ENDORSEMENT

[1] The Appellant, Greg McHale (the “Tenant”), appeals from a decision of the Landlord and Tenant Board (the “LTB”) dated June 4, 2024, and the review decision of the LTB dated September 18, 2024, granting, in part, the Respondent’s, Rajiv Khullar (the “Landlord”), application to terminate the tenancy because the Tenant did not pay rent that the Tenant owed.

[2] The LTB also heard the Tenant’s application for an order determining that the Landlord had entered the rental unit illegally, substantially interfered with the reasonable enjoyment of the rental unit, harassed the Tenant and failed to meet the Landlord’s maintenance obligations.

[3] The Tenant’s request to review the LTB decision was heard by the LTB on August 14, 2024, and dismissed on September 18, 2024.

Facts

June 4, 2024 LTB Decision

[4] The Tenancy Agreement between the parties commenced on November 1, 2021. The Tenancy Agreement provided that the rental premises were “a single family dwelling” located at 22 Regency Crescent, Whitby, Ontario”. The agreement stated that the premises “excludes Basement. Main floor only with backyard and garage”. The original rent was $1,835 per month. The lease also provided that the Landlord would supply and maintain the following appliances in working order: Stove, Refrigerator, Washer, Dryer, Furnace, Water Heater, and Dishwasher.

[5] When the matter came before the LTB, the LTB dealt with both the Landlord’s and the Tenant’s applications at the same hearing.

[6] The LTB determined that several of the Tenant’s complaints about maintenance had been made out but dismissed several others. The LTB made the following determinations at paras. 24 – 31 of their decision regarding rent abatements for the broken dishwasher and lack of laundry facilities that are germane to this appeal:

Dishwasher

The dishwasher broke down on November 2, 2021, and was not replaced until November 6, 2022.

The Landlord offered 20% rent abatement monthly ($367.00) to compensate for the lack of a dishwasher and laundry facilities as indicated in the letter to the Tenant dated February 19, 2022. As a result, rather than pay the full monthly rent of $1,835.00, the Tenant for the period from January 2022 to November 2022 when the dishwasher was replaced, paid $1,468.00 to the Landlord.

The Landlord claimed that the lawful rent was $1,927.89, following a rent increase in May 2024. The Tenant argued that the lawful rent was $1,468.00 due to a 20% rebate for the lack of a dishwasher, washing machine and dryer in the rental unit.

In a letter to the Tenant dated November 6, 2022, the Landlord informed the Tenant that the rent abatement would cease from December 1, 2022.

Section 20 (1) of the Residential Tenancies Act, 2006 (“Act”), provides that a Landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.

Based on the evidence, there is no question that the Landlord breached his obligation under the Act. However, by granting the Tenant $367.00 in rent abatement monthly, the Landlord compensated the Tenant for his failure to provide a functioning dishwasher in the unit prior to November 6, 2022.

Laundry Facilities

The parties agreed from the start of the tenancy that the Landlord will install laundry facilities in the rental unit but he failed to do so. While the Landlord has permitted the Tenant to use the laundry facilities in the basement since November 2022, the Tenant claims that it does not meet the city’s maintenance standards and asserts that the tenancy agreement excludes the basement. The basement has been vacant since November 30, 2022.

Based on the evidence, the rent abatement of $367.00 was also given because of the lack of laundry facilities in the unit. While I am satisfied that the Landlord initially planned to install a washer and dryer in the rental unit, he has failed to do so and, in the alternative, has offered the use of the facilities in the basement which is no longer occupied by a tenant.

The Tenant argued that the basement was against the city’s building code and relied on a September 12, 2022 letter from the city. However, the letter addresses the Landlord’s failure to obtain a building permit before constructing a basement unit or ‘accessary apartment’. The Tenant did not provide any evidence to support the claim that the laundry facility was not up to the city’s maintenance standards. Therefore, I find that the Tenant has been adequately compensated for the lack of laundry facilities in the rental unit and may proceed to utilize the facility in the basement.

