How can an amenity be removed or reduced legally? How can rent be increased due to an additional amenity?

 

Existing tenancy agreements cannot be changed unilaterally. This is well established in law, and we covered it in other scenarios previously, e.g. if the landlord moves into the same building and starts sharing bathroom or kitchen (this wouldn't change applicability of the RTA).

Mutual Agreements

(RTA s. 123 and RTA s. 125)

However, new agreements can be entered into later if such agreements are not coerced (RTA section 124) and if there is consideration (something of value) in exchange. This includes agreements under RTA section 123 to increase rent in exchange for additional amenities / facilities / services and agreements to reduce rent under RTA section 125 in exchange for removal or reduction of an existing amenity / facility / service.

Amounts

(O. Reg. 516/06 s. 16)

Rent is tightly regulated for ongoing tenancies in Ontario (under "vacancy de-control" regime). Therefore, the maximum rent increase or the minimum rent reduction would be prescribed in O. Reg. 516/06 section 16 and, in most cases, would be "the actual cost to the LANDLORD of the service, facility, privilege, accommodation or thing, other than floor space, that is the subject of the agreement or, where the actual cost to the landlord cannot be established or where there is no cost to the landlord, a reasonable amount based on the value of the service, facility, privilege, accommodation or thing" (O. Reg. 516/06 subsection 16(2)).

If the agreement is about an increase or reduction in floor space, the maximum rent increase or the minimum rent reduction "shall be proportionate to the change in floor space" (O. Reg. 516/06 subsection 16(3)). However, if the amount determined this way "would be unreasonable given the nature and quality of the floor space added or taken away, the maximum increase in rent or minimum decrease in rent shall be a reasonable amount based on the nature and quality of the floor space and the amount of the change in the floor space" (O. Reg. 516/06 subsection 16(4)).

Lack of Consent

(RTA s. 130, O. Reg. 516/06 s. 39)

So what happens if the tenant doesn't agree to the removal or reduction of an amenity, but the landlord goes ahead and removes it or reduces it anyway?

Tenants have recourse via a T3 application at the LTB under RTA section 130 (as long as the tenant files within 1 year after the discontinuance or reduction of the service, RTA ss. 130(5)), but the amounts would be calculated somewhat differently (under O. Reg. 516/06 section 39), and the LTB could very well order the landlord to pay a greater amount to the tenant than what would have been prescribed had the parties mutually agreed to a rent reduction in exchange for removal or reduction of an amenity.

What can the Board order based on a T3 application?

(RTA s. 130)

RTA subsection 130(3):

"Order re lawful rent

(3) The Board shall make findings in accordance with the prescribed rules and may order,

(a) that the rent charged be reduced by a specified amount;

(b) that there be a rebate to the tenant of any rent found to have been unlawfully collected by the landlord;

(c) that the rent charged be reduced by a specified amount for a specified period if there has been a temporary reduction in a service. 2006, c. 17, s. 130 (3).

Same

(4) An order under this section reducing rent takes effect on the day that the discontinuance or reduction first occurred. 2006, c. 17, s. 130 (4)."

Amounts / How would the rent reduction be determined by the Board?

(O. Reg. 516/06 s. 39)

1.

If the discontinuance was reasonable in the circumstances, it would be a reasonable charge based on the cost of the facility to the LANDLORD or, if the cost cannot be determined or if there is no cost, the value of the facility, including the cost to the TENANT of replacing the discontinued service or facility (O. Reg. 516/06 subsection 39(2)).

2.

But "if the discontinuance was not reasonable in the circumstances, the rent shall be reduced by an amount that takes into account the following matters:

1. The value of the service or facility, including the cost to the TENANT or former tenant of replacing the discontinued service or facility.

2. The effect of the discontinuance on the tenant or former tenant. O. Reg. 516/06, s. 39 (3).

(4) The amount of the rent reduction determined under subsection (3) shall not be less that the amount of the reduction that would have been required under subsection (2) had the discontinuance been reasonable. O. Reg. 516/06, s. 39 (4).

[...]

(6) If a service or facility is reduced, the amount of the reduction of rent shall be a reasonable proportion, based on the degree of the reduction of the service or facility, of the amount of the reduction in rent that would have been determined under subsections (2) to (5) had the service or facility been discontinued. O. Reg. 516/06, s. 39 (6).

(7) If the discontinuance or reduction is temporary and its duration is reasonable, taking into account the effect on the tenant or former tenant, there shall be no reduction of rent. O. Reg. 516/06, s. 39 (7)."

Note: Rent reductions due to utilities are different and are covered under RTA section 128 and O. Reg. 516/06 sections 35, 36 and 37.

Do tenants have other recourse?

(RTA s. 22)

Sometimes it may be possible to argue that a T2 application under RTA section 22 (substantial interference with reasonable enjoyment of the rental unit) can apply, as well as a T3 application under RTA section 130 (reduction in services). It would depend on the facts of the case. Scroll down to the end of the post for a few examples. Always get legal advice for these questions because failure to use the correct application forms may result in running out of time (limitation period issues) and/or res judicata issues.

What if the amenity was never spelled out in the lease?

