Onyskiw et al. v. CJM Property Management Ltd.
[Indexed as: Onyskiw v. CJM Property Management Ltd.]
Ontario Reports
Court of Appeal for Ontario,
Weiler, Cronk and Benotto JJ.A.
June 16, 2016
132 O.R. (3d) 295 | 2016 ONCA 477
Case Summary
Landlord and tenant — Residential tenancies — Repair — Elevator in six-storey apartment building being properly maintained until it broke down as result of latent defect — Landlord attempting to keep elevator running while it took steps to replace it — Elevator out of service for 96 days in one year — Landlord and Tenant Board reasonably finding that landlord acted diligently and did not fail to comply with its duty under s. 20(1) of Residential Tenancies Act, 2006 to maintain building in good repair — Reasonableness of landlord's efforts being relevant consideration in determining whether landlord breached its duties under s. 20(1) of Act — Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 20(1).
The appellant tenants brought an application under s. 29(1)[^1] of the Residential Tenancies Act, 2006 ("RTA") for a rent abatement based on an alleged breach of [page296] the landlord's duty under s. 20(1) of the RTA to maintain the apartment building in good repair after the elevator was out of service for a total of 96 days in one year. The elevator in the six-storey building was under a maintenance contract. It had passed all annual and monthly inspections and the licence had been renewed when the elevator broke down because of a latent defect. The landlord decided to replace the elevator, and in the interim, it took steps to get the elevator back in operation as quickly as possible. At one point during the relevant period, there was a province-wide elevator technician strike. The Landlord and Tenant Board chose to apply the board's Interpretation Guideline 5, which provides that no abatement ought to be awarded where a deficiency has occurred due to a latent defect; the landlord has taken reasonable steps to remediate the deficiency; the landlord has a reasonable program of maintenance; and the landlord has acted responsibly to rectify a problem that required extensive repairs. The board found that the landlord acted diligently in effecting repairs, arranged to have the elevator replaced as quickly as possible, and acted in a proactive manner by spending $30,000 in repair costs, $15,400 in labour costs for runners to assist tenants and $5,200 for an evacuation chair for use in emergencies. The board concluded that the landlord had fulfilled all of its contractual and statutory obligations, and dismissed the application. The Divisional Court affirmed that decision. The tenants appealed.
Held, the appeal should be dismissed.
The Divisional Court did not err in selecting reasonableness as the standard of review or in concluding that the board's decision was reasonable. A landlord is not automatically in breach of its obligation to repair and maintain under s. 20(1) of the RTA as soon as an interruption in service occurs. The reasonableness of the landlord's maintenance and repair efforts is a relevant consideration when determining whether the landlord has breached its duties under s. 20(1) of the Act. In this case, the latent defect, the difficulty obtaining replacement parts, the province-wide strike, and the length of time it took to install the new elevator were all matters beyond the landlord's control. The board did not read into s. 20(1) a requirement that the tenants must prove the landlord acted unreasonably before a breach of the section could be found. Rather, it considered the entirety of the factual situation before it in determining whether the landlord breached its obligation under s. 20(1).
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; Offredi v. 751768 Ontario Ltd., 1994 CanLII 11006 (ON SCDC), [1994] O.J. No. 1204, 116 D.L.R. (4th) 757, 72 O.A.C. 235, 48 A.C.W.S. (3d) 426 (Div. Ct.); Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), [1976] 2 S.C.R. 520, [1975] S.C.J. No. 87, 62 D.L.R. (3d) 749, 7 N.R. 461; Stephos Management Services v. McGregor, [1993] O.J. No. 1179, 1993 CarswellOnt 3655 (Gen. Div.), consd
Other cases referred to
Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, [2013] S.C.J. No. 36, 2013 SCC 36, 2013EXP-2099, J.E. 2013-1121, EYB 2013-223432, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, 446 N.R. 65, 228 A.C.W.S. (3d) 1098; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, 2011EXP-3798, J.E. 2011-2083, 424 N.R. 70, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, 519 A.R. 1, 208 A.C.W.S. (3d) 434; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; [page297] Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), [2006] 1 S.C.R. 865, [2006] S.C.J. No. 24, 2006 SCC 24, 269 D.L.R. (4th) 79, 349 N.R. 1, J.E. 2006-1215, 212 O.A.C. 338, 20 C.B.R. (5th) 1, 10 P.P.S.A.C. (3d) 66, 148 A.C.W.S. (3d) 182; 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; Harris v. Toronto Community Housing Corp., [2009] O.J. No. 2873, 178 ACWS (3d) 1041, 2009 CanLII 34989 (Div. Ct.); Jemiola v. Firchuk, [2005] O.J. No. 6085, 206 O.A.C. 251 (Div. Ct.); Loewen v. Manitoba Teachers' Society, [2015] M.J. No. 21, 2015 MBCA 13, [2015] 3 W.W.R. 70, 85 Admin. L.R. (5th) 120, 315 Man. R. (2d) 123, 380 D.L.R. (4th) 654, 249 A.C.W.S. (3d) 19; McAteer v. Canada (Attorney General) (2014), 121 O.R. (3d) 1, [2014] O.J. No. 3728, 2014 ONCA 578, 317 C.R.R. (2d) 106, 376 D.L.R. (4th) 258, 27 Imm. L.R. (4th) 216, 324 O.A.C. 163, 242 A.C.W.S. (3d) 772 [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 444, 2015 CarswellOnt 2680, 2015 CarswellOnt 2681]; Mouvement laique québécois v. Saguenay (City), [2015] 2 S.C.R. 3, [2015] S.C.J. No. 16, 2015 SCC 16, 332 C.R.R. (2d) 183, 34 M.P.L.R. (5th) 1, 382 D.L.R. (4th) 385, 22 C.C.E.L. (4th) 1, 2015EXP-1106, J.E. 2015-600, EYB 2015-250606, 251 A.C.W.S. (3d) 184; R. v. Dowslay (1890), 19 O.R. 