Court File and Parties

CITATION: Lopera v. Margosutjahjo, 2020 ONSC 7436

DIVISIONAL COURT FILE NO.: DC-19-28

LANDLORD AND TENANT FILE NO: CEL-81147-18

DATE: 20201203

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ALEXANDER LOPERA, Appellant (Tenant)

AND:

BAJU MARGOSUTJAHJO, Respondent (Landlord)

BEFORE: Swinton, Pattillo and O’Brien JJ.

COUNSEL: Milé Komlen and Dina Gang, for the Appellant

Gordon Z. Bobesich, for the Respondent

Eli Fellman, for the Landlord and Tenant Board

HEARD at Brampton (by videoconference): November 30, 2020

ENDORSEMENT

[1] The appellant tenant appeals an order of the Landlord and Tenant Board dated March 12, 2019 that granted the respondent landlord’s application to terminate his tenancy for non-payment of rent.

[2] The appeal was dismissed following the argument with reasons to follow. These are the reasons.

[3] The Board found that the tenant owed $92,070 in arrears of rent from February 1, 2014 to March 31, 2019. It ordered payment of $5,940 to the landlord from the monies that the tenant had paid in trust to the Board in accordance with an interim order for the payment of rent. As the maximum monetary award that the Board could order was $25,000, the Board ordered the tenant to pay $25,000 towards arrears within 11 days, failing which the tenancy was terminated and the landlord could enforce eviction.

[4] In the Board hearing, the tenant argued that the landlord had disappeared for six years and abandoned the property. In so doing, the landlord had failed to comply with his obligation to keep the rental premises in good repair and had interfered with the tenant’s reasonable enjoyment because of the tenant’s inability to contact the landlord.

[5] The Board considered the tenant’s claims pursuant to s. 82 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) but limited them to a one-year period pursuant to s. 29(2) of the Act. Moreover, the Board noted that any abatement of rent to the tenant would be capped at $25,000 and would not reduce the amount of arrears owing below $25,000.

[6] The tenant further submitted that the doctrine of laches applied to the landlord’s claim because there is no limitation period for a claim for arrears of rent in the Act, but the Board also rejected that argument on the basis that the landlord’s claim was by statute not equity. Moreover, the Board held that the doctrine of laches should not be used to impose a limitation period on the claim for arrears of rent where the Legislature has not imposed one.

[7] An appeal lies to the Divisional Court only on a question of law (Act, s. 210(1)). The standard of review is correctness (Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 at para. 37).

[8] The tenant argues that the Board erred in failing to consider the landlord’s abandonment of the premises for six years, leaving the tenant without a way to contact him and failing to perform the landlord’s covenants – the duty to repair and maintain the premises and the interference with the tenant’s reasonable enjoyment. He relies on s. 17 of the Act, which deals with the interdependency of covenants:

Except as otherwise provided in this Act, the common law rules respecting the effect of a serious, substantial or fundamental breach of a material covenant by one party to a contract on the obligation to perform of the other party apply with respect to tenancy agreements.

The tenant argues that he owes no arrears because of the landlord’s breach of material covenants.

[9] However, the tenant ignores the opening words of the section, “except as otherwise provided in this Act.” Elsewhere, the Act sets out provisions relating to the obligation of tenants to pay rent and the rights of tenants to pursue claims where their landlord has not met its obligations respecting maintenance and repair, including an application to the Board seeking an abatement of rent or an order to repair. Over the six years of absence by the landlord, the tenant did not pursue the landlord with respect to repairs, nor did it bring an application to the Board to obtain an order respecting repairs.

[10] Pursuant to s. 82(1), a tenant can “raise any issue that could be the subject of an application made by the tenant under this Act” when a landlord brings an application to terminate the tenancy for non-payment of rent. Here, the Board permitted the tenant to raise issues relating to repair arising within the last year. This was in accordance with the limitation period in s. 29(2) of the Act. The Board made no error of law in its treatment of the repair issues. There is no merit to the tenant’s argument respecting the lack of an obligation to pay rent because of the landlord’s failure to repair and maintain.

[11] Nor is there merit to the argument that the tenant did not owe rent because the landlord was not in contact for six years. The tenant concedes that the landlord was still paying the taxes. As the Board correctly held, there is no limitation period in the Act respecting claims for arrears.

[12] In any event, the amount awarded to the landlord, $25,000, is less than the roughly $35,000 in rent to which the landlord was entitled in the two years prior to the application. In effect, the tenant was well compensated for any harms caused by the lack of repairs over the years, as the Board observed when it rejected the tenant’s arguments.

[13] The tenant also argues that the Board should have applied the doctrine of laches to prevent the landlord from collecting rental arrears. Laches is an equitable doctrine. The Board correctly held that the doctrine is not applicable here.

[14] The Act contains no limitation period for the collection of arrears, although the legislation does have limitation periods for other remedies. For example, pursuant to s. 69 there is a limitation on how long after a notice to terminate the landlord can seek an order terminating the tenancy (30 days), but s. 69(3) says this does not apply if the application is regarding a failure to pay rent. As well, s. 29(2) puts a one-year limitation on applications with respect to the obligation to maintain. In other words, the absence of a limitation period concerning claims for arrears of rent is not a void that should be filled with the doctrine of laches but a legislative choice.

[15] For these reasons, the appeal is dismissed, and the stay of the Board’s eviction order is lifted.

[16] The landlord seeks costs on a substantial indemnity basis because of comments made by the tenant before the Board. We have no authority to deal with costs related to proceedings before the Board.

[17] Costs are awarded to the landlord on a partial indemnity basis in the amount of $4,000.00 all inclusive.

Swinton J.

Pattillo J.

O’Brien J.

Date: December 3, 2020