This is not determinative. Agreements and terms of agreement can be written, verbal or implied (see RTA section 2 - "Interpretation"). If something was provided from the outset as part of the original deal, even if it was not written anywhere, it would normally be an implied term of the agreement and cannot normally be removed or reduced without the tenant's consent and adequate reduction in rent.

It is also important to remember:

• the estoppel by conduct principle ("when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so" (Moorgate Mercantile Company Ltd v Twitchings), even though it is important to remember, as stated in 1086891 Ontario Inc. v. Barber, 2007 CanLII 18734 (ON SCDC), at para 19, <https://canlii.ca/t/1rldv#par19>, "Estoppel cannot override statute (see Harzuz Holdings Ltd. v. Peel (Regional Municipality), [2006] O.J. No. 1830)"), and
• the doctrine of laches (Black's Law Dictionary: "equity aids the vigilant and not those who slumber on their rights").

A few examples:

1)

TST-55961-14-RV (Re), 2015 CanLII 69364 (ON LTB), <https://canlii.ca/t/glvb6>

"27. After having heard the evidence of the Tenant, his witnesses and the Landlord, I concur with the findings and analysis of the original hearing member. As such, I find that the Tenant was entitled to park on the premises. I say this because the testimony of the Tenant and his witnesses was consistent with the Tenant’s pattern of conduct. The Tenant has been parking on the premises for over 6 years, 4 years under the previous landlord and then 2 years under the current Landlord. The fact that the copies of the lease presented at the hearing do not set out the Tenant’s right to park is not determinative.

28. The preponderance of evidence leads me to believe that the Tenant had negotiated with the previous landlord his right to park on the boulevard. The current Landlord inherited the terms of the lease from the previous landlord and cannot unilaterally change those terms.

29. The Landlord focused on the fact that the Tenant did not have a designated spot, the evidence before me established that the Tenant was paying for the right to park on the premises, not the right to park on a “designated spot” on the premises.

30. Regarding the limitation period, I am in agreement with the interim order TST-55961-14 –IN issued on October 17, 2014. The triggering factual event was not when the Tenant’s spot was moved in August, 2013, but rather when the Landlord refused to provide him with a legal parking spot in November, 2013. Accordingly, the Board has jurisdiction to consider the Tenant’s application about discontinuance of a service or facility.

31. This application also alleges that the Landlord harassed the Tenant or otherwise breached s. 23 of the Residential Tenancies Act, 2006 (the 'Act'). The conduct the Tenant alleges constitutes harassment occurred more than one year before the application was filed, as such the Board is statute barred from considering this part of the application."

2)

CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB), <https://canlii.ca/t/hv7m9>

"10. An unsigned form of lease was presented by the male Landlord that makes no reference to designated parking spaces. The male Landlord did not dispute how the Tenant portrayed the way parking was arranged among tenants before he arrived on the scene as an occupant, namely, that the Tenant had two spaces and her guests also could park behind her car.

Analysis

11. The issue for me to consider here is whether the Landlords have substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant's household by the male Landlord demanding the Tenant and her guests obtain his permission for them to park in the two unassigned spaces she has had the use of for about 4 years before September 2016 and arranging to have the Tenant’s daughter’s car and the Tenant’s guest’s car ticketed.

12. The lot survey submitted by the Landlord indicates that there is plenty of space to park along the eastern side of the Landlords’ house without encroaching on the right-of-way that is a dead end.

13. Indeed, the photograph of a car parked beside the Landlords’ house shows it is not on the right-of-way and yet that was where the Tenant’s daughter apparently was parked when she was boxed in for 3 hours by the male Landlord in late January 2018. The male Landlord called the City parking enforcement division to have the Tenant’s daughter’s car ticketed but because she was present the enforcement officer refused to do so.

14. The lease is silent on the issue of parking by the Tenant’s guests or occupants. However, examination of the parties’ conduct suggests that there was a long-standing and until fairly recently uncontested practice of the Tenant’s guests parking on the property.

15. In Feather v. Bradford (Town),[1] the Ontario Court of Appeal succinctly set out the general principles of estoppel by conduct as follows:

[56] The general principle of estoppel by representation is aptly stated in Jill E. Martin, Hanbury and Martin: Modern Equity 16th ed. (London: Sweet & Maxwell, 2001), at p. 891:

[A] person who makes an unambiguous representation, by words, or by conduct, or by silence, of an existing fact, and causes another party to act to his determent in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. [Emphasis added.]

16. Through their conduct the Landlords permitted the Tenant the right to unassigned parking spaces for her car and that of her guests. Having relied upon that representation, the male Landlord is estopped from claiming authority to revoke this right four years later.

17. Consequently, I also find for at least the past year the Landlords have substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenant and the Tenant’s son while he was an occupant of the rental unit by demanding adherence to arbitrary rules with respect to parking for the Tenant and her guests, including her family members, contrary to a long established practice whereby the Tenant’ has two parking spots to use for herself and her guests and guests were able to park behind her car.

18. I also find the Tenant and her son suffered upset caused by, and fear of, the male Landlord to the point where they had to engage in soothing communications to mollify his dictatorial behaviour regarding parking.

