Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Secord Ave.
CITATION: Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Secord Ave., 2012 ONSC 6733
DIVISIONAL COURT FILE NO.: 268/12
DATE: 20121126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON AND LEDERER JJ.
BETWEEN:
GONTE CONSTRUCTION LIMITED Landlord (Respondent in Appeal)
– and –
TENANTS OF 90 EASTDALE AVENUE and 2 SECORD AVE. Tenants (Appellants)
Joseph J. M. Hoffer and Kristin Ley, for the Landlord (Respondent in Appeal)
Karen Andrews, for the Tenants (Appellants)
HEARD at Toronto: November 26, 2012
SWINTON J. (orally)
[1] A number of tenants from 90 Eastdale Avenue and 2 Secord Avenue, Toronto appeal from the decision of the Landlord and Tenant Board dated April 30, 2012, as well as the Board’s interim orders.
[2] An appeal lies to this Court only on a question of law (see Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210).
[3] The Board was interpreting and applying its home statute. It was determining issues that were within its core functions – for example, whether the landlord’s conduct constituted harassment or coercion, whether there was an agreement that the landlord added a prescribed service, and whether the charge for the prescribed service was an illegal charge or an unlawful rent increase. The Court of Appeal in First Ontario Realty Corp. v. Deng, 2011 ONCA 54 has determined that the standard of review is reasonableness where the Board is applying statutory provisions that relate to its core functions (see para. 21).
[4] The current appeal raises no issues of general legal import - for example, concerning illegality of contracts.
[5] Subsection 123(1) of the Act provides that:
A landlord may increase the rent charged to a tenant for a rental unit as prescribed at any time if the landlord and the tenant agree that the landlord will add any of the following with respect to the tenant’s occupancy of the rental unit:
- A prescribed service, facility, privilege, accommodation or thing.
[6] The Board found that the tenants who did not confirm their consent to smartmetering with Stratacon had agreed to accept electricity, a prescribed service, from the landlord and, therefore, the landlord was entitled to increase the rent pursuant to s. 123(1) of the Act. That was a reasonable interpretation of the Act and a decision that the Board was entitled to make on the evidence before it. As the Board pointed out, s. 123(2) makes it clear that the landlord was not required to give notice of the increase.
[7] The Board also found that there was no illegal charge by the landlord under s. 134 and, therefore, the tenants were not able to claim compensation from the landlord for monies paid to Stratacon, an independent contractor and not an agent of the landlord. That too was a reasonable interpretation of ss. 134 and 135 of the Act.
[8] Finally, the Board found that there was no harassment or coercion by the landlord, nor did the landlord interfere with the tenants’ reasonable enjoyment of their rental units. The Board made findings of fact based on the evidence before it. This issue raises no question of law.
[9] Accordingly, the appeal is dismissed.
KITELEY J.
[10] I have endorsed the Appeal Book, “For oral reasons given, this appeal is dismissed. The appellants shall pay costs fixed at $10,000 provided that the appellants listed in Schedule “A” to the Notice of Appeal shall pay in equal shares and are not jointly and severally liable. Schedule “A” to the Notice of Appeal shall be attached to the judgment.”
SWINTON J.
KITELEY J.
LEDERER J.
Date of Reasons for Judgment: November 26, 2012
Date of Release: December 3, 2012
SCHEDULE A – LIST OF TENANTS
Krishnaveni Akarapa Shirin Akhter
Girim Alebachew Mary Allert
Roger Alleyne Charlene Annette
Rosita Arceo Blessing Asaswara
Aline Ataklite Estegenet Ayele
Patrick Bardos Sadia Battar
David Belanger Dustie Bennett
Teresa Bond Ramon Buenconsejo
Kurt Cairns Graciela Campos
Debatosh Choudhury Pamena Condotta
B. Conner Marc Corriveau
Lilybeth Cosico Susan Cox
Annissa Crimp Cheryl Cunning
Parvati Devi Allen Dori
Similio Dube Heba Elmoslimany
Oriser Esprit Simoh Eubank
Addonica Evana Tara-lynn Finn
Melanie Gogan Stanislav Gomes
Yu Gie Gong Kevin Hareguy
Laura Hawkins Sandi Hindi
Cristal Hollick Lorne Hyndman
Xi Jia Bryden Jones
Nahid Kabir Talimina Kahn
Melanie Kozai Yvonne Kristensen
Jennifer Lambert Anisa Latif
Jennie Layden Solomon Yohannes Lisanework
Liz Little Joseph Macdonald
Josie Maclachlan Mohammed W. Malik
James Manuel Fabian Marin
Hermon Markos Rasoul Maymandi
Aline Mbawoot Gloria Mesa
Misty Mirault Victoria Mitchell
Lyle Morris Emmah Muiruri
Nellie Munetsi-muaomba Azeema Munir
Vincent Ndondera Grant Norman
William O’Neill Elva Owang
Jason Passmore Regal Pike
Tom Puliyanmackal Rahim Quaderi
Vinnette Richards Karyn Riehl
Edward Rocha Olivia Rolfe
Aquiba Shams Marlene Sheridan
Oneil Simpson Tim Street
K. Szypniewski Ma Norma Regina Tangonan
Avia Thomas Paul Thompson
Sharif Ullah Brandy Van Benthem
Napota Vanza Elaine Vautour
Andrew Veloza Clayton Warner
Steve Warner Philip James Watts
Shamim Ahsan Laurie Woods
Qiang Xin Abu Ziauddin
Michael Zrichuk
CITATION: Gonte Construction Limited v. Tenants of 90 Eastdale Ave. and 2 Secord Ave., 2012 ONSC 6733
DIVISIONAL COURT FILE NO.: 268/12
DATE: 20121126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON AND LEDERER JJ.
BETWEEN:
GONTE CONSTRUCTION LIMITED
Landlord
(Respondent in Appeal)
– and –
TENANTS OF 90 EASTDALE AVENUE and 2 SECORD AVE.
Tenants
(Appellants)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: November 26, 2012
Date of Release: December 3, 2012