Defining 'Rent' - Re: LTB

Residential Tenancies Act, 2006

2 (1) In this Act,

“rent” includes the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit and for any services and facilities and any privilege, accommodation or thing that the landlord provides for the tenant in respect of the occupancy of the rental unit, whether or not a separate charge is made for services and facilities or for the privilege, accommodation or thing, but “rent” does not include,

(a) an amount paid by a tenant to a landlord to reimburse the landlord for property taxes paid by the landlord with respect to a mobile home or a land lease home owned by a tenant, or

(b) an amount that a landlord charges a tenant of a rental unit in a care home for care services or meals; (“loyer”)

113 Subject to section 111, the lawful rent for the first rental period for a new tenant under a new tenancy agreement is the rent first charged to the tenant. 2006, c. 17, s. 113.

Morrison v. Rose, 2018 ONSC 3635 (CanLII)(DIVISIONAL COURT)

[10] The appellants raised the following grounds of appeal:

a. Did the trial judge err in determining that utilities are a component of “rent” under the Residential Tenancies Act, 2006 (“the Act”)?

b. Did the trial judge err in determining that the maintenance charges would need to be addressed via an application to the Landlord and Tenant Board for increased rent pursuant to s. 126 of the Residential Tenancies Act, 2006?

c. Did the trial judge err in determining that the plaintiff/appellant did not have a claim based on unjust enrichment?

d. Did the trial judge err in determining that the partial payments made by the respondent to the plaintiff/appellant did not extend the limitation period of two years provided for in the Limitations Act, 2002?

e. Did the trial judge err in failing to award costs to the appellants?

f. If the appeal is allowed, what is the appropriate remedy?

[52] The trial judge held that the water and hydro utility charges clearly were rent under s. 2 of the Act respectively. He indicated that he believed the LTB was wrong as a matter of law in taking the position that utilities were not a component of the rent.

[53] In my respectful view, the trial judge erred in not accepting the terms and finality of the LTB order of September 25, 2014.

[54] If he had done so, he should have found that he had the authority to decide the issue of those arrears of utilities for water and hydro services costs up to September 25, 2014.