Remedy

19. The Tenant asks pursuant to paragraph 31(1)(c) of the Residential Tenancies Act, 2006 (“RTA”) for a rebate equal to $2,000 and under subsection 41(6) of the RTA for an order the Landlords refrain from being in breach of this obligation.

20. This was an ongoing breach of an obligation with respect to the tenancy the remedy for which cannot go back more than one year from the date the application was filed, which was on March 28, 2018: see Toronto Community Housing Corporation v Allan Vlahovich.[2] Consequently, I will award a rent abatement of 10% for the period from April 27, 2017 to May 29, 2018 ($1,343 X0.10 X 13) = $1,745.90 and $80.00 for the cost of the two parking tickets, totalling $1,825.90. I find a 10% rebate on rent is appropriate because even though this was an irritating and upsetting pattern of misuse of authority it is mitigated somewhat by the fact that the Tenant was able to park her car on the premises and there were occasions when a guest could manage to park there.

21. The Tenant has had hip surgery and asks that she be allowed to continue to park in the front just as she had done before her surgery in order to have easier access to the entrance. I will grant the Tenant’s requested remedy.

Harassment and Substantial Interference with Reasonable Enjoyment– Shed

Tenant’s Evidence

22. The Tenant said the shed was installed in or around 2014. She said since it was installed the female Landlord let her store her bicycle valued at $800 in the shed. She said in or about March 27, 2018 she began to receive emails from the male Landlord to remove her bike from the shed. She believed it was because the male Landlord had to move her bike to get the lawnmower out of the shed.

23. The Tenant said she misplaced her key to the padlock for the shed. She said the male Landlord agreed to her replacing the lock, which she did and gave him a key. However, in April 2018 the male Landlord substituted the old lock for the new one thereby preventing the Tenant from storing her bike in the shed unless she asked him for access to it by email. Then, about two weeks ago the male Landlord removed the bike from the shed. The Tenant said she now keeps it on the front porch but is confident that is unacceptable to the male Landlord.

Landlord’s Evidence

24. The male Landlord said he gave the Tenant a key to the shed to allow her to store garden equipment because some of her garden tools had been stolen. He said the shed was never intended to store a bike: rather it was intended to keep garden equipment and the Landlords’ equipment and contractor equipment.

25. The male Landlord said unbeknownst to the Landlords, the Tenant stored her bike there. When he found this out he told the Tenant what the shed was intended to be used for. He said it was satisfactory for the Tenant to store her bike in the vestibule or lock it outside. The Tenant said the vestibule was too small to accommodate a bike and allow a person to pass and she cannot carry it up 20 stairs to her unit. She also told the male Landlord leaving it outside would ruin it and likely result in it being stolen.

Analysis

26. Similar to the situation regarding the parking, the removal of the Tenant’s bike from the shed is an ongoing breach of an obligation with respect to the tenancy dating back to April 2018. By arbitrarily denying the Tenant the use of the shed where she has stored her bike since 2014, the Landlords have substantially interfered with the Tenant’s enjoyment of the rental unit which is an ongoing breach of section 22 of the RTA.

Remedy

27. For the breach of the Landlords’ obligation regarding the storage shed, the Tenant is entitled to a rent abatement of 0.25% for one month, totalling $40.30.

Harassment and Substantial Interference with Reasonable Enjoyment - Cabana

28. The Tenant said she erected a sunroom in 2017 at the back of the residential complex for the use of her friends and her. The male Landlord told her she had to move it when it blew over so she gave it to a friend on March 30, 2017.

29. The male Landlord said the cabana was of no concern other than to be safe it needed to be fastened to the ground because it blew over where it had been placed.

30. As this claim arose more than one year prior to the filing of the T2/T3 application, it is barred by virtue of subsection 29(2) of the RTA.

It is ordered that:

1. The Tenant has the right to two unassigned parking spaces for her car and that of her guest and her guests also are allowed to park behind her car throughout the tenancy.

2. The Tenant has the right to store her bicycle in the shed throughout the tenancy.

3. The Landlords shall pay the Tenant a rebate as calculated in paragraph 20 above and costs as shown in paragraph 27 above, totalling $1,866.20.

4. The Landlords shall pay the Tenant the cost of the application filing fee of $50.00. [...]"

3)

Feather v. Bradford (Town), 2010 ONCA 440 (CanLII), <https://canlii.ca/t/2b5mq>

"[56] The general principle of estoppel by representation is aptly stated in Jill E. Martin, Hanbury and Martin: Modern Equity 16th ed. (London: Sweet & Maxwell, 2001), at p. 891:

[A] person who makes an unambiguous representation, by words, or by conduct, or by silence, of an existing fact, and causes another party to act to his determent in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. [Emphasis added.]

[57] Where a party seeks to invoke estoppel on the basis of silence, they must show that the party to be estopped was under a duty to make a statement, in the sense that in all of the circumstances their failure to communicate the actual state of affairs to the other party is dishonest: see Fung Kai Sun v. Chan Fui Hing, [1951] A.C. 489 (P.C.), at p. 501."