[7] The LTB also found that the Tenant was entitled to:

i. A 1% rent abatement for the period between November 2021 and June 2024 (total rent abatement $562.54) because the Landlord failed to install a door and shelf in space near the entrance door that should have been a closet.

ii. A total rent abatement of $1,111.54 because the Landlord failed to repair a broken board on the deck until December 2023.

[8] With respect to the monthly rent, the Landlord claimed that the lawful rent was $1,927.89, following a rent increase in May 2024. The Tenant argued that the lawful rent was $1,468.00 due to the 20% rebate granted by the Landlord for the lack of a dishwasher, washing machine and dryer in the rental unit.

[9] The LTB found that the agreement for the rent rebate ended in November 2022, when the Landlord installed a dishwasher and gave the Tenant permission to utilize the laundry facilities in the basement.

[10] It is the location of the laundry facilities in the basement that has become the focal point of this appeal.

[11] After taking into account the arrears owing and the rent abatements ordered, the LTB ordered the Tenant to pay to the Landlord $5,817.48, which represented the amount outstanding for the period ending February 29, 2024.

[12] The Landlord’s application to evict the Tenant was denied on the condition that the Tenant make payments to the Landlord in respect of the monies owing according to a schedule set out by the LTB. If the Tenant failed to make the payments, the Landlord could apply under s. 78 of the Residential Tenancies Act, 2006 (“RTA”), for an order terminating the tenancy and evicting the Tenant.

[13] The Landlord was ordered to install a door and shelf in the closet near the entry door.

September 18, 2024 LTB Review Decision

[14] The Tenant requested a review of the June 4, 2024 LTB decision under s. 209 of the RTA, alleging that the LTB had made four serious errors:

a. Breach of natural justice.

b. The Member’s order effectively amended the lease agreement to permit provision of laundry facilities in the basement of the residential complex instead of in the rental unit;

c. The Member erred by requiring the Tenant to use laundry facilities in the basement where there are “…fire, electrical and other Building [C]ode [violations]’”; and

d. The Member failed to consider that the Landlord accepted the rent minus 20% for 13 months (November 2021 to November 2022), and this was therefore deemed the lawful rent. The Tenant alleges the Member refused to allow evidence related to this period, and her determination of the lawful rent was incorrect.

[15] Three of those alleged errors ((b),(c), and (d)) are the same three errors alleged in this appeal.

[16] Following a hearing, the LTB Review dismissed all four alleged errors.

[17] With respect to the laundry facilities, the LTB Review concluded, at paras. 15 - 20:

The written tenancy agreement does not specifically say that laundry facilities will be provided in the rental unit. It says that a washer and dryer “… will be supplied and maintained in working order …”.

In my view, the Member’s determination on this issue did not exceed the LTB’s jurisdiction as alleged by the Tenant. The Member accepted that the Landlord discharged his obligation to provide laundry facilities by providing them in the basement instead of the main floor. In other words, she found that the Landlord complied with his obligation under the lease. This is not an amendment of the lease, but rather an interpretation of it. This is not a serious error of jurisdiction.

The Tenant also submitted that the Member was not entitled to direct that he use the basement laundry facilities where there are fire, electrical, and Building Code violations in the basement.

The Member made the factual determination, based on the evidence before her, that the relevant violation related to construction of the basement apartment, as opposed to the laundry facility in particular.

The Member’s factual determinations are entitled to considerable deference. A finding of fact will only be considered a serious error if the finding of fact is unreasonable, meaning that there is no rational connection between the finding at issue and the evidence at the hearing: LTB Interpretation Guideline #8: Review of an Order.

This was a finding of fact that the Member was entitled to make on the evidence before her, and the finding was rationally connected to the evidence. I cannot determine that this finding of fact was unreasonable, and it is therefore not a serious error.