622, [1890] O.J. No. 192 (H.C.J. (Div. Ct.)); R. v. Snelling, [1952] O.W.N. 214 (H.C.); R. v. Stucky, [2009] O.J. No. 600, 2009 ONCA 151, 71 C.P.R. (4th) 402, 256 O.A.C. 4, 240 C.C.C. (3d) 141, 303 D.L.R. (4th) 1, 65 C.R. (6th) 46, 56 B.L.R. (4th) 1; R. v. The Evgenia Chandris, 1976 CanLII 178 (SCC), [1977] 2 S.C.R. 97, [1976] S.C.J. No. 57, 65 D.L.R. (3d) 553, 8 N.R. 338, 12 N.B.R. (2d) 652, 27 C.C.C. (2d) 241; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, 2001 SCC 56, 203 D.L.R. (4th) 513, 275 N.R. 201, J.E. 2001-1823, 206 Nfld. & P.E.I.R. 304, 157 C.C.C. (3d) 353, 45 C.R. (5th) 1, REJB 2001-25833, 51 W.C.B. (2d) 180; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, D.T.E. 98T-154, 76 A.C.W.S. (3d) 894; Taylor-Baptiste v. Ontario Public Service Employees Union (2015), 126 O.R. (3d) 481, [2015] O.J. No. 3528, 2015 ONCA 495, 338 O.A.C. 361, 82 C.H.R.R. D/ 10, 23 C.C.E.L. (4th) 235, 340 C.R.R. (2d) 23, [2015] CLLC Â230-047, 87 Admin. L.R. (5th) 197, 255 A.C.W.S. (3d) 954; Tsilhqot'in Nation v. British Columbia, [2014] 2 S.C.R. 257, [2014] S.C.J. No. 44, 2014 SCC 44, 2014EXP-2030, J.E. 2014-1148, [2014] 7 W.W.R. 633, 58 B.C.L.R. (5th) 1, 312 C.R.R. (2d) 308, [2014] 3 C.N.L.R. 362, 374 D.L.R. (4th) 1, 459 N.R. 287, 43 R.P.R. (5th) 1, 356 B.C.A.C. 1, 241 A.C.W.S. (3d) 2
Statutes referred to
Landlord and Tenant Act, R.S.O. 1970, c. 236 [rep.], s. 96(1)
Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 2(1) [as am.], 20, (1), (2), 21(1), (2), 22, 29, (1), (1)1, (1)3, 30, (1), (2), 31(1), 130, Part X, ss. 161, 176(1), (3), 210
Tenant Protection Act, 1997, S.O. 1997, c. 24 [rep.], s. 65(1)
Rules and regulations referred to
General, O. Reg. 516/06 [under the Residential Tenancies Act, 2006], s. 8 [as am.], (3)(b), (4), (1)1, (5)1
Maintenance Standards, O. Reg. 517/06, s. 43
Authorities referred to
Côté, Pierre-André, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011) [page298]
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis Canada, 2014)
Paciocco, David M., and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015)
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014)
APPEAL from the order of the Divisional Court (Aitken, Lederer and Ramsay JJ.), [2015] O.J. No. 428, 2015 ONSC 606 (Div. Ct.) affirming an order of the Landlord and Tenant Board dated January 3, 2014.
Lesli Bisgould and Kenneth Hale, for appellants.
S. David Lyman, for respondent.
Brian A. Blumenthal and Eli Fellman, for Landlord and Tenant Board.
The judgment of the court was delivered by
WEILER J.A.: —
A. Overview
[1] This appeal concerns the interpretation of s. 20(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 ("RTA"), which provides as follows:
20(1) 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.[^1]
[2] The appellant tenants submit that the respondent, CJM Property Management Ltd. (the "landlord"), failed to comply with its duties to provide and maintain under s. 20 because the elevator that services their building was out of service for 96 days in one year. They submit that the Landlord and Tenant Board (the "board") erred in denying their application for an abatement of rent. The board found that the landlord had at all times acted reasonably in having a program of preventive [page299] maintenance for the elevator, in repairing it when it broke down and in installing a new elevator. The Divisional Court dismissed the tenants' appeal. Leave to appeal to this court was granted on October 5, 2015.
[3] The Divisional Court did not err in selecting or applying the reasonableness standard of review. For the reasons that follow, I agree with the Divisional Court that the board's decision was reasonable, and I would dismiss the appeal.
B. Facts
[4] The agreed statement of facts contains the following facts.
[5] The appellants are tenants in a 63-unit six-storey building in Kingston. The building was not required by building code requirements to have an elevator at the time it was built, but one was nevertheless installed when the building was built in 1983.
[6] The elevator was under a maintenance contract and the elevator company performed regular maintenance on it. The elevator passed all annual and monthly inspections and the licence for the elevator had been renewed when it broke down on November 28, 2012. The reason the elevator broke down was a latent defect with the brake drum.
[7] When the elevator broke down in November 2012, the landlord decided to begin the process to replace the elevator. In the interim, it took steps to get the elevator back in operation as quickly as possible. It paid in excess of $30,000 in costs to a third party elevator company in this regard.
[8] The elevator was out of service for a total of 96 days between November 28, 2012 and October 4, 2013. During the entire period May 8-20, 2013, the elevator was not functioning at all on the fourth floor.
[9] The landlord attempted to keep the tenants updated about service interruptions. However, three periods of interrupted service totalling 36 days were unplanned and therefore unannounced.
[10] At one point during the relevant time period, there was a province-wide elevator technician strike. The elevator was originally scheduled to be shut down for a six-week period from May 13 to June 21, 2013 in order to replace the elevator, but due to the strike the scheduled shutdown was pushed back until August 6, 2013.
[11] The tenants, some of whom are elderly or have mobility issues, experienced a great deal of difficulty living in a building without a functioning elevator, and often lived in a state of [page300] uncertainty not knowing if or when the elevator would cease functioning.
[12] The landlord paid $15,400 in labour costs for runners to assist tenants who had difficulty climbing stairs with day-to-day tasks and a further $5,200 to obtain an evacuation chair for use in emergencies while the elevator was out of operation.