Additional examples of unreasonable interference and removal / reduction of amenities:

Parking (limiting the number of parking spots later):

CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB), <https://canlii.ca/t/hv7m9>

Laundry (new rules for washing / drying clothes, restricting time of access to laundry):

CET-63203-16 (Re), 2017 CanLII 28729 (ON LTB), <https://canlii.ca/t/h3r3w>

Air conditioning (removal):

TET-73313-16 (Re), 2017 CanLII 48840 (ON LTB), <https://canlii.ca/t/h53bc>

WiFi / internet access (removal):

SOT-76586-16 (Re), 2017 CanLII 48961 (ON LTB), <https://canlii.ca/t/h532d>

Thermostat (removal):

TST-47711-13 (Re), 2015 CanLII 51510 (ON LTB), <https://canlii.ca/t/gkqgg>

Electricity (demands for the tenant to cover hydro expenses):

TET-69273-16-IN (Re), 2016 CanLII 38754 (ON LTB), <https://canlii.ca/t/gs8j9>

_______________________

On replacement of an appliance with a smaller appliance:

CEL-72209-17 (Re), 2018 CanLII 42861 (ON LTB), <https://canlii.ca/t/hs1b3>

"32.   The Landlords replaced the dishwasher and fridge at the rental unit on December 7, 2017. The stove was replaced on December 14, 2017 at the rental unit.  According to the Tenants, these new appliances are inadequate for a family of six.  They are smaller than the original appliances, the dishwasher cycle takes longer, and the stove is not self-cleaning.   These issues with the new appliances were the subject of the Tenants’ email sent to the Landlords on December 14, 2017.  The Tenants believe that the Landlords refusal to address these issues has led to a substantial interference with their reasonable enjoyment of the premises. 

33.   The Tenants’ Legal Representative argued that the Tenants are entitled to compensation as the Tenants’ had contracted for specific appliances that were subsequently replaced by the Landlords with diminished ones.   While this argument may be correct, it must be made pursuant to section 130 of the Act.  This T2 application filed pursuant to section 29 of the Act with remedies available pursuant to section 31 of the Act is not the relevant application.

34.   Section 130 of the Act specifically contemplates that a landlord may unilaterally reduce or discontinue a service or facility that was originally provided and formed part of the tenancy agreement. If a landlord removes a service or facility the tenant may file the applicable application with the Board and request a rent reduction. That application is a T3 application.

 

35.   Subsection 2(1) of the Act states:

“services and facilities” includes,

            (a)      furniture, appliances and furnishings,

36.   I agree with and adopt the following reasoning as set out in order CET-68554-17-RV:

a)   Section 130 of the Act states:

130 (1) A tenant of a rental unit may apply to the Board for an order for a reduction of the rent charged for the rental unit due to a reduction or discontinuance in services or facilities provided in respect of the rental unit or the residential complex. 

Same, former tenant

(2)  A former tenant of a rental unit may apply under this section as a tenant of the rental unit if the person was affected by the discontinuance or reduction of the services or facilities while the person was a tenant of the rental unit. 

Order re lawful rent

(3)  The Board shall make findings in accordance with the prescribed rules and may order,

            (a)         that the rent charged be reduced by a specified amount;

            (b)           that there be a rebate to the tenant of any rent found to have been unlawfully collected by the landlord;

            (c)            that the rent charged be reduced by a specified amount for a specified period if there has been a temporary reduction in a service. 

Same

(4)  An order under this section reducing rent takes effect on the day that the discontinuance or reduction first occurred. 

Same, time limitation

(5)  No application may be made under this section more than one year after a reduction or discontinuance in a service or facility. 

 

b)   The amount of the rent reduction that a tenant may be entitled to is determined in accordance with the prescribed rules that are set out in section 39 of Ontario Regulation 516/06 (the ‘Regulation’) made under the Act.

c)   The Regulation sets out different rules for determining an appropriate rent reduction depending on whether a landlord’s removal or discontinuance of a service was reasonable or unreasonable.

d)   Therefore, whether a landlord’s removal of a service was reasonable or unreasonable, a tenant’s remedy is a rent reduction which is determined in accordance with the prescribed rules.

e)   The Tenants did not file a T3 application. They filed a T2 application claiming substantial interference. That claim is governed by sections 29 and 31 of the Act which permit different remedies to be requested and ordered.

f)     In this case, the Tenants were requesting that the free visitor’s parking be re-instated. That is not an available remedy under section 130 of the Act.

g)   I acknowledge that there may be circumstances where a reduction or discontinuance in a service or facility could potentially be characterized as a substantial interference with a tenant’s reasonable enjoyment of the rental unit or residential complex. However, in my view, it is not appropriate to permit that type of claim to be filed under a T2 application so that a tenant may circumvent section 130 of the Act and request a different remedy than what is provided for under the Act or to get around the one year limitation period set out in subsection 130(5) of the Act.

h)   Substantial interference with reasonable enjoyment is very broad and general claim and could potentially encompass any number of issues that could arise during a tenancy. However, when an issue raised in an application falls under a more specific and applicable section of the Act, the issue should be determined under that specific and applicable section.

i)     This is similar to the situation that arises when a tenant does not pay the rent that is due. There is an applicable process, remedy and application for rent arrears. Although a tenant’s failure to pay the rent could potentially be characterized or claimed as a substantial interference with a landlord’s reasonable enjoyment of the residential complex, the Board does not determine rent arrears issues under that type of claim. It requires a landlord to follow the applicable process and sections in the Act regarding rent arrears.