[18] With respect to the lawful rent, the LTB Review concluded, at para. 23, that the “Member made the factual determination that the rebate ended in November 2022 when the Landlord installed a dishwasher and gave the Tenant permission to use the basement laundry facility” and therefore made no error in determining the lawful rent.

[19] The LTB Review decision stated, at para. 27:

During the hearing, the member stated that this provision [s.136(1) of the RTA] is also not applicable because this was an agreed rebate or abatement until certain facilities were provided by the landlord. In my view, this means that the lawful rent charged was never lowered, the party simply agreed to a rebate/abatement until the dishwasher and laundry facilities were provided. The tenant paid 20% less than the lawful rent, and the difference between the amount paid and the lawful rent was covered by the rebate/abatement for the relevant period.

Case Conference Endorsement

[20] On April 3, 2025, I issued the following order following a case conference with the parties:

This Court Orders:

a. The Tenant shall pay the Landlord the full monthly rent ($1,927) by 4:00 p.m. on the first day of each month commencing May 1, 2025, failing which the stay of the LTB order shall be lifted.

b. The Tenant shall pay the Landlord $2,500 for arrears by April 15, 2025, and $5,000 for arrears by April 30, 2025, failing which the stay of the LTB order shall be lifted.

c. If payment is not made in accordance with paras. (a) and (b) above, the Landlord may prepare and forward forthwith a draft order lifting the stay of the LTB order, in WORD format, for issuance.

d. This Order is made without prejudice to the Tenant/Appellant’s right to challenge the amounts owing at his appeal of the LTB Order, and without prejudice to the Landlord/Respondent’s right to collect the full amounts found owing by the LTB.

[21] The Tenant has complied with this Order and remains in the unit.

Appeal

[22] The Tenant appeals the decision of the LTB, raising the following four issues:

What is the date by which the Landlord finally complied with the Lease?
Does the Tribunal have the authority to alter the Lease?
Did the Landlord mislead the Tribunal regarding the condition of the basement?
What is the lawful rent as defined by the Residential Tenancies Act?

Standard of Review

[23] I adopt the following summary of the standard of review set out by Shore J. in her decision in Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658, at paras. 12 – 18:

An appeal from an order of the Board lies to this court only on a question of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210(1). This court does not have jurisdiction to hear an appeal on a question of fact, or of mixed fact and law: see Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.), at para. 26; Zouhar v. Salford Investments Ltd., 2008 27484 (Div. Ct.), at paras. 8-9.

The Supreme Court of Canada clarified the difference between questions of law, fact, and mixed fact and law, in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35: “Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”

The applicable standard of review on questions of law is correctness.

No assessment of the standard of review is necessary where the requirements of natural justice and procedural fairness are at issue. The court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to, by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly: London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.), at para. 10; P.D. v. The Children’s Aid Society of the Region of Peel and K.D., 2022 ONSC 1817, at paras. 8-10.

In hearing the appeal, the court must consider that the Board is a specialized tribunal, and the legislature has deliberately limited appeals from its decisions to, inter alia, ensure a process that is streamlined, timely and cost-efficient.

The Board is entitled to control its own process and its procedural choices are entitled to deference. This is because administrative tribunals, including the Board, have experience and expertise balancing the need to ensure fair participation by all parties with the need to ensure that the issues are dealt with in a timely and efficient way: see Wei v. Liu, 2022 ONSC 3887, at para. 9.

[24] “The correctness standard does not detract from the need to respect a tribunal’s specialized function. The expertise and familiarity of the Landlord and Tenant Board with the requirements of the Residential Tenancies Act is to be taken into account”: Reisher v. Westdale Properties, 2023 ONSC 1817, at para. 10.

Analysis

What is the date by which the Landlord finally complied with the Lease?

[25] The Tenant takes issue with the LTB’s finding that the Landlord complied with the Lease when he offered to allow the Appellant to use the laundry equipment in the basement. The Tenant argues that the Lease clearly states the Appellant has use of the “main floor only with backyard and garage” and “excludes Basement”. Laundry facilities were not provided in the Tenant’s unit until August 2024, and therefore, the Tenant argues, the Landlord did not comply with the Lease until that date.

