Court File and Parties

Court File No.: DC-24-62670
Date: 2025-03-12
Ontario Superior Court of Justice

Between:
Don Lafergola, Appellant
and
Helen French, Respondent

Appearances:
P. Guzina for the Appellant
D. Shoom for the Respondent

Heard: March 12, 2025
Judge: Bordin

Reasons for Decision

Overview

[1] The landlord appeals the September 28, 2023 order of the Landlord and Tenant Board (“LTB”) that concluded that the use of parking spot 69 by the respondent tenant is an implied term of the lease and denying its application to terminate the tenancy. The order was upheld following review on November 2, 2023.

Facts

[2] The landlord is the owner of Lancelot Towers located at 367 Geneva Street, St. Catharines (the “residential complex”). The residential complex contains 108 units.

[3] The tenant, Helen French, resides at unit 705, 367 Geneva Street pursuant to a lease agreement entered into on August 1, 2012 (the “lease”).

[4] Paragraph 1 of the lease which includes a section to indicate whether parking is outside, underground, under a carport, or in a garage is blank and appears to have a line through it. Paragraph 4 of the lease does not include any payment for parking. Clause 14(b) of the lease states: “That private automobiles will be parked only in spaces allotted to them from time to time by the landlord and not in any other space unless authorized in writing by the landlord.”

[5] At the commencement of the tenancy, the tenant was allotted parking spot 69, which is in the covered part of the parking area. The tenant was not charged for parking. The tenant agrees that the landlord directed her to park in an uncovered parking area or to start paying $40 per month for the spot she had been using for about nine years. The tenant refused to do either.

[6] The landlord served the tenant with an N5 Notice of Termination because she persisted in parking in spot 69. The landlord filed an application with the LTB to evict the tenant.

[7] On September 28, 2023, the LTB issued an order (the “LTB order”) determining that exclusive use of parking spot 69 by the tenant is an implied term of the tenancy agreement that cannot be changed by the landlord.

[8] On October 18, 2023, the landlord requested a review of the LTB order. On November 2, 2023, Member Cho of the LTB, after reviewing all the evidence, denied the request to review the LTB order (the “review order”).

The Residential Tenancies Act

[9] The lease must be interpreted in the context of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (“RTA”). As explained by the Court of Appeal for Ontario in White v. Upper Thames River Conservation Authority, 2022 ONCA 146, at para. 10, the RTA is remedial legislation designed to redress the imbalance of power between landlords and tenants. It removes leases from the ordinary contract law principles that would otherwise govern and establishes extensive statutory rights for tenants. The RTA enjoys primacy over all other legislation, save the Ontario Human Rights Code, and the parties are prohibited from waiving or limiting the protection the RTA provides.

[10] Section 2(1) of the RTA defines a “tenancy agreement” to mean a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit. Section 202(1) requires the LTB to ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and in doing so may disregard the outward form of a transaction and have regard to the pattern of activities relating to the residential complex or the rental unit.

[11] Pursuant to section 2(1) of the RTA, “services or facilities” includes parking and related facilities and rent includes the consideration paid for the right to occupy a rental unit and for any services and facilities. Section 123 provides that a landlord may increase the rent charged to a tenant if the landlord and the tenant agree that the landlord will add a parking space.

The LTB Order and Reasons

[12] In finding that it was an implied term of the lease that the tenant had exclusive use of parking spot 69 which could not be unilaterally changed by the landlord, Member Johnson considered section 14(b) of the lease and sections 2 and 123 of the RTA. Member Johnson noted that the tenant has always used parking spot 69, and no one took any issue with that for many years. Member Johnson noted that neither party can unilaterally change the terms of a lease and determined that the landlord was attempting to unilaterally change the terms of the contract.

[13] In the review order, Member Cho found that there was no serious error in the LTB order and Member Johnson’s determination. Member Cho noted that the tenant had testified that they were instructed to use parking spot 69 when the tenancy began. Member Cho agreed that neither party could unilaterally change the terms of the agreement and that Member Johnson was correct in finding that the landlord was not entitled under section 123 of the RTA to raise the rent by charging the tenant $40 a month to continue using parking spot 69. Finally, Member Cho determined that the landlord could not reduce the parking and seek an increase in rent.

Standard of Review

[14] An appeal to the Divisional Court may only be heard on a question of law: RTA, s. 210(1); White, at para. 7.

[15] The appeal of an administrative decision on a question of law is subject to review on a standard of correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 37; Housen v. Nikolaisen, 2002 SCC 33, para. 8; White, at para. 7.

Analysis

[16] The landlord asserts that the LTB erred in law in finding that exclusive use of parking spot 69 by the tenant is an implied term of the tenancy agreement that cannot be changed by the landlord because this implied term conflicts with the discretion the landlord asserts it has pursuant to section 14(b) of the lease to reallocate parking spots from time to time. In support of its position, the landlord relies on principles of interpretation applicable to commercial contracts.

[17] The landlord is focused on clause 14(b). Member Johnson considered the entire lease and interpreted the lease and the parking terms within it in accordance with the purpose and provisions of the RTA. As noted, the RTA is remedial legislation which removes leases from the ordinary contract law principles. The RTA specifies that a tenancy agreement includes an oral or implied agreement, which allows for an implied term with respect to parking. Further, the LTB is required to ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and in doing so may have regard to the pattern of activities relating to the residential complex or the rental unit.

[18] The LTB specifically considered the lease which did not assign a specific parking spot to the tenant, considered that the tenant was immediately assigned parking spot 69, and that the tenant used that spot without interruption or change for many years. The LTB also considered that the landlord wanted to reallocate parking spots to generate revenue. As noted, the LTB is specifically allowed to consider such evidence by section 202(1) of the RTA.

[19] The landlord submits that the LTB’s interpretation of section 14(b) renders it meaningless because it takes away the landlord’s ability to allot parking spaces from time to time. In my view, it does not do so. Clause 14(b) does not preclude an agreement between the landlord and the tenant to assign a specific spot to the tenant. Further, the LTB’s interpretation is not inconsistent with the ability of the landlord to allot spaces from time to time if required. For example, the landlord retains the right to allocate parking spots from time to time when work such as resurfacing of the parking area is done, or if work is done to the carport and tenants cannot park in some spaces that necessitates reallocating parking spots for the duration of the work. The spots assigned to tenants would be returned to them when the spot becomes available again.

[20] In essence the landlord seeks to have its interpretation of the lease govern. This does not constitute an error of law. The LTB did not make an error of law.

Disposition

[21] The appeal is dismissed.

[22] If the parties cannot resolve the issue of costs, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages, together with excerpts of any legal authorities and any relevant offers to settle. The respondent’s submissions are to be served by no later than March 26, 2025; the appellant’s by no later than April 9, 2025.

[23] All submissions are to be filed with the court and uploaded to Case Center, with a copy to St.Catharines.SCJJA@ontario.ca by end of day April 9, 2025. If no submissions or written consent to a reasonable extension are received by the court by April 9, 2025, the matter of costs will be deemed to have been settled.

Released: March 12, 2025