Illegal Rent Charges

TET-92785-18 (Re), 2019 CanLII 89697 (ON LTB)

13. Pursuant to s. 116(1):

"A landlord shall not increase the rent charged to a tenant for a rental unit without first giving the tenant at least 90 days written notice of the landlord’s intention to do so."

14. There is no dispute that the notice required by s. 116(1) was not given here.

18. Pursuant to the Court of Appeal’s decision in Price v. Turnbull’s Grove Inc., 2007 ONCA 408', the deeming provisions in section 136 that make an illegal increase legal after one year do not apply where the rent increase is “void”. Rather the deeming provision only applies where the landlord has given 90 days written notice in advance; so for example, it would cover the situation where proper notice was given, but the amount set out for the increase is wrong.

19. The second problem with respect to the Landlord’s argument concerning s. 136(2) is that it explicitly states that the deeming provision does not apply where an application is filed within one year of the increase and the lawfulness of the increase is an issue in the application.

20. Here, the Landlords filed an application with the Board (in Board file TEL-92093-18) on June 15, 2018. The lawfulness of the rent increase was an issue in that application. In fact the Board’s order issued on July 24, 2018 explicitly states the increase the Landlords took in September of 2017 violated the Act and was unlawful. More importantly, the Tenant’s application here was filed within one year of the first illegal increase taking effect and explicitly raises the issue of the illegal rent increase, so s. 136(2) has no application whatsoever.

24. I would observe at this point that the Tenant’s T1 application only seeks $45.50 in unpaid interest and $2,700.00 in illegal rent collected. Normally, this would mean that the Board’s jurisdiction is limited to those amounts. However, the Board has the power to amend an application and I am prepared to do so in this instance. I say this for a number of reasons.

25. As indicated above, the Tenant’s application was filed a year ago and the amount of interest owing and illegal rent paid has naturally increased over that period of time. Further, the Tenant’s T2 application also mentions the illegal rent and seeks a remedy for it in the form of an abatement of $3,000.00. In addition, the Landlords presented absolutely no defense with respect to the illegal rent increase or the failure to pay interest.

26. In other words, it cannot be said the Landlords were unaware of the extent of their jeopardy or disputing their liability. So I am satisfied that it would not be unfair in all of the circumstances to amend the Tenant’s T1 application to accurately set out as remedies the amounts actually owing for unpaid interest and illegal rent collected.

27. So an order shall issue requiring the Landlords to pay to the Tenant $66.30 in unpaid interest and $4,300.00 in illegal rent.