37.   Consequently, to make a finding based on an application under section 29 of the Act instead of a finding based under section 130 disregards the statutory framework as the Act contemplates a change in a service or facility that is provided as part of the tenancy and the Act provides rules and remedies for such a change. "

__________________________

A few rulings on interplay of T2 and T3 applications:

1)

CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB), <https://canlii.ca/t/hv7m9> (both a T3 and a T2 applied to removal of parking in that case, see excerpts above)

"14.   The lease is silent on the issue of parking by the Tenant’s guests or occupants. However, examination of the parties’ conduct suggests that there was a long-standing and until fairly recently uncontested practice of the Tenant’s guests parking on the property.

15.    In Feather v. Bradford (Town),^[1] the Ontario Court of Appeal succinctly set out the general principles of estoppel by conduct as follows:

[56] The general principle of estoppel by representation is aptly stated in Jill E. Martin, Hanbury and Martin: Modern Equity 16th ed. (London: Sweet & Maxwell, 2001), at p. 891:

[A] person who makes an unambiguous representation, by words, or by conduct, or by silence, of an existing fact, and causes another party to act to his determent in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. [Emphasis added.]

16.    Through their conduct the Landlords permitted the Tenant the right to unassigned parking spaces for her car and that of her guests. Having relied upon that representation, the male Landlord is estopped from claiming authority to revoke this right four years later.

17.   Consequently, I also find for at least the past year the Landlords have substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenant and the Tenant’s son while he was an occupant of the rental unit by demanding adherence to arbitrary rules with respect to parking for the Tenant and her guests, including her family members, contrary to a long established practice whereby the Tenant’ has two parking spots to use for herself and her guests and guests were able to park behind her car.

18.   I also find the Tenant and her son suffered upset caused by, and fear of, the male Landlord to the point where they had to engage in soothing communications to mollify his dictatorial behaviour regarding parking."

2)

TST-79596-16-IN (Re), 2016 CanLII 88770 (ON LTB), <https://canlii.ca/t/gw52r>

"24. I find that the limitation period in subsection 130(5) should be treated differently from the limitation period in subsection 29(2). First, Guideline 6 only deals with the limitation period in subsection 29(2). However, it does say that when a breach is a single event, the limitation period begins on the day the event happened. In this case, the root of the T3 application is single event – the one-time removal of the on-site superintendent. Second, the wording of the limitation period in subsection 130(5) is clear that an application cannot be filed more than one year after the discontinuance of a service. This section seems to address, and render irrelevant, the notion that the unavailability of the discontinued service is ongoing. Therefore, I find that the limitation period in subsection 130(5) clearly bars the addition of the Potential Parties because the Tenant asked to have them added after April 21, 2016 when the limitation period expired."

_____

"T2 Application

16. At the October 20^th Prehearing the Tenant testified that as a result of the removal of the on-site superintendent, the Tenant has experienced and continues to experience multiple disturbances, including difficulties receiving rent receipts, having his rent cheques cashed on unpredictable days and inconsistent garbage collection.

 

17. The Board’s Guideline 6 pertaining to tenants’ rights provides guidance with respect to the application of the limitation period in subsection 29(2) of the Act. The guideline states that when a Landlord’s breach of the Act is a single event, the limitation period begins on the day the event happened. However, where the breach is not a single event but is ongoing or recurring as may be the case with some instances of interference with reasonable enjoyment, then the breach occurs over a period of time and the limitation period runs from the date that behaviour causing the interference with reasonable enjoyment ceases.

 

18. In the present case, the Tenant provided evidence that the interference with his reasonable enjoyment is ongoing and it has not ceased. Therefore, I find that the one-year limitation period in respect of this application has not yet begun to run, let alone expired. Accordingly, I find that the Tenant’s request to amend the T2 Application to add the Potential Parties is not dismissed for being out of time.

 

19. Accordingly the next step in my analysis is to apply Rule 16 of the Board’s Rules of Practice. Rule 16.4 sets out a non-exhaustive list of factors that the Board must consider when determining whether to grant amendment to an application.

 

20. The factors that support granting the amendments are:

 

•         The amendment was requested in good faith and it necessary to ensure that those who were affected by the removal of the on-site superintendent have the opportunity to have their claims heard. Based on the Tenant’s honest and candid testimony at the prehearings, I am satisfied that the Tenant’s request to add the Potential Parties was made in the honest, but mistaken belief that the amendment would be automatic as long as the merits hearing had not begun.

•         Any prejudice the Landlord would suffer by adding the Potential Parties is minimized by the fact that the Tenant is not seeking to change any of the issues in the T2 Application, only to add parties. Therefore, the proposed amendments should not delay, extend or render more complex the Landlord’s preparation for the merits hearing.

•         If the proposed amendments are granted they should not delay the start of the proceedings. Preliminary issues were addressed at the prehearings, which should have the effect of streamlining the hearing. I also mentioned to the Tenant at the prehearings that if the proposed amendments were granted, he would also be expected to organize his evidence so that common issues are presented in a way that minimizes repetition of evidence. At the same time, some delay in the length of the hearing would be inevitable if the Potential Parties were added because each applicant would have to establish their entitlement to a remedy.

