisions, because his rent is not payable under the Housing Services Act, 2011, S.O. 2011, c. 6, Sch. 1 (the "HSA"). On a plain reading of s. 203(a) of the RTA, it only applies to deprive the board of jurisdiction over decisions concerning eligibility for assistance and the amount of rent payable "under that Act" -- that is to say, the HSA.

[12] The board, in considering this preliminary issue, referred to s. 38 of the HSA. The relevant part of that section, along with s. 39 (which is also arguably relevant), are reproduced here:

38. In this Part"rent-geared-to-income assistance" means financial assistance provided in respect of a household to reduce the amount the household must otherwise pay to occupy a unit[.]

39(1) This Part applies with respect to rent-geared-to-income assistance and special needs housing provided under a transferred housing program that is prescribed for the purposes of this subsection. [page228]

[13] Section 39 limits the application of this part of the HSA to a transferred housing program that is "prescribed". It is common ground that the transfer program governing the unit in question here is not prescribed or specified in the regulations under the HSA. Thus, the HSA has no application to the tenancy in question.

[14] However, the respondent pointed out that only s. 38 (and not s. 39) of the HSA is referred to in s. 203(a) of the RTA. At paras. 7 to 9 of its reasons, the board ruled as follows:

I agree with the Landlord. The purpose of section 203 of the Act is quite limited: It is to determine whether a tenant received rent-geared-to-income assistance as defined in s. 38 of the HSA, and if so, to limit the Board's jurisdiction in making determinations of the eligibility for, or the amount of geared-to-income rent payable in rent-geared-to-income assistance tenancies.

In this case, the parties agree that the Tenant receives financial assistance from the Landlord to reduce the amount of rent he would otherwise have had to pay to occupy the rental unit. This means that the Tenant received rent geared to income assistance as defined by section 38 of the HSA.

As a result, section 203 of the Act applies and the Board will not make determinations on the amount of rent charged by the Landlord of the Tenant. Given my finding that section 203 of the Act applies, it is unnecessary for me to consider the balance of the parties' submissions on this preliminary issue.

Standard of Review

[15] The appellant submits that the applicable standard of review is correctness, while the respondent submits that it is the more deferential standard of reasonableness.

[16] There is a great deal of jurisprudence establishing that the standard of review that is generally applicable to statutory appeals from decisions of the board under s. 210 of the RTA is reasonableness. In First Ontario Realty Corp. v. Deng, [2011] O.J. No. 260, 2011 ONCA 54, Karakatsanis J.A. (as she then was) said the following, at paras. 16 and 21:

The standards of review established by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 apply not only to judicial review but also to statutory appeals from tribunals: see Coffey v. College of Licensed Practical Nurses (Manitoba) (2008), 2008 MBCA 33, 291 D.L.R. (4th) 723 (C.A.), at para. 34; Salway v. Assn. of Professional Engineers & Geoscientists (British Columbia) (2010), 2010 BCCA 94, 3 B.C.L.R. (5th) 213 (C.A.), at para. 22; and Flora v. Ontario Health Insurance Plan (2008), 2008 ONCA 538, 238 O.A.C. 319 (C.A.), at paras. 36-37. Indeed, prior to Dunsmuir, the Supreme Court noted that "[t]he term 'judicial review' embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal.": Dr. Q. v. College of Physicians & Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 21 (emphasis added). [page229]

In this case, the Board was required to interpret its "home statute" and Regulation in determining a tenant application for a rent reduction. The Board's governing statute provides for a specialized adjudicative regime for resolving disputes. Under the Act, the determination of whether services or facilities to tenants have been reduced by the landlord and the determination of the corresponding rent reduction are core functions of the Board. It applied statutory and regulatory provisions with which it has particular familiarity. As well, with respect to whether the facts established a "common recreational facility", the legal and factual issues are intertwined and cannot be readily separated. Although there is no privative clause, appeals are limited to questions of law. The interpretation of "service and facility" as it relates to the former landscaped areas or the calculation of the "value" of that service or facility is not one of central importance to the legal system. In these circumstances, I am satisfied that the deferential standard of reasonableness applies to these determinations. While the use of mandatory language in the Regulation prescribes the Board's approach to its calculation of the appropriate rent reduction, it does not, in these circumstances, convert the standard of review from one of deference to one of correctness.

[17] On the other hand, deference was not afforded to the board in Matthews v. Algoma Timberlakes Corp. (2010), 102 O.R. (3d) 590, [2010] O.J. No. 2710, 2010 ONCA 468, where the board was interpreting the meaning of the words "rented residential premises" in its home statute. Lang J.A., speaking for the court, said this, at para. 3:

Even assuming that deference is owed to a tribunal's decision that is based on the interpretation of its home statute, in my view deference is not owed in the circumstances of this case. In this case, the decision was based on dictionary definitions of "residence" and did not reflect a nuanced approach based on Board member's expertise. As well, the Board member considered himself to be bound by the decision of the Divisional Court in Wheeler v. Ontario (Minister of Natural Resources) (2005), 2005 13039 (ON SCDC), 75 O.R. (3d) 113. Accordingly, in my view, the decision is not entitled to deference.