C. Decisions Below
(1) Landlord and Tenant Board, January 3, 2014
[13] The board stated that the primary issue was the interference and inconvenience that the tenants had experienced as a result of ongoing repairs to the elevator and the installation of a new elevator and whether the tenants were entitled to an abatement of rent because the landlord failed to meet its obligations under the Act or comply with health, safety, housing or maintenance standards.
[14] After reviewing the evidence of three tenants who testified at the hearing, the board found that the interference that the tenants experienced because of problems and repairs to the old elevator and the installation of a new elevator caused serious inconvenience and disruption to the lives of the tenants of the residential complex. However, the board noted that the tenants did not present any evidence to substantiate their claim that the interference caused by the shutdown of the elevator was unreasonable in the circumstances or that they asked for and were refused accommodation by the landlord. The board found that, on a balance of probabilities, the landlord responded to these circumstances in the best way it could have, and the interference and inconvenience caused to the tenants was reasonable in the circumstances.
[15] The board found further that the landlord took reasonable steps to keep the tenants informed, to provide them with assistance while the elevator was not working, and also to ensure that staff was ready and available to assist the tenants, occupants and guests, so as to mitigate any hardship caused to the tenants by the elevator problems.
[16] Because the application was brought pursuant to s. 29(1) 1 of the RTA based on an alleged breach of s. 20(1), the board observed that the requirements of O. Reg. 516/06, s. 8, did not apply in this case as that section of the regulation applies only to applications under ss. 22, 29(1)3 and 31(1) of the RTA. Nonetheless, the board found that the landlord met the notice requirements contained in s. 8(4)1 of the regulation and, with reference to s. 8(5)1, that "the work was absolutely necessary to [page301] protect the physical integrity of the residential complex and the safety and security of the tenants, and the work was carried out in a reasonable timeframe".
[17] Turning to O. Reg. 517/06, s. 43, the board observed that that provision required that "Elevators intended for use by tenants shall be properly maintained and kept in operation except for such reasonable time as may be required to repair or replace them." The board agreed with the landlord that the landlord's obligation was "to have a proper maintenance schedule and to act reasonably in repairing or replacing deficient items".
[18] The board noted that the tenants did not enter any evidence to demonstrate that the landlord failed in its obligation to repair or maintain the elevator, but that the landlord did present evidence, and the parties agreed in their statement of facts, that service contracts were in place and that proper maintenance was being done up until a latent defect caused the elevator to break down.
[19] The board found that the landlord acted in a proactive manner and against its economic interest by spending $30,000 so that the original elevator could provide service until a new elevator could be installed, and by spending over $15,400 in labour costs for runners and $5,200 for an evacuation chair. The landlord changed service providers when it determined that this was the best thing to do, then arranged to have the elevator replaced as quickly as possible.
[20] The board observed that none of the cases filed by the tenants resulted in an order for a rent abatement where the landlord rectified maintenance problems fully, effectively and in a reasonable time frame.
[21] The board chose to apply the board's Interpretation Guideline 5, which applies to ss. 20 and 29(1) of the RTA -- the sections under which this application was made. The board observed that Guideline 5 provides that no abatement ought to be awarded where a deficiency has occurred due to a latent defect; the landlord has taken reasonable steps to remediate the deficiency; the landlord has a reasonable programme of maintenance; and the landlord has acted responsibly to rectify a problem that required extensive repairs.
[22] The board found the criteria in Guideline 5 had been met, that the tenants had not proven the merits of their claim for an abatement of rent on a balance of probabilities, and that the landlord fulfilled all of its contractual and statutory obligations.
[23] The board dismissed the tenants' application. [page302]
(2) Divisional Court, January 26, 2015
[24] The Divisional Court first observed that s. 210 of the RTA provided for a right of appeal on a question of law, and that the standard of review was reasonableness. The court noted that the parties agreed that the landlord acted reasonably in maintaining the elevator until it was replaced. The court concluded [at para. 5] that the board "was entitled to construe its home statute in a fashion that enabled it to consider the landlord's actions, in the circumstances that were presented, in deciding whether the landlord had fulfilled its responsibility under [s. 20 of the RTA]". Having found no error of law, the Divisional Court dismissed the appeal.
D. Issues
[25] This appeal raises two issues:
(1) Did the Divisional Court err in its selection and application of the standard of review?
(2) Did the board err in its interpretation of s. 20 of the RTA; specifically, was it an error of law to refuse to order an abatement of rent to tenants who had suffered serious inconvenience and disruption on the basis that the landlord's behaviour was reasonable?
E. Discussion and Analysis
(1) Did the Divisional Court err in its selection and application of the standard of review?
(a) General principles
[26] As the Divisional Court observed, s. 210 of the RTA provides for a statutory right of appeal from the board's decisions on a question of law.
[27] Where there is a statutory right of appeal from the decision of an administrative tribunal to the Divisional Court, this court must decide whether the Divisional Court identified the appropriate standard of review and applied it correctly. To do so, the court steps into the shoes of the Divisional Court and focuses on the administrative decision: see Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, [2013] S.C.J. No. 36, 2013 SCC 36, at paras. 46-47; Taylor-Baptiste v. Ontario Public Service Employees Union (2015), 126 O.R. (3d) 481, [2015] O.J. No. 3528, 2015 ONCA 495, at para. 39. This administrative law principle also applies when leave has been granted in this context for a further appeal to this court, [page303] given that the applicable standards of review are those that apply on judicial review, not on an appeal: see Mouvement laïque québécois v. Saguenay (City), [2015] 2 S.C.R. 3, [2015] S.C.J. No. 16, 2015 SCC 16, at para. 29.
[28] Where an administrative tribunal interprets or applies its home statute, the standard of review is presumptively reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, at para. 39. A correctness standard may apply if the question at issue is both of central importance to the legal system and outside the adjudicator's specialized area of expertise: Alberta (Information and Privacy Commissioner), at para. 46. However, this exceptional category must be interpreted conjunctively and not as separate and distinct factors: see Loewen v. Manitoba Teachers' Society, [2015] M.J. No. 21, 2015 MBCA 13, 315 Man. R. (2d) 123, at para. 48.
