Cause of Action - Re: On-Going Breach (RTA)

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CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB)

PT (the 'Tenant') applied 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 (T3 Application).

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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. 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.

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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.

SWL-04276-09 (Re), 2012 CanLII 36400 (ON LTB)

5. Further, and with respect, I do not agree with the Landlord’s submissions under the Divisional Court’s judgment in Toronto Community Housing Corporation v. Vlahovich, 2010 ONSC 1686 (CanLII), 2010 ONSC1686 (CanLII). Specifically, the Court’s observation at para. 9 of its reasons that, “In light of the one year limitation period in s. 29(2), the Board can only make a determination that a landlord has breached an obligation under section 20 during the one year period before making the application” cannot be upheld as grounds for disallowing proceedings under section 20 for an ongoing breach, however long the state of disrepair may have persisted before that date. The Court specifically held that the Board had the authority to consider the circumstances of a breach of maintenance obligation preceding the year before the application was brought for context, but limited the Board’s remedial authority under section 29 to the year before the commencement of proceedings. Under that judgment, the Board may consider evidence of a breach lasting years – to understand the whole context of the breach and factors potentially relevant to the proper exercise of remedial discretion – but order remedies for losses occurring only within the one year period. On that basis, a breach may be outstanding for longer than one year, but the Board will be limited to ordering remedies only for losses arising during the year before filing. That the underlying cause of the state of disrepair may have occurred longer than one year pre-filing does not preclude the ordering of remedies for the one year period where the state of disrepair remains ongoing.