[26] Moreover, the Tenant points out that the LTB concluded “the Landlord initially planned to install a washer and dryer in the rental unit”.

[27] The Tenant argues that he did not have evidence at the original LTB hearing to prove that the laundry facilities in the basement were “unusable”, but he did provide this evidence during the LTB Review. In particular, he argues that “a hole in the sink meant that water drained directly on the floor” and that a “rusted out hole in the washer meant that water/bleach drain directly on the floor”. He has provided photographs to support this claim.

[28] One of the tests for the admission of fresh evidence at an appeal is that the proposed evidence could not have been, through due diligence, adduced at trial: Schram v. Thompson, 2022 ONSC 6922, at para. 19. The Tenant does not explain why this new evidence was not available at the original hearing on May 2, 2024.

[29] The requirement for “due diligence” is the same whether a litigant is represented by counsel or self-represented. Being self-represented is not a ground for admitting fresh evidence on appeal.

[30] An appeal in this court is not a de novo hearing on the merits. Nor is it an opportunity to cure defaults that existed at the time of the hearing before the LTB. In the absence of an error of law before the LTB, there is no basis for this Court to intervene: 592182 Ontario Limited v. Red, 2024 ONSC 4935, at para. 5; Solomon v. Levy, 2015 ONSC 2556, at para. 33.

[31] Whether the laundry facilities in the basement were functioning is a question of fact and cannot be a ground of appeal.

[32] In addition, some of the fresh evidence sought to be admitted by the Tenant relates to the state of the unit after the May 2024 hearing. There may well be new maintenance issues that post-date the May 2024 hearing, but those issues must be addressed in a new application to the LTB, and cannot be raised for the first time on appeal.

[33] Whether the provision of laundry facilities in the basement complied with the Lease is the next issue raised by the Tenant.

Does the Tribunal have the authority to alter the Lease?

[34] The Tenant argues that even if the washer in the basement was properly working, it still did not comply with the Lease because the Lease barred the Tenant from using the basement.

[35] The Tenant argues that the plain reading of the Lease means that the washer and dryer would be provided in the tenant’s unit and both parties agree that was the intent at the time of signing the Lease.

[36] The LTB Review decision concluded that the original LTB decision did not amend the lease, but rather interpreted it, and found that by providing the laundry facilities in the basement, the Landlord was in compliance with the lease. The LTB Review decision specifically noted that:

[37] In addition, I note that other listed appliances, specifically the furnace and water heater, are located in the basement.

[38] I accept the LTB conclusion that it was not amending the lease, but was interpreting it, an issue that is clearly within the jurisdiction of the LTB. That interpretation was reasonable, and does not disclose any legal error.

Did the Landlord mislead the Tribunal regarding the condition of the basement?

[39] The Landlord presented evidence to the Tribunal that the laundry room was in proper working order. The Tenant argues that he provided photographs to the Tribunal Review that this was false. The Tenant argues that the Landlord knew that his evidence was not true, and that this constitutes “fraud upon the court”.

[40] Both the LTB and the LTB Review preferred the evidence of the Landlord.

[41] Whether the laundry room was in working order is clearly a question of fact and therefore cannot a ground of appeal in this Court.

What is the lawful rent as defined by the Residential Tenancies Act?

[42] The Tenant argues that the Landlord gave him a 20% discount on the rent, and once given, this represents the lawful rent and cannot be increased by the Landlord. Thus, he argues, the lawful rent continues to be $1,468 per month. This discount, he argues, should continue until August 2024, when the laundry facilities were finally provided in his unit.

[43] It appears from the LTB Review that the Tenant’s position on this issue turned primarily on s. 136(1) of the RTA, which provides as follows:

136 (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.