[18] It would appear that basing its decision on dictionary definitions took the board outside of its core expertise, thereby undermining the rationale for affording deference. In the case at bar, something similar can also be said. The board here was not just interpreting s. 203 of the RTA, but was also interpreting and applying s. 38 of the HSA. Clearly, the board has no specialized expertise regarding the HSA, and is entitled to no deference in its decisions of law regarding the interplay between that statute and the RTA.

[19] However, in my view the authoritative answer to the question of standard of review can be found in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9. LeBel J., speaking for the court, was discussing instances where the applicable standard of review is correctness, and said this, at para. 59: [page230]

Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf ed.), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, Bastarache J.). That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.

(Emphasis added)

[20] A true question of jurisdiction arises here. The tribunal was called upon to determine whether the statutory grant of power in the RTA gave it jurisdiction to decide whether the rental increases imposed by the respondent were lawful. The board ruled that it had no jurisdiction to decide this question.

[21] In my view, the applicable standard of review is correctness.

Analysis

[22] It is well established in the jurisprudence that the RTA is remedial legislation. At para. 22 of Matthews, Lang J.A. described the proper approach to interpreting this statute:

The modern rule of statutory interpretation requires that "the words of an Act . . . be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), at p. 87. Given the remedial nature of the Act, its provisions must be interpreted liberally to ensure the realization of its objectives. See Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1, [2006] 1 S.C.R. 3, at para. 16.

[23] The objectives of the RTA are set out in s. 1 thereof, which reads as follows:

1. The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights [page231] and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.

[24] The issue in dispute here fits expressly within that mandate. The appellant submits that his rental increases are unlawful, and looks to the board for protection. The RTA, therefore, should be liberally interpreted to ensure the realization of that objective. It was conceded by the respondent, in argument, that determining what constitutes lawful rent is part of the daily and routine business of the board.

[25] It is also noteworthy that the RTA is supreme and, subject to an exception that is not relevant here, applies despite any other Act (including the HSA) and despite any agreement or waiver to the contrary. This is spelled out in s. 3(1):

3(1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.

[26] In its ordinary and grammatical sense, s. 203 describes three categories of questions where the board shall neither make a decision nor review a decision:

(1) eligibility for rent-geared-to-income assistance as defined in s. 38 of the HSA; or

(2) the amount of geared-to-income rent payable under "that Act" (i.e., the HSA); or

(3) eligibility for, or the amount of, any prescribed form of housing assistance.

2k

[27] The third question can quickly be discarded. It is agreed that no "prescribed form of housing assistance" is currently in existence.

[28] It is the first question that the board focused on. It concluded that the appellant received "rent-geared-to-income assistance" as defined by s. 38 of the HSA, and went on to hold that the board therefore had no jurisdiction to determine the amount of rent payable in a geared-to-income tenancy.

[29] In my view, the board erred in failing to recognize that the definition in s. 38 of the HSA applied only with respect to the first category outlined above: eligibility for rent-geared-to-income assistance. However, eligibility for assistance was never in issue. The appellant was eligible for assistance before the board's decision and remains eligible after. The question of eligibility was not before the board. [page232]

[30] Rather, the question before the board fell within the second category outlined above: the amount of geared-to-income rent payable under "that Act". The issue before the board was whether or not the rental increases levied by the respondent were lawful, which calls for a determination as to the amount of rent that is lawfully payable. If the appellant's rent had been payable under the HSA, the board would not have had jurisdiction to consider the amount of rent that is lawfully payable. However, it is common ground that the appellant's rent is not payable under the HSA, but is instead payable pursuant to the terms of the transfer agreement. Accordingly, s. 203(a) does not operate so as to deprive the board of jurisdiction to determine the lawfulness of the rent being charged.

[31] I conclude that the board erred in law in ruling that, by reason of s. 203, it has no jurisdiction to determine the lawfulness of the rent increases levied by the respondent.

[32] I would have arrived at the same conclusion even had the standard of review been one of reasonableness. The effect of the board's decision was to deprive the board of jurisdiction to consider the amount of rent charged in all rent-geared-to-income tenancies, and not just those governed by the HSA. It could only have arrived at that conclusion by ignoring the clear words of the statute, that this restriction on their jurisdiction only applies where rent is payable "under that Act". In my view, a decision that ignores the clear words of a statute does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. There is no chain of intelligible and transparent reasoning that could justify the conclusion that was arrived at.

[33] For completeness, I note that the conclusion I have arrived at is at odds with Newman v. Dakota Property Management Inc., [2010] O.J. No. 4469, 2010 ONSC 5350 (S.C.J.). However, the appellants in that case conceded that the board could not adjudicate their claim that the amount of rent being levied by the Ontario Aboriginal Housing Support Services Corporation was excessive. The court accepted that concession, and did not engage in any analysis of the jurisdictional issue. Accordingly, I find that case to be of no assistance.

[34] The appeal is allowed, and the decision of the board is set aside. The matter is remitted for a new hearing before a differently constituted board.

[35] With respect to costs, we were advised by letter from Mr. Whitwham dated March 6, 2017 that neither party is seeking costs. Accordingly, there will be no costs of this appeal.

Appeal allowed.

[page233]

End of Document