[29] Where, as here, the jurisprudence has already determined the standard of review and thus the degree of deference to be accorded to a particular category of question before a given administrative tribunal, this will end the inquiry: see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 62; First Ontario Realty Corp. v. Deng, [2011] O.J. No. 260, 2011 ONCA 54, 274 O.A.C. 338, at para. 20. Subject to the exception stated above, decisions of the board are subject to review on a standard of reasonableness: Deng, at para. 21. In Deng, this court held, at para. 21, that the board administers a specialized adjudicative regime for resolving residential tenancy disputes, and where it is required to interpret its "home statute" (the RTA) and regulations, with which it has particular familiarity, in making determinations with respect to its core functions, deference is owed to its decisions.
[30] In the present case, determining whether to order an abatement of rent based on a breach of the landlord's duties to repair and maintain under s. 20(1) is one of the board's core functions and required the board to interpret the RTA and related regulations.
[31] Applying these general principles, unless the tenants can persuade the court that the issue before us is both of central importance to the legal system and outside the board's expertise, the standard of review to be applied to the board's decision is reasonableness.
(b) The tenants' position
[32] The tenants' position is that the Divisional Court erred in not applying a standard of correctness to the board's interpretation of s. 20. Their position may be summarized as follows. [page304]
[33] This is a statutory appeal in which the court has broad appellate powers. There are no facts in dispute. A discrete question of law is raised.
[34] The Divisional Court relied on Deng in holding that the standard of review was reasonableness, but that case does not stand for the proposition that the standard of review for all decisions of the board is reasonableness or that reasonableness means absolute deference. Even assuming deference is owed to a tribunal's interpretation of its home statute, there are circumstances in which no deference is appropriate. One circumstance is where the question of law is of central importance to the legal system. This is such a circumstance. Appellate direction regarding the significance of statutory duties will foster consistency in the law and predictability in litigation outcomes, important goals in all cases, but particularly in the context of remedial legislation with a tenant protection focus. Correctness is the appropriate standard of review when a tribunal undertakes an exercise in statutory interpretation in which it has no more expertise than an appellate court, and where the issue on appeal deals with the distinction between the legal principles of contract and tort.
(c) The Divisional Court did not err in its selection of the appropriate standard of review
[35] The same reasoning as in Deng applies to the appeal before us: the scope of the landlord's maintenance and repair obligations and the remedy for any breach of those obligations, such as rent abatement, are wholly within the board's specialized expertise. The issue before the board involved a highly contextual and fact-based exercise relating to its core function; accordingly, deference is owed to its decision.
[36] Given that the issue for determination by the board was within its specialized area of expertise, the tenants are unable to meet at least one of the two conjunctive requirements to bring this case within the exceptional category of cases to which a standard of correctness applies, it is unnecessary to consider the second requirement, namely, whether the question was also of central importance to the legal system.
[37] The tenants' assertion that the standard of review of the board's decision is correctness fails. The Divisional Court did not err in selecting reasonableness as the standard of review. [page305]
(2) Did the Divisional Court err in holding that the board's interpretation of s. 20 of the Act was reasonable?
(a) General principles of statutory interpretation
[38] The current state of the law of statutory interpretation recognizes that meaning flows at least partly from context and that a statute's purpose is an integral element of that context: see Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011), at pp. 300-301.
[39] The question as to how a statutory provision should be interpreted has been answered definitively by the Supreme Court of Canada. On numerous occasions, the court has adopted the approach to statutory interpretation espoused by E.A. Driedger as the only applicable approach, namely:
[T]he words of an Act are to 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.
See Rizzo and Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26; Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), [2006] 1 S.C.R. 865, [2006] S.C.J. No. 24, 2006 SCC 24, at para. 36; Tsilhqot'in Nation v. British Columbia, [2014] 2 S.C.R. 257, [2014] S.C.J. No. 44, 2014 SCC 44, at para. 108.
[40] In determining parliamentary or legislative intent, courts are reluctant to accept interpretations that would violate established legal norms: see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), at pp. 8-9.
[41] In her chapter on coherence, Sullivan states the governing principle, at p. 337, as follows:
It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal.
(Citation removed)
[42] Sullivan also points out, at pp. 340-41, that it is not unusual for an administrative body to be given overlapping powers by the legislature; when this happens, each is meant to apply, and overlap between powers is not a basis for narrowing their scope. [page306]
[43] The interpretation given to a statutory provision must produce harmony both within the statute itself and with other legislation dealing with the same subject matter: see R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, [2001] S.C.J. No. 55, 2001 SCC 56, at para. 30; Bell ExpressVu, at para. 27; R. v. Stucky, [2009] O.J. No. 600, 2009 ONCA 151, 256 O.A.C. 4, at para. 37; McAteer v. Canada (Attorney General) (2014), 121 O.R. (3d) 1, [2014] O.J. No. 3728, 2014 ONCA 578, at para. 55, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 444, 2015 CarswellOnt 2680, 2015 CarswellOnt 2681. This is known as the principle of harmonization.
(b) The tenants' position
[44] The tenants advance several arguments under this ground of appeal. In sum, they submit that, in dismissing the tenants' application for rent abatement, the board's decision did not fall within a range of reasonable outcomes. The tenants ask that their appeal be allowed, the order of the board set aside and their case remitted back to another board member to consider with such directions as this court considers appropriate.
[45] First, the tenants submit that even if a reasonableness standard of review is appropriate, deference does not mean that the Divisional Court should simply endorse the board's interpretive approach without undertaking its own analysis and providing its own reasons.
[46] Second, the tenants challenge the board's adoption of a reasonableness standard in assessing the difficulties suffered by the tenants and the conduct of the landlord. In that respect, the board erred in its interpretation of s. 20 because it conducted its analysis using a faulty legal premise, applying principles from tort law instead of contract law when the duties in s. 20 are implied terms of every tenancy agreement and contractual in nature. The board erred in holding that where the landlord made reasonable efforts to comply, the statutory duty was negated, as under contract law, non-compliance is not excused by the reasonableness of the landlord's conduct. The tenants did not receive a service that was part of their statutory contract.