 

21. The factors that support denying the amendments are:

 

•         I am not convinced that the amendment was requested as soon as the need for it was known. The Tenant testified that he sought legal advice prior to filing the applications and he was aware of a one-year limitation period at issue. Nevertheless, the Tenant filed the application on the second-last day of that limitation period and only then did he reach out to other tenants in the residential complex and canvas whether they were interested in joining the applications.

•         If the amendments are granted the Landlord will also suffer the obvious prejudice of having to face greater potential liability because there will be more claimants.

 

22. However, I find that the most important and practical factor that must be considered falls under the category of “any other relevant factors”. As already determined, the limitation period for the T2 Application has not yet expired. Therefore, there is nothing in the legislation or the Rules that would stop the Potential Parties from filing their own application(s) if the amendments were denied. Section 183 of the Act requires the Board to adopt the most expeditious manner of determining the questions arising out of a proceeding while ensuring that those who are directly affected by the proceeding have the right to be heard. I find that adding the Potential Parties to the existing T2 Application, which has already gone through a CMH and two prehearings would be in-keeping with the Board’s obligations under section 183.

 

23. Accordingly, the proposed amendments to the T2 Application are granted and the Potential Parties are added as applicants to the application. Therefore, for the remainder of the order, the Tenant and the Potential Parties will be referred to as the “Tenants” in regards to the T2 Application only.

 

 

T3 Application

 

24. I find that the limitation period in subsection 130(5) should be treated differently from the limitation period in subsection 29(2). First, Guideline 6 only deals with the limitation period in subsection 29(2). However, it does say that when a breach is a single event, the limitation period begins on the day the event happened. In this case, the root of the T3 application is single event – the one-time removal of the on-site superintendent. Second, the wording of the limitation period in subsection 130(5) is clear that an application cannot be filed more than one year after the discontinuance of a service. This section seems to address, and render irrelevant, the notion that the unavailability of the discontinued service is ongoing. Therefore, I find that the limitation period in subsection 130(5) clearly bars the addition of the Potential Parties because the Tenant asked to have them added after April 21, 2016 when the limitation period expired.

 

25. At the August 10^th Prehearing, the Landlord’s legal representative argued that the Tenant’s proposed amendments to both the T2 and the T3 Applications should be denied and he cited subsection 21(1) of the Limitations Act, 2002 in support of his position. That provision provides:

 

If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to an existing claim.

 

26. The Landlord’s Legal representative also relied on the decision in Meady v. Greyhound Canada et al (2007, Canlii 16633 ON SC), which interprets the above provision in the Limitations Act, 2002.

 

27. In preparation for the October 20^th Prehearing, I issued interim order TST-73104-16-IN2 on August 16, 2016. In that order, I asked that the parties come to the next prehearing prepared to make submissions about whether the Limitations Act, 2002 applies to proceedings at the Board. Neither party made new arguments with respect to this issue at the October 20^th Prehearing and I am not aware of any court or Board decisions that have dealt with this issue before.

 

28. Based on language found in the Limitations Act, 2002 I am not satisfied that this legislation applies to proceedings at the Board. Subsection 2(1) of the Limitations Act, 2002, is the “application” section and it states: “This Act applies to claims pursued in court proceedings other than..” and is followed by a list of proceedings commenced under different pieces of legislation. However, the term “court proceedings” appears to exclude from that statute’s application proceedings before tribunals like the Board. In addition, the Act does not refer to the Limitations Act, 2002. Although I have found that the Limitations Act, 2002 does not apply to Board proceedings I essentially agree with the wording of subsection 21(1) as it applies to the Tenant’s attempt to add new parties after the limitation period in subsection 130(5) had expired.

 

29. As the decision in Meady v. Greyhound Canada interprets the application of subsection 2(1) of the Limitations Act, 2002 to a court proceeding, I do not find it applicable to the Board’s proceeding or the T3 Application before me. There are too many differences between Meady and the case before me, including significant differences in the length of the applicable limitation periods, the wording of the rules of procedure at the Superior Court of Justice versus the Board’s Rules and the role of costs at both forums (for compensating newly-added parties who have been added improperly). As the parallels between Meady and the case before me are too remote or hard to identify, I find that Meady is not useful for my analysis.

 

30. I see no reason to override the limitation period in subsection 130(5) of the Act. According to that provision, the limitation period in relation to the Tenant’s claim in the T3 Application expired on April 21, 2016. As the Tenant requested that additional tenants be added as applicants to the application after this date, those requests for amendments/additions of parties are out of time. Therefore, the amendments to the T3 Application are denied.

 

31. Pursuant to my discretion under section 198(2) of the Act. The applications are severed. The applications will still be heard together."

3)

CET-68554-17-RV (Re), 2017 CanLII 93918 (ON LTB), <https://canlii.ca/t/hq1vn>

"1.      The September 1, 2017 order dismissed the Tenants’ T2 application since the Member determined that the loss of free visitor’s parking did not amount to a substantial interference with the Tenants’ reasonable enjoyment of the rental unit or residential complex.

