COURT FILE NO.: 600/02
DATE: 20040325
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
RE: Briarlane Property Management Inc. v. Bernice Bradt et al.
BEFORE: Ferrier, Swinton and Linhares de Sousa JJ.
COUNSEL: Tom Halinski for the Appellant Landlord
J. Irving and Neil Searles for the Respondent Tenants
HEARD: March 22, 2004
ENDORSEMENT
[1] This matter concerns an appeal from the decision of the Ontario Rental Housing Tribunal dated September 18, 2002 in which the Tribunal held that the Appellant Landlord substantially interfered with the reasonable enjoyment of the rental unit by the Respondent Tenants or by a member of their household. The Tribunal held that, while the Landlord had a statutory right to upgrade the original building locks, the Landlord did not have the right to change the locks installed by individual tenants.
[2] The facts leading to this appeal are succinctly and accurately stated in the Respondents’ Factum paragraphs 4 through 12 and need not be repeated here.
[3] An appeal from a decision of the Ontario Rental Housing Tribunal to this Court lies only on a question of law pursuant to section 196(1) of the Tenant Protection Act , 1997, S.O. 1998, c. 27 (TPA). It was not disputed that the standard of review to be applied by this Court in examining a decision of the Ontario Rental Housing Tribunal is one of correctness.
[4] Section 23 of the Tenant Protection Act now prevails in determining the rights and obligations of the parties. Section 23(1) permits the Landlord to alter the locking system in a rental unit, provided the Tenant is given replacement keys. That provision, however, must be read in conjunction with section 23(2) that permits a Tenant to alter the locking system on a door to a rental unit with the consent of the Landlord. Once given, that consent binds the Landlord for the duration of the occupancy of that Tenant. Where consent has been so given, the Landlord’s overriding right to alter the locking system pursuant to section 23(1) is subject to the change effected by the Tenant with the consent of the Landlord under section 23(2).
[5] There was evidence before the Tribunal that through its various superintendents, the Landlord consented to the installation of all of the secondary locks at issue in this appeal. In so finding, the Tribunal did not err. Accordingly, in the case of those tenants who installed a second lock or otherwise altered the locking system with the consent of the Landlord and who remain in occupation, the Landlord is not permitted to remove the secondary locks or otherwise alter them for the duration of the occupancy.
[6] However, there are a variety of fact situations relating to other tenancies. For example, a number of tenants moved into units in which secondary locks had already been installed and keys provided, either by the Landlord or the departing tenant. There was also evidence of at least one tenant who altered a secondary lock that had been installed by a previous tenant.
[7] The Tribunal determined that the landlord did not have the right under section 23(1) to remove the secondary locks because they were tenants’ property. The issue of whether these secondary locks were fixtures or not is irrelevant. This Court finds that while the Tribunal did consider the question of consent, it erred in concluding that the interpretation to be given to section 23(1) and (2) is governed by the ownership of the locks. We are of the view that the focus should have been on whether there was consent given by the Landlord to a Tenant to alter the locking system in any given tenancy. The result will depend on the facts of each particular tenancy.
[8] Accordingly, the appeal is allowed. The order of the Tribunal is set aside, and the matter is remitted to the Tribunal for a determination in the case of each tenancy, applying the proper legal test.
[9] We are of the preliminary view, albeit without having heard argument, that there should be no costs of this appeal. If counsel agree, it is so ordered. If counsel do not agree, submissions as to entitlement and quantum of costs may be made in writing within 15 days.
Released: March , 2004
Ferrier J.
Swinton J.
Linhares de Sousa J.