[47] In support of their submission that the reasonableness of the landlord's conduct is not a factor to be considered under s. 20, the tenants rely on Offredi v. 751768 Ontario Ltd., 1994 CanLII 11006 (ON SCDC), [1994] O.J. No. 1204, 72 O.A.C. 235 (Div. Ct.), decided under similar predecessor legislation. In that case, the application judge found that although the landlord had taken steps to clean up the [page307] building and to keep it that way, an abatement of rent should be paid to the tenants. In Offredi, in dismissing the landlord's appeal, the Divisional Court stated [at para. 5]:
In our judgment, this is not a case that turns on whether the landlord can be said to have acted reasonably. What the tenants claim is a breach of contract. The tenants were paying full rent for premises which the landlord was under an obligation, under the Landlord and Tenant Act, to keep in a good state of repair and fit for habitation. The landlord failed to do that. That is the basis of the clam for an abatement.
(Emphasis added)
[48] Third, the tenants also rely on Harris v. Toronto Community Housing Corp., [2009] O.J. No. 2873, 2009 CanLII 34989 (Div. Ct.). In that case, the court held, at paras. 14-17, that the use of the terms "absolute liability" and "strict liability" from the criminal, regulatory or tort context had "no application in the interpretation and application of a remedial statutory provision governing residential tenancies".[^2] The section at issue in Harris allowed a landlord to give a tenant an eviction notice if the tenant's act or omission seriously impaired the safety of any person. Bryant J., writing for the court, held that the section did not incorporate a fault element as do regulatory offences which allow a due diligence defence, and contrasted the section with other sections of the legislation which specifically included a fault element.
[49] In the case before us, counsel for the tenants points out that the landlord's obligation to maintain premises in good repair found in s. 20(1) does not refer to reasonable efforts. They submit that as soon as the elevator went out of service the landlord was in breach of its obligation to maintain. The time period for the landlord to repair or to replace the elevator meant that the elevator was not in a good state of repair during that time and the landlord was accordingly in breach of its obligations. Consequently, the board erred in taking into consideration the landlord's maintenance and repair efforts and whether they were reasonable. [page308]
(c) The Divisional Court did not err in holding that the board's interpretation of s. 20 of the Act was reasonable
[50] For the reasons that follow, I would agree with the conclusion of the Divisional Court that the board's interpretation of its home statute and its decision in refusing to award an abatement of rent to the tenants was reasonable.
(i) The tenants' proposed interpretation of s. 20(1) would offend the general principles of statutory interpretation
[51] The interpretation of s. 20(1) proposed by the tenants would result in the legislation not functioning logically to form a rational, internally consistent framework, and thus offends the general principles of statutory interpretation.
[52] For example, s. 21(1) of the RTA states that a landlord shall not "withhold the reasonable supply of any vital service, care service or food that it is the landlord's obligation to supply under the tenancy agreement . . .". If a landlord is obligated to pay another person to provide the vital service, care service, or food and the landlord fails to do so, s. 21(2) deems the landlord to have failed to provide the service. A vital service is defined in s. 2(1) as "hot or cold water, fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat". The landlord does not breach s. 21(1) simply because the landlord is unable to provide a vital service, care service or food. It is the "reasonable supply" of these things that is required.
[53] An elevator is included within the definition of "services and facilities" in s. 2(1). To interpret s. 20(1) such that a landlord is in breach of the obligation to maintain elevator service as soon as any interruption in that service occurs would be to place a higher obligation on the landlord to provide a non-vital service than to provide a vital service. Such an interpretation is not rational.
[54] There is an overlap between s. 20(1) and s. 22 of the RTA. Section 22 provides:
- A landlord shall not at any time during a tenant's occupancy of a rental unit . . . substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.
[55] In this case, the tenants allege that the landlord's breach of s. 20(1) resulted in a substantial interference with their use and enjoyment of the premises. In oral argument, the tenants acknowledged that they could also have brought their [page309] application under s. 22, which obliges a landlord not to interfere with a tenant's reasonable use and enjoyment of the premises. However, O. Reg. 516/06, s. 8(3)(b) states that "the Board shall not determine that an interference was substantial unless the carrying out of the work constituted an interference that was unreasonable in the circumstances with the use and enjoyment of the rental unit . . .". Further, s. 8(4) provides that even if the board finds that there was substantial interference with the tenant's reasonable use and enjoyment, the board shall not order an abatement of rent if the landlord has complied with ten listed conditions, including notifying the tenants of upcoming work. Because the application was brought under s. 20(1), the board acknowledged that s. 8 did not apply but it found, pursuant to the agreed statement of facts, that the landlord had complied with the notice requirements set out in s. 8. With respect to the other conditions in s. 8, the board held that the work was necessary to protect the physical integrity of the complex and that "the work was carried out in a reasonable time frame". This leads to the conclusion that, had the tenants brought their application for rent abatement under s. 22, it would not have succeeded.
[56] To interpret s. 20(1) as the tenants propose would result in an interpretation that places the provisions of s. 20(1) and s. 22 in conflict or disharmony with one another and disregard the intent of the legislature that where, as here, there is an overlap, both provisions should apply. The tenants' reading of the RTA does not result in the legislation functioning as an internally consistent whole.
[57] The contextual approach required when interpreting the provisions of a statute leads me to also consider the wording of s. 29(1), which states:
29(1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:
- An order determining that the landlord has breached an obligation under subsection 20(1) or section 161.[^3]
[58] If the legislature intended an automatic breach of the landlord's duty to maintain and repair as soon as a service was interrupted, there would be no need for the board to make a determination as to whether the landlord had breached its [page310] obligation. The legislation would instead simply provide that where a service has been interrupted the landlord is in breach of its duty to maintain and repair and provide that the board "may" award a remedy under s. 30(1), which authorizes a range of remedies including an abatement of rent.