 

2.      The Tenants allege a number of errors in the order or proceedings and disagree with the Member’s dismissal of the T2 application.

 

3.      On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

4.      There was no dispute that there used to be free visitor’s parking at the building. The Landlord converted that free visitor’s parking to paid visitor’s parking on August 9, 2016. This was a unilateral change on the Landlord’s part. The Tenants did not agree to this change. As a result of the change, there was a reduction or discontinuance in a service or facility at the building.

 

5.      The Member determined that the Landlord’s obligation to ensure that there is no substantial interference with the reasonable enjoyment of the rental unit or residential complex does not extend to the Tenants’ guests.

 

6.      It would primarily be the Tenants’ guests that would be inconvenienced or out of pocket for the cost of the visitor’s parking at the building.

 

7.      Subsection 29(1) of the Residential Tenancies Act, 2006 (the 'Act') states that a tenant may apply to the Board if the landlord or their agent has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household. (emphasis added)

 

8.      Given the wording in subsection 29(1) of the Act, the Member’s determination that the Landlord’s obligation does not extend to visitors was not unreasonable.

 

9.      Furthermore, the T2 application that the Tenants filed was not the relevant application to address the issue in the application.

 

10.   Section 130 of the Act specifically contemplates that a landlord may unilaterally reduce or discontinue a service or facility that was originally provided and formed part of the tenancy agreement. If a landlord removes a service or facility the tenant may file the applicable application with the Board and request a rent reduction. That application is a T3 application.

 

11.   Section 2 of the Act states in part:

“services and facilities” includes,

            (b)           parking and related facilities,

 

12.   Section 130 of the Act states:

130 (1) A tenant of a rental unit may apply to the Board for an order for a reduction of the rent charged for the rental unit due to a reduction or discontinuance in services or facilities provided in respect of the rental unit or the residential complex. 

Same, former tenant

(2)  A former tenant of a rental unit may apply under this section as a tenant of the rental unit if the person was affected by the discontinuance or reduction of the services or facilities while the person was a tenant of the rental unit. 

Order re lawful rent

(3)  The Board shall make findings in accordance with the prescribed rules and may order,

            (a)           that the rent charged be reduced by a specified amount;

            (b)           that there be a rebate to the tenant of any rent found to have been unlawfully collected by the landlord;

            (c)           that the rent charged be reduced by a specified amount for a specified period if there has been a temporary reduction in a service. 

Same

(4)  An order under this section reducing rent takes effect on the day that the discontinuance or reduction first occurred. 

Same, time limitation

(5)  No application may be made under this section more than one year after a reduction or discontinuance in a service or facility. 

 

13.   The amount of the rent reduction that a tenant may be entitled to is determined in accordance with the prescribed rules that are set out in section 39 of Ontario Regulation 516/06 (the ‘Regulation’) made under the Act.

 

14.   The Regulation sets out different rules for determining an appropriate rent reduction depending on whether a landlord’s removal or discontinuance of a service was reasonable or unreasonable.

 

15.   Therefore, whether a landlord’s removal of a service was reasonable or unreasonable, a tenant’s remedy is a rent reduction which is determined in accordance with the prescribed rules.

 

16.   The Tenants did not file a T3 application. They filed a T2 application claiming substantial interference. That claim is governed by sections 29 and 31 of the Act which permit different remedies to be requested and ordered.

 

17.   In this case, the Tenants were requesting that the free visitor’s parking be re-instated. That is not an available remedy under section 130 of the Act.

 

18.   I acknowledge that there may be circumstances where a reduction or discontinuance in a service or facility could potentially be characterized as a substantial interference with a tenant’s reasonable enjoyment of the rental unit or residential complex. However, in my view, it is not appropriate to permit that type of claim to be filed under a T2 application so that a tenant may circumvent section 130 of the Act and request a different remedy than what is provided for under the Act or to get around the one year limitation period set out in subsection 130(5) of the Act.

 

19.   Substantial interference with reasonable enjoyment is very broad and general claim and could potentially encompass any number of issues that could arise during a tenancy. However, when an issue raised in an application falls under a more specific and applicable section of the Act, the issue should be determined under that specific and applicable section.

 

20.   This is similar to the situation that arises when a tenant does not pay the rent that is due. There is an applicable process, remedy and application for rent arrears. Although a tenant’s failure to pay the rent could potentially be characterized or claimed as a substantial interference with a landlord’s reasonable enjoyment of the residential complex, the Board does not determine rent arrears issues under that type of claim. It requires a landlord to follow the applicable process and sections in the Act regarding rent arrears.

 

21.   The Tenants state that they orally requested reasons at the hearing and the order fails to provide those reasons. This does not amount to a serious error that would change the outcome in the order.

 

22.   The Tenants also state that the hearing was only partially, but not fully recorded. Again, this does not amount to a serious error that would change the outcome in the order.

 

23.   Although the order is quite sparse with respect to reasons and analysis, the outcome in the order (dismissal of the application) is reasonable given my determinations above and will not be interfered with on review.

 

24.   The review request is denied in accordance with Rule 29.11(c) of the Board’s Rules of Practice because the grounds for considering a review are not satisfied."

