Court File and Parties

CITATION: El Sayed v. City of Ottawa and OCHC, 2017 ONSC 3702

DIVISIONAL COURT FILE NO.: 15-2103

DATE: 2017/06/16

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Aston, Swinton and Mitrow JJ.

BETWEEN:

OMAR AHMED EL SAYED Applicant

– and –

CITY OF OTTAWA and OTTAWA COMMUNITY HOUSING CORPORATION Respondents

Self-Represented Laura Clark, for the Ottawa Community Housing Corporation Stuart Huxley, for the City of Ottawa

HEARD at Ottawa: June 15, 2017

Reasons for Judgment

The Court

[1] The central issue in this application for judicial review is whether parking charges imposed on the applicant are to be included in the calculation of his rent-geared-to-income assistance pursuant to the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1.

[2] The respondent Ottawa Community Housing Corporation (“OCHC”) is a local housing corporation as defined by the Housing Services Act. OCHC provides housing to low income residents in Ottawa. As a landlord, OCHC is also governed by the Residential Tenancies Act, 2006, S.O. 2006 c. 17.

[3] Pursuant to s. 38 of the Housing Services Act, ”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.

[4] The amount of rent payable by a household receiving rent-geared-to-income assistance is determined by the “service manager”, and this determination must be made in accordance with the requirements prescribed for this purpose: s. 50(1), (2) of the Housing Services Act.

[5] The calculation of geared-to-income rent is prescribed by O. Reg. 298/01, as amended. Pursuant to s. 52(1) of this regulation, once in every 12 month period the service manager is required to review the geared-to-income rent payable by the household.

[6] Pursuant to s. 48 of the regulation, the geared-to-income rent for a person like the applicant, who is in receipt of Ontario Disability Support benefits, is determined by Table 5. That amount is then adjusted, in accordance with s. 51 and Tables 6 through 10, for specified items, such as electricity, heat and water. Parking is not mentioned in these tables.

[7] The applicant occupies a housing unit owned by OCHC pursuant to a residential tenancy agreement signed by the OCHC as landlord and the applicant and his wife as tenants. An addendum attached to and forming part of the residential tenancy agreement confirmed that the tenants were paying rent-geared-to-income. The effective date of the tenancy was October 1, 2006. The rent payable by the tenants under that tenancy agreement consisted of the geared-to-income rent plus an additional monthly amount for a parking spot.

[8] By letter dated August 7, 2014, OCHC determined the geared-to-income rent payable by the applicant for the period starting September 1, 2014. This calculation was made by OCHC pursuant to s. 17(1) of the Housing Services Act, acting as the designated agent of the service manager – in this case, the service manager being the respondent, City of Ottawa pursuant to Schedule 2 of the Housing Services Act. This letter further requires the applicant to pay an additional monthly amount for parking.

[9] The City of Ottawa as service manager remains responsible for the performance of any delegated duties: see s. 17(5) of the Housing Services Act. By letter dated September 30, 2014, the City of Ottawa as service manager confirmed OCHC’s decision that parking charges were payable in addition to geared-to-income rent, and declined to assemble a panel to review that decision.

[10] The applicable standard of review of the decisions of August 7, 2014 and September 30, 2014 is reasonableness (Simpson v. Toronto Community Housing Corporation, 2016 ONSC 76 (Div. Ct.) at para. 19). The present decisions were not only reasonable, but were the only decisions that could reasonably be made.

[11] The applicant’s position is that parking charges are always included in geared-to-income rent. He seeks judicial review of the decisions made by OCHC and the City of Ottawa. The applicant submits that OCHC acted illegally by levying parking charges over and above the geared-to-income rent. The applicant challenges OCHC’s ability to do so, and the applicant submits that the City of Ottawa failed to exercise its supervisory authority in allowing OCHC to do so.

[12] We agree with the applicant that there is nothing in the Housing Services Act that authorizes OCHC to add an amount for parking charges to the geared-to-income rent. However, we disagree with the applicant that the parties are precluded from entering into a contract to pay for parking charges as an extra because of the Housing Services Act.

[13] The applicant’s obligation to pay rent stems from the landlord and tenant relationship, not from the Housing Services Act. The fallacy in the applicant’s argument is the assumption that the Housing Services Act excludes the operation of the Residential Tenancies Act.

[14] Section 7 of the Residential Tenancies Act excludes the operation of certain portions of that Act when the rental unit is governed by the Housing Services Act. The obvious purpose of s. 7 is to allow the Housing Services Act and the Residential Tenancies Act to be complementary and to function in parallel without a conflict. It is significant that the exclusions listed in s. 7(1) of the Residential Tenancies Act do not include s. 123 of the Residential Tenancies Act, which allows a landlord, in this case OCHC, to increase the rent charged to a tenant for a rental unit in relation to a parking space.

[15] We agree with the submission of the respondents that any dispute in relation to the additional charges for parking must be determined by the Landlord and Tenant Board under the Residential Tenancies Act and not by a service manager under the Housing Services Act.

[16] In at least two decisions of the Landlord and Tenant Board, the Board has concluded that it has the authority to adjudicate disputes over parking charges in rent geared-to-income situations. See R.C.R. v. M.N., File Number CEL-28853-13 – RV (18 June 2013) and A.R. v. E.B.C., File Number TNT 58335-14 (14 January 2015). In the latter case, the Board held that the landlord was prohibited from charging an additional amount for parking because free parking had been part of the contractual terms of the original tenancy agreement. The issue was resolved as a matter of contractual obligation and the inability of the landlord to unilaterally alter the tenancy agreement. In the present case, there is no evidence that OCHC ever offered, or agreed to provide, free parking. To the contrary, the residential tenancy agreement provided for parking charges.

[17] In summary, we agree with the respondents’ submission that the calculation of rent-geared-to-income assistance pursuant to the Housing Services Act does not permit any adjustment to be made for charges in relation to parking spaces under that Act. However, it does not prohibit a separate enforceable contractual provision in a tenancy agreement respecting parking.

[18] The applicant also seeks a number of declarations in relation to his residential tenancy agreement, including that it was signed under “duress” and is “vitiated”. The proper forum to adjudicate the validity and terms of the applicant’s occupancy of the rental unit is the Landlord and Tenant Board.

[19] Therefore, the application is dismissed. The respondents do not seek costs.

Aston J.

I agree _______________________________

Swinton J.

I agree _______________________________

Mitrow J.

Date of Release: June 16, 2017

CITATION: El Sayed v. City of Ottawa and OCHC, 2017 ONSC 3702

DIVISIONAL COURT FILE NO.: 15-2103 DATE: 2017/06/16

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Aston, Swinton, and Mitrow JJ.

BETWEEN:

OMAR AHMED EL SAYED Applicant

– and –

CITY OF OTTAWA and OTTAWA COMMUNITY HOUSING CORPORATION Respondents

REASONS FOR JUDGMENT

By the Court

Date of Release: June 16, 2017