[59] The tenants' position that the landlord is automatically in breach of its statutory obligation to maintain and repair even while something is being repaired also offends the legal maxim lex non cogit ad impossibilia: that the legislature does not intend compliance where, for all practical purposes, it is impossible: see Côté, The Interpretation of Legislation in Canada, at p. 479.
[60] Applying general principles of statutory interpretation, I would reject the tenants' submission that, when the RTA is properly interpreted, a landlord is automatically in breach of its obligation to repair and maintain under s. 20(1) as soon as an interruption in service occurs.
(ii) Existing jurisprudence must be viewed through a contextual lens
[61] The tenants' position also ignores important aspects of existing jurisprudence.
[62] In Stephos Management Services v. McGregor, [1993] O.J. No. 1179, 1993 CarswellOnt 3655 (Gen. Div.), Charron J., as she then was, dealt with a situation in which a tenant claimed a rent abatement for the time he was out of his apartment when the landlord undertook an extermination procedure to rid the building of cockroaches. After notice was given to the tenants, the extermination procedure in the 134 units took place with the tenants being required to be out of the building from 8:30 a.m. to 6:00 p.m. on one of two days when their half of the building was treated.
[63] In her recitation of the facts, in para. 7, Charron J. noted that the landlord made other units available for tenants who indicated a need for alternate accommodation during the process. In addition, the "party room" at a neighboring building was made available.
[64] At para. 13 of her reasons, Charron J. held that the landlord was not in breach of its obligation to provide premises fit for habitation:
While it is beyond dispute that the responsibility to rid premises of cockroaches rests on the landlord, the problem is an interesting one since it is not likely to be caused by any actions of a landlord unless he or she is also an inhabitant of the building in question. On the other hand, the tenants can be and are often the source of the problem. They usually bring in the pests into the building with their belongings or with food that they carry in, albeit quite inadvertently, and then, in the case of some tenants [page311] (not necessarily the same who are afflicted by the problem) foster their existence by their particular living habits. A finding that a landlord not only has the responsibility to attend to a problem, the existence of which is essentially out of his control, but that he is automatically in breach of his statutory obligations the moment the problem does arise defies common sense and is grossly unfair.
(Emphasis added)
[65] So too, here, the latent defect in the elevator, the difficulty obtaining replacement parts, the province-wide elevator technician strike, and the length of time it took to install the new elevator were all matters beyond the landlord's control, and were acknowledged as such by the tenants in the agreed statement of facts before the board: "The landlord's efficacy, efficiency, diligence or reasonableness of its actions regarding the elevator problem is agreed to be deemed satisfactory by the tenants."
[66] A subsidiary submission of the tenants is that Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), [1976] 2 S.C.R. 520, [1975] S.C.J. No. 87 entitles them to an abatement of rent because of the length of time the elevator was out of service. In Pajelle, the court was dealing with the landlord's obligation ". . . for providing and maintaining the rented premises in a good state of repair . . ." under s. 96(1) of The Landlord and Tenant Act, R.S.O. 1970, c. 236. The appellant landlord had advertised that the premises were air-conditioned and that there was an indoor swimming pool and sauna bath available for the tenants. These amenities were not provided for a period of time. The County Court judge, upheld by the Court of Appeal, granted an abatement of rent for temporary loss of common facilities and the landlord appealed.
[67] In delivering judgment on behalf of the court, Spence J. stated, at p. 528 S.C.R.:
I am ready to agree that it would be only in the most exceptional circumstances that a court should grant an abatement for rent because of the failure to provide repairs and services during a short period required for necessary repairs and renovations. That is not, however, the allegation or the evidence in the present case. On the other hand, the evidence is that the air-conditioning was not supplied at all during the mid-summer month of July in the year 1971 and that no use of the sauna bath or swimming pool was provided from November 1971 to March 1972. Those are important and long continuing delays in providing the facilities which it was the responsibility of the landlord to provide and the learned County Court Judge was perfectly justified in considering they would have to be compensated for by an abatement in rental.
[68] I disagree with the tenants that the reasoning in Pajelle applies to this case. As the landlord points out in its factum, the word "delay" means more than a lengthy passage of time. Used as a noun, "delay" is defined in The Shorter Oxford English Dictionary [page312] as, "1. The action or process of delaying; procrastination; lingering; putting off. 2. Hindrance to progress; (a period of) time lost by inaction or inability to proceed."
[69] In this case, the board found that the landlord acted diligently in effecting repairs to the elevator and arranged to have the elevator replaced as quickly as possible when that became necessary. These are findings of fact by the board not subject to review on appeal: see RTA, s. 210; Jemiola v. Firchuk, [2005] O.J. No. 6085, 206 O.A.C. 251 (Div. Ct.), at para. 12.
[70] Further, in light of the evolution of the law since the decision of the Supreme Court in Pajelle, I read that decision as indicating that context is important, with only one of the factors being the length of time a facility or service was interrupted or never provided. Such a reading is appropriate having regard to the interpretive principle that legislation enacted to regulate an activity that is ongoing over an extended period of time invites a dynamic, as opposed to a fixed, interpretation: Sullivan on the Construction of Statutes, at pp. 171-72.
[71] Other jurisprudence on which the tenants rely, such as Offredi, also supports the conclusion that a contextual approach is necessary. In Offredi, the tenants' application for rent abatement was based on alleged deficiencies in maintenance, including a five-day power outage in December; a shortfall in parking facilities resulting from a number of repairs to the underground garage over a period of approximately 12 months; an inadequate hot water supply; and an elevator service that fell far short of what could have been expected in a 20-storey building which was characterized as a "serious problem" rather than a mere inconvenience. In addition, the premises were kept in a dirty and poorly maintained state, including the stairwells being littered with a myriad of alien objects and garbage rooms where garbage was allowed to collect for days. Inadequate security was provided for the building. There does not appear to have been any evidence that the landlord offered the tenants any accommodation in return. On the contrary, in relation to the repairs to the parking garage, some of the tenants were forced to park in prohibited areas, thereby incurring parking tickets and in one case a tenant had his car vandalised.