4)

CET-77573-18 (Re), 2018 CanLII 141486 (ON LTB), <https://canlii.ca/t/j0f60>

"Kitchen exhaust and stove, kitchen island

16.   The Tenant testified that the Landlord provided him with a stove when the tenancy commenced which was removed as of mid-October 2017.  He said the Landlord gave him two hot places as of November 2017 but both did not work.  He claims he had to eat out from mid-October 2017 to January 12, 2018 when he purchased a used stove.

17.   The Landlord testified that she never provided the Tenant with a stove.  She said she gave him a microwave and also gave him two hot places and a convection oven.

18.   It is more probable that the Landlord provided the Tenant with a stove when the tenancy commenced.  The Landlord’s evidence that she purchased a convection oven on October 30, 2017 and two induction hot plates on October 20, 2017 support a finding that there was a stove in the unit prior to this purchase as it is unlikely the Landlord would purchase these appliances if there was already a stove in the unit.

19.   However the issue claimed by the Tenant does not amount to a breach of section 20. 

20.   I agree with and adopt the following reasoning as set out in Order CET-68554-17-RV:

a)   Furthermore, the T2 application that the Tenants filed was not the relevant application to address the issue in the application.

 

b)   Section 130 of the Act specifically contemplates that a landlord may unilaterally reduce or discontinue a service or facility that was originally provided and formed part of the tenancy agreement. If a landlord removes a service or facility the tenant may file the applicable application with the Board and request a rent reduction. That application is a T3 application.

 

c)   Section 2 of the Act states in part:

a.        “services and facilities” includes,

                                                                           i.      (b)   parking and related facilities,

 

d)   Section 130 of the Act states:

130 (1) A tenant of a rental unit may apply to the Board for an order for a reduction of the rent charged for the rental unit due to a reduction or discontinuance in services or facilities provided in respect of the rental unit or the residential complex. 

Same, former tenant

(2)  A former tenant of a rental unit may apply under this section as a tenant of the rental unit if the person was affected by the discontinuance or reduction of the services or facilities while the person was a tenant of the rental unit. 

Order re lawful rent

(3)  The Board shall make findings in accordance with the prescribed rules and may order,

a)      that the rent charged be reduced by a specified amount;

b)      that there be a rebate to the tenant of any rent found to have been unlawfully collected by the landlord;

c)      that the rent charged be reduced by a specified amount for a specified period if there has been a temporary reduction in a service. 

Same

(4)  An order under this section reducing rent takes effect on the day that the discontinuance or reduction first occurred. 

Same, time limitation

(5)  No application may be made under this section more than one year after a reduction or discontinuance in a service or facility. 

 

e)   The amount of the rent reduction that a tenant may be entitled to is determined in accordance with the prescribed rules that are set out in section 39 of Ontario Regulation 516/06 (the ‘Regulation’) made under the Act.

 

f)     The Regulation sets out different rules for determining an appropriate rent reduction depending on whether a landlord’s removal or discontinuance of a service was reasonable or unreasonable.

 

g)   Therefore, whether a landlord’s removal of a service was reasonable or unreasonable, a tenant’s remedy is a rent reduction which is determined in accordance with the prescribed rules.

 

h)   The Tenants did not file a T3 application. They filed a T2 application claiming substantial interference. That claim is governed by sections 29 and 31 of the Act which permit different remedies to be requested and ordered.

 

i)     Substantial interference with reasonable enjoyment is very broad and general claim and could potentially encompass any number of issues that could arise during a tenancy. However, when an issue raised in an application falls under a more specific and applicable section of the Act, the issue should be determined under that specific and applicable section.

j)      This is similar to the situation that arises when a tenant does not pay the rent that is due. There is an applicable process, remedy and application for rent arrears. Although a tenant’s failure to pay the rent could potentially be characterized or claimed as a substantial interference with a landlord’s reasonable enjoyment of the residential complex, the Board does not determine rent arrears issues under that type of claim. It requires a landlord to follow the applicable process and sections in the Act regarding rent arrears.

21.  To make findings based on an application under sections 29 and 31 of the Act instead of findings based under section 130 disregards the statutory framework of the Act because the Act contemplates a change in a service or facility that is provided as part of the tenancy and the Act provides rules and remedies for such a change.

22.  In this case subsection 2(1)(a) includes appliances in the definition of service or facility. Therefore in seeking an abatement for the removal of a stove, the Tenant ought to have filed a T3 application such that the relevant rules and remedies for such a change could be applied.

23.  However, I have also considered whether the removal of the stove amounts to substantial interference. The evidence does not establish that the removal of the stove amounts to substantial interference.  The Landlord provide the Tenant with multiple appliances (two hot plates, a microwave and a convection oven) to replace the stove.  It is unlikely that the Tenant would be unable to prepare most meals with these appliances.  The Tenant has an obligation pursuant to section 16 to minimize losses in the event of a breach.  I am not satisfied that the removal of the kitchen exhaust which probably occurred when the stove was removed impacted the Tenant with the use of the replacement appliances provided to him.  His photo of the kitchen shows a window above the sink which provides the Tenant with a means to air out any cooking odours or smoke.

24.  The Tenant’s complaint that the Landlord removed the kitchen island is dismissed.  There is insufficient evidence to establish that the Landlord removed this island."

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