Reasons for Decision

Court File No.: CV-24-891-00
Ontario Superior Court of Justice

Between:
Parvaneh Ansari Ardabili, Plaintiff
and
Norman J. Zak and Adina Zak, Defendants

Heard: October 23 and December 2, 2024
Released: January 10, 2025
Amended: January 13, 2025

Appearances:
Calvin Zhang, for the Plaintiff
Self-represented, the Defendants

Justice C.F. de Sa

Overview

[1] This Action relates to a residential lease referred to below. As the amount of rent at issue is greater than $35,000 (the monetary limit of the Landlord and Tenant Board (“LTB”)), the Action has been commenced in the Superior Court pursuant to s. 207 of the Residential Tenancies Act.

[2] The Plaintiff has brought a motion for Summary Judgment against the Defendants in the amount of $62,025 as rents owed or alternatively for $40,250 in accordance with the original lease. The Plaintiff is also seeking unpaid utilities in the amount of $5,691 and $9,356.40 for damages to the rental unit.

[3] This matter originally came before me on October 23, 2024. I adjourned the matter to December to give the Defendants the opportunity to file a response. The Defendants have filed the original materials that were filed on the LTB hearing.

Summary of Facts

[4] The Plaintiff, Parvaneh Ansari Ardabili (“Ardabili”), is the owner and Landlord of the house located at 25 Fanning Mills Circle, Vaughan, Ontario L6A 4Y9 (the “Leased Premises”).

[5] The Defendants, Norman Zak (“Norman”) and Adina Zak (“Adina”), are individuals residing in the City of Vaughan in the Province of Ontario. Norman and Adina are husband and wife. Norman and Adina are the tenants of the Leased Premises.

[6] The Defendants moved into the Leased Premises on November 23, 2021. In accordance with the Lease, Norman and Adina were required to pay rent in the amount of $4,225 per month during the term of the Lease commencing on November 23, 2021.

[7] On August 18, 2022, Ardabili served on Norman and Adina an N1 Form to increase the rent to $5,225 per month. On October 14, 2023, Ardabili again served on Norman and Adina an N1 Form to increase the rent to $6,225 per month effective January 23, 2024.

[8] The Defendants defaulted in paying full rent on November 23, 2022, and have not paid any rent since November 23, 2023.

[9] The Plaintiff served an N4, Notice of Termination, and it was confirmed valid by LTB Interim Order dated July 27, 2023 at paragraph 5: “Therefore, I find that the N4 was validly served to the Tenants by email on February 25, 2023”. Furthermore, the Landlord and Tenant Board issued multiple Interim Orders mandating the Defendants to pay rent and the Defendants have defied all LTB Orders.

[10] In order to avoid duplicative parallel proceedings and given the limited jurisdiction of the LTB, on or about June 18, 2024, the Plaintiff withdrew the L1 and L2 Applications from the LTB.

[11] As of June 23, 2024, the Tenants have failed to comply with numerous LTB Orders, owing total outstanding rent arrears of $62,025 and $4,801.70 for utilities (with the increased rental amounts) or $40,250 plus utilities in accordance with the original Lease.

[12] The Plaintiff has brought a motion for summary judgment seeking payment for the outstanding amounts.

Analysis

General Principles

[13] The court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: Rules of Civil Procedure, R.S.O. 1990, c.C.43, Rule 20.04(2); Hryniak v. Mauldin, 2014 SCC 7.

[14] There will be no genuine issue requiring a trial when the Judge is able to reach a fair and just determination of the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, supra.

[15] Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences: Hryniak v. Mauldin, supra, at para. 44.

Res Judicata / Jurisdiction

[16] The Defendants plead that this Court has no jurisdiction to hear and determine the matter. The Defendants plead that the relationship between the parties was for a residential tenancy and therefore pursuant to s. 168(1) of the Residential Tenancies Act, the LTB has exclusive jurisdiction to deal with the matter.

[17] The Defendants also maintain that there are outstanding LTB Applications, and the Plaintiff’s action amounts to a “collateral attack” on those Applications.

[18] I disagree that the Plaintiff’s action amounts to a collateral attack on the LTB Applications, or that this court lacks jurisdiction to deal with the matter.

[19] In order to avoid duplicative parallel proceedings and given the limited jurisdiction of the LTB, on or about June 18, 2024, the Plaintiff withdrew the L1 and L2 Applications from the LTB. There are no outstanding applications before the LTB. Accordingly, I am satisfied that this Court has jurisdiction to deal with the matter.

[20] I am also satisfied that res judicata does not apply because there is no substantive decision (that is final or binding) on the same issues raised in this Action: Ji Zhou et al. v. Azadeh Hashem Nia et al., 2023 ONSC 5466, at para 26.

Rent Increase

[21] The Plaintiff takes the position that by operation of s. 136 of the Residential Tenancies Act, any rent increases charged more than one year ago are deemed lawful as the Defendants failed to file an application to challenge them within the prescribed time period: Residential Tenancies Act, 2006, S.O. 2006, c. 17, Section 136; Williams v. 1175326 Ontario Ltd., 2016 ONSC 7781, at paras. 6-7.

[22] The Plaintiff also takes the position that this Court should not entertain any of the Defendants’ arguments with respect to the rent increases that are not pleaded in the Statement of Defence: Bank of Montreal v. 1480863 Ontario Inc., 2007 CarswellOnt 2419 (Ont. S.C.J.), at para 40.

[23] Section 120 of the Residential Tenancies Act provides:

Guideline increase
120 (1) No landlord may increase the rent charged to a tenant, or to an assignee under section 95, during the term of their tenancy by more than the guideline, except in accordance with section 126 or 127 or an agreement under section 121 or 123. 2006, c. 17, s. 120 (1).

[24] The Government of Ontario has set the annual rent increase guideline for 2024 at 2.5%. The guideline is the maximum percentage that a landlord may increase the rent.

[25] The Defendants/Tenants raised the issue of validity of rent increase in the LTB proceedings. Regardless, a failure to object to an increase does not permit the Plaintiff to charge increases exceeding the maximum.

[26] In the circumstances, the Plaintiff may recover outstanding rent owed at the original rate of $4,225 per month.

Amounts to be Paid

[27] On the basis of the materials filed, including the materials filed by the Defendants in response, I am satisfied that there is still $40,250 in unpaid rent owing to the Plaintiff.

[28] The Plaintiff is granted $40,250 for unpaid rent up to September 6, 2024. On the basis of the materials filed, the Plaintiff is also granted unpaid utilities in the amount of $5,691 and $4,500 for damages to the rental unit.

[29] The Plaintiff is granted a total amount of $50,441.00.

[30] Costs are also awarded to the Plaintiff in the amount of $3,500 inclusive of HST.

Justice C.F. de Sa
Released: January 10, 2025.
Amended: January 13, 2025.