[72] Thus, Offredi was not a case that turned on whether the landlord could be said to have acted reasonably because there was no evidence that it had done so. It was instead forced to act. While the landlord ultimately complied with its obligations, it had failed to do so in the past and it was in respect of occupation for the period of time in which the deficiencies existed in the past that rent abatement was ordered. [page313]
[73] The comment of the Divisional Court [at para. 5], that " . . . this is not a case that turns on whether the landlord can be said to have acted reasonably", should not be read as indicating that the reasonableness of the landlord's actions should never be taken into consideration in any case dealing with a claim for rent abatement, because that is not what the court said. Rather, the court held that the tenants had not received what they bargained for. Part of the context in which the decision must be read is that the landlord did not provide any quid pro quo to the tenants when a facility, parking, was undergoing repair over an extended period of time. Furthermore, the landlord was in a position to exercise a high degree of control over aspects of the problems such as the prior maintenance of the parking facility, general maintenance of walls and carpets, garbage removal and security.
[74] Moreover, the decision in Offredi is congruent with Guideline 5. Under the heading "Is There Liability for Abatement During Repairs or Replacements?", Guideline 5 states:
If a landlord has done little maintenance for an extended period, and a serious condition results that takes some time to rectify, the landlord should be responsible for the tenants' loss of use of their unit or the common facilities during the repairs. However, if the landlord has a reasonable program of maintenance, including preventative maintenance, and is acting responsibly to rectify a problem that requires extensive repairs, an abatement of rent should not be ordered.
[75] In Deng, this court dealt with a related provision in the RTA, s. 130, which permits tenants to seek a rent reduction from the board if services or facilities provided for a unit or residential complex are reduced or discontinued. At para. 35 of her reasons, Karakatsanis J.A. observed, on behalf of the court:
In the context of this legislative scheme, it is presumed that a reasonable charge for the "services and facilities" is included in the rental value of the units and that the rent reduction is equal to a reasonable charge for the reduction or discontinuance of those services and facilities. The Regulation provides that the reasonable charge is determined, if possible, by the cost of that service or facility to the landlord. In other words, the Act and Regulation seek to ensure that if tenants lose some part of the services or facilities that were provided to them as part of their rent, any cost savings by the landlord is passed on to the tenants. However, the Regulation also provides for a rent reduction even where there are not cost savings to the landlord, or where they cannot be determined. In these circumstances, the tenant is still entitled to a rent reduction that is equal to what would be a reasonable charge for the service or facility based on their value.
[76] In Deng, the landlord had permanently removed a significant portion of the garden, lawn and walkways behind a residential complex because it intended to build townhouses on this land and the board held that, as a result, there had been [page314] a reduction of a recreational facility and it ordered a rent reduction of 2.5 per cent. On appeal, the Divisional Court held that the land in question did not constitute a "service or facility", but that even if it was, it was questionable whether the facility had been reduced.
[77] On further appeal, this court upheld the result reached by the Divisional Court using a different analysis. Applying a standard of reasonableness to review of the board's decision, this court held that the board's conclusion on the definition of a "common recreational facility" was reasonable and then considered whether there had been a reduction in the provision of a facility. The court held, at para. 54, that while the size of the recreational facility was clearly relevant to a determination of whether there had been any reduction in the facility, "it cannot reasonably be the only factor in these circumstances" (emphasis added), going on to explain that "[n]ot every change in a 'service or facility' or in 'common recreational facilities', viewed objectively, will necessarily be a reduction of the common recreational facility, even if some aspect of it is removed or changed".
[78] In a negotiated process involving the landlord, the city and the tenants, the city attached conditions to the severance of the lands requiring the landlord to invest significant funds to the overall improvement of the complex, including the remaining landscaped areas, and the landlord agreed not to seek a rent increase based on these improvements. This court held, at para. 55, that the board's failure to consider the nature of the changes in the remaining landscaped areas in addition to the reduction in the metes and bounds of the recreational facility resulted in its decision not meeting the criteria of a reasonable decision-making process. Thus, the board's decision was not an outcome that was within the range of reasonable possible outcomes. The facilities had been changed, but not reduced, and this court held, at para. 58, that as a result the board erred in awarding a rent reduction.
[79] An important point arises out of Deng. It is this: the court did not read the word "reasonable" into a provision where none existed; it simply adopted a contextual approach and held it was necessary to consider all of the particular factual circumstances in reaching a decision. Because the board only had regard to one factor, namely, the reduction in the size of the facility, it had not adopted a contextual approach, and so its decision was not within the range of reasonable outcomes.
[80] Deng illustrates that tenants do not bargain for a particular service or facility that can never be changed or interrupted. Looking at the jurisprudence as a whole, it appears that [page315] a landlord ought to provide something in exchange for a significant interruption or discontinuation of a particular facility or service. The adequacy of what is provided is to be adjudged by regard to the legislation and regulations under the RTA, the board's Guidelines and the particular factual circumstances, including the reasonable expectations of the parties viewed objectively.
(iii) Analysis of alleged errors in the board's approach
[81] In this case, the board took into consideration the impact of the interruption in service on the tenants, that the tenants' main complaint was interference with their use and enjoyment of the premises, the statutory provision (s. 22) that specifically dealt with use and enjoyment, and the fact that had the application been brought under that section it would not have succeeded.
[82] Similarly, the board took into consideration the provincial legislation applicable to elevators, O. Reg. 517/06, s. 43 of which states that, "Elevators intended for use by tenants shall be properly maintained and kept in operation except for such reasonable time as may be required to repair or replace them." The board considered the fact that the landlord did provide accommodation to the tenants during the service interruption and held this was a factor that distinguished this case from the jurisprudence put forward by the tenants. Finally, the board took into consideration that this was a latent defect and applied Guideline 5. In other words, the board adopted a contextual approach.