[44] In this case, the tenancy commenced on November 1, 2021. The Tenancy Agreement provided that the rent was $1,835 per month. The LTB found that for the period from January 2022 to November 2022 - a period of 11 months - the Tenant paid $1,468.00 to the Landlord. In November 2022, the dishwasher was replaced and the Tenant was permitted to use the laundry facilities in the basement. The Landlord advised the Tenant that the rent abatement would cease at the end of November 2022 and the rent would return to the lease amount on December 1, 2022.

[45] The LTB concluded that the Landlord was compliant with the terms of the Lease as of the end of November 2022, and that the 20% rent abatement provided until that date was sufficient compensation for the lack of dishwasher and laundry facilities to that date.

[46] If we accept these finding of the LTB, s. 136(1) of the RTA has no application because the discounted rent was provided for less than one year, and did not, therefore, become the deemed lawful rent.

[47] The Tenant argues that the LTB misinterpreted the RTA by applying the wrong sections of the RTA. He argues that the relevant provisions are sections 111 to 113 of the RTA, and, in particular, s. 111(3), which states:

(3) Subject to subsections (2) and (2.1), where a landlord offers a discount in rent at the beginning of, or during, a tenancy, the lawful rent shall be calculated in accordance with the prescribed rules.

[48] The Tenant argues that this provision means that once a discount is offered in rent at any time during the tenancy the “lawful rent” is to be calculated in accordance with the “prescribed rules”. The LTB simply did not acknowledge that there were any rules that applied to the calculation of rent.

[49] The Tenant further argues that the “prescribed rules” are set out in subs. 111(2) and (2.1) of the RTA, and in O. Reg. 516/06: GENERAL, Part II, Matters Relating to Rent, sections 11 – 14, made under the RTA (the “RTA Regulation”).

[50] Subs. 111(2) and (2.1) of the RTA provide for a prompt payment discount and a discount of up to three months rent in any 12-month period:

Lawful rent where prompt payment discount

(2) The lawful rent is not affected by a discount in rent at the beginning of, or during, a tenancy of up to 2 per cent of the rent that could otherwise be lawfully charged for a rental period if the discount is provided for paying rent on or before the date it is due and the discount meets the prescribed conditions.

Lawful rent where another discount

(2.1) The lawful rent is not affected if one of the following discounts is provided:

A discount in rent at the beginning of, or during, a tenancy that consists of up to three months rent in any 12-month period if the discount is provided in the form of rent-free periods and meets the prescribed conditions.
A prescribed discount.

[51] The Tenant argues that neither of these prescribed discounts apply to his case, and that if the prescribed rules in RTA Regulation were properly applied the lawful rent would remain $1,468 per month.

[52] It is not clear from the material before me whether this argument was made to the LTB or LTB Review, but these specific statutory provisions were certainly not addressed in either of the LTB decisions.

[53] In my view, it would not be appropriate for this Court to address these arguments for the first time on an appeal. The Court would benefit from the expertise of the LTB on this question of statutory interpretation.

[54] Accordingly, while I will dismiss the other grounds of appeal, I will remit this issue back to the LTB to address in a new proceeding.

Conclusion

[55] The appeal is dismissed on all issues except for the application of subs. 111(2) and (2.1) of the RTA, and O. Reg. 516/06: GENERAL, Part II, Matters Relating to Rent, sections 11 – 14, made under the RTA (the “RTA Regulation”), which is remitted back to the LTB for a new hearing confined to the application of those specific statutory provisions to the determination of the proper rent in this case.

[56] My case conference Endorsement dated April 3, 2025 remains in full force and effect pending the outcome of any further LTB proceedings.

[57] If the parties are not able to agree on costs, the Respondent/Landlord may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this Endorsement, and the Appellant/Tenant may file responding submissions on the same terms within a further 15 days.

Justice R.E. Charney

Released: May 13, 2026

McHale v. Khullar, 2026 ONSC 2809

Case Summary