[83] The tenants are critical of the contextual approach adopted by the board and allege four resulting errors which I now propose to specifically address. They are (1) consideration of the reasonableness of the landlord's actions; (2) consideration of s. 8 of O. Reg. 516/06; (3) reference to provincial maintenance standards which did not govern because there was a municipal by-law in place; and (4) application of Guideline 5.
(iv) Reasonableness
[84] The tenants submit that the board read into s. 20(1) a requirement that the tenants must prove the landlord acted unreasonably before a breach of the section could be found. I disagree that this is what the board did. In adopting a contextual approach, the board was not reading wording into the legislation that was never intended, but was instead considering the entirety of the factual situation before it in determining whether a breach of the landlord's obligation under s. 20(1) occurred. [page316]
[85] The tenants submit that, in considering O. Reg. 516/06, s. 8, the board adopted a test from regulations which did not apply. While the board acknowledged that the regulation did not apply because the application was brought under s. 20, the tenants submit that the board was not entitled to adopt the considerations embodied by s. 8, including the consideration that no abatement of rent is payable when the work is necessary and carried out in a reasonable timeframe.
[86] I disagree. It was entirely reasonable for the board to take into consideration the real basis of the tenants' complaint, being the impact on their use and enjoyment of the premises, and the specific section and regulation that deals with interference with use and enjoyment because, as indicated above, one of the general principles of statutory interpretation is the principle of harmonization which requires that legislation dealing with the same subject matter in a statute be given a consistent interpretation.
(vi) Provincial maintenance standards
[87] The tenants submit that the board erroneously relied on O. Reg. 517/06, s. 43, dealing with the provincial maintenance standards for elevators, because that section only applies where there is no by-law in existence, and here, the City of Kingston has a by-law. In their factum, the tenants state that the wording of the relevant Kingston by-law is "Elevators intended for use by tenants shall be properly maintained and kept in operation". In other words, the tenants say that the Kingston by-law omits the exception for "such reasonable time as may be required to repair or replace them" found in the provincial regulation.
[88] The landlord objects to any consideration of the wording of the Kingston by-law because, at the hearing before the board, the tenants' counsel noted that the City of Kingston may have different language in its property standards by-law, and although the adjudicator gave the tenants the opportunity to provide evidence of the by-law, they did not do so. As a result, the landlord submits that the Kingston by-law is not properly before this court.
[89] It appears that the weight of the authorities is that, unlike other domestic legislation, judicial notice cannot be taken of a municipal by-law: see R. v. Dowslay (1890), 19 O.R. 622, [1890] O.J. No. 192 (H.C.J. (Div. Ct.)), at p. 622-23 O.R.; R. v. Snelling, [1952] O.W.N. 214 (H.C.), at p. 215; R. v. The Evgenia Chandris, 1976 CanLII 178 (SCC), [1977] 2 S.C.R. 97, [1976] S.C.J. No. 57, at p. 100 S.C.R., per Laskin C.J.C. (dissenting, but not on this point); [page317] Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis Canada, 2014), at para. 19.40; David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 515.
[90] That said, I do not think that anything turns on this point. As I have indicated, the principle of harmonization applies not only within the same statute but across legislative instruments dealing with the same subject matter. Both the provincial maintenance standards and the Kingston by-law deal with the same subject matter. Applying the principle of harmonization, I would be inclined to interpret the Kingston by-law in the same manner as the provincial standard, but, as the by-law was not adduced in evidence before the board and we did not hear submissions on its proper interpretation, I do not purport to come to any definitive conclusion. Suffice it to say that, in the circumstances, the board's consideration of provincial maintenance standards was not an error.
(vii) Guideline 5
[91] I turn now to the tenants' objection to the board's application of Guideline 5. Section 176(1) of the RTA provides that the chair of the board shall establish a Rules and Guidelines Committee. Section 176(3) states: "The Committee may adopt non-binding guidelines to assist members in interpreting and applying this Act and the regulations made under it." Guideline 5, entitled "Breach of Maintenance Obligations", was developed to assist in matters arising under ss. 20, 29 and 30 of the RTA. Although not binding, it is expected that board members will follow the guideline. Rule 26.3 of "The Landlord and Tenant Board's Rules of Practice" states: ". . . the [board] shall give reasons for departing from a guideline whether or not reasons are requested".
[92] The tenants submit that it was an error of law for the board to treat the commentary in this non-binding guideline as establishing the elements of the test for whether the landlord had met its duties under s. 20. They submit that, instead, the board should have applied the "clear words" of the statute.
[93] As I have indicated earlier, the interpretation of s. 20(1) for which the tenant's argue, that the landlord is automatically in breach of its obligation to maintain and repair whenever there is an interruption in elevator service, is not at all clear. Indeed, for the reasons given above, I have rejected the tenants' proposed interpretation having regard to both general principles [page318] of statutory interpretation and the existing jurisprudence. The approach advocated by the tenants would focus only on the length of time the elevator was out of service and the resulting inconvenience to the tenants, and not on the entire factual context in which the interruptions in service took place. The board rejected that approach and adopted a contextual one. The tenants' incorrect interpretation of s. 20(1) does not provide the base from which to attack Guideline 5. The board was entitled to have regard to Guideline 5.
F. Disposition and Costs
[94] For the reasons I have given, I would dismiss the appeal. The parties agree that irrespective of the outcome of this appeal, no costs should be awarded. Accordingly, I would not order any costs.
Appeal dismissed.
Notes
[^1]: Section 20(2) provides: "Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement." However, in the event it is determined the landlord is in breach of its obligations under s. 20(1), a consideration in determining the remedy granted by the board is whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the board: see RTA, s. 30(2).
[^2]: In Harris, the Divisional Court was dealing with s. 65(1) of the Tenant Protection Act, 1997, S.O. 1997, c. 24, now repealed, which provided: "A landlord may give a tenant notice of termination of the tenancy if, (a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and (b) the act or omission occurs in the residential complex."
[^3]: Section 161 is found in Part X of the RTA, "Mobile Home Parks and Land Lease Communities"; it assigns duties to a landlord of a mobile home park in addition to s. 20(1) and is not relevant to this appeal.
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