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.

63. Further, and as I pointed out at the hearing, there is another mandatory relief from eviction provision relevant here. Subparagraph 83(3)(a) says:

(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,

(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

64. The reason this is an issue is because the Landlord continues to charge illegal rent despite a previous Board order in which the Board explicitly states the rent was never lawfully increased from $1,300.00. Pursuant to s. 234(l) of the Act this is actually an offence. In other words, the Landlord is in serious breach of the Act.

65. So I am satisfied the application must be dismissed because relief from eviction is mandatory in the circumstances here. An order shall issue accordingly.

66. This order contains all of the reasons for the decision within it. No further reasons shall be issued.

TNL-05541-18 (Re), 2019 CanLII 87063 (ON LTB)

1. At the November 7, 2018 hearing, the Tenants submitted that the Landlord did not claim the lawful monthly rent in the Landlord’s Form N4 notice of termination and application to the Board. The Tenants alleged that they did not receive a notice of rent increase in 2012, and that the notice of rent increase they received in 2011 is void, because the Landlord did not give the required 90 days’ notice to increase the rent. The Tenants therefore submitted that their lawful rent is $756.18.

3. The Landlord’s agent testified at the November 7, 2018 hearing that the 2012 notice of rent increase the Landlord served on the Tenants was invalid, because the Landlord did not give the Tenants the required 90 days’ notice to increase the rent under subsection 116(1) of the Residential Tenancies Act, 2006 (the ‘Act’). The Landlord’s agent further testified that, despite the improper notice, the Landlord collected the rent increase claimed in the 2012 notice of rent increase. Upon discovering its error, however, the Landlord credited the Tenants $231.66 on September 20, 2013. The Landlord’s representative submitted business records to confirm the Landlord’s agent’s testimony.

4. Based on the Landlord’s evidence, I conclude that the Landlord’s 2012 notice of rent increase is invalid.

TST-89739-17 (Re), 2018 CanLII 42705 (ON LTB)

4. However, with respect to the T1 application, the following facts were agreed to by the parties at the hearing:

• The Landlord increased the rent for the unit on two occasions – once in June 2014; and a second time in February 2017 –without providing the Tenant with a written Notice of Rent Increase (“NORI”) – as required by the Act;
• In the first rent increase (effective June 1, 2014)(imposed without a NORI), the rent for the unit moved from $581.00/month to $625.00/month;
• In the second rent increase (effective February 2017) (imposed without a NORI), the rent moved from $625.00/month to $650.00/month;
• The Tenant has paid his rent based upon these increases from June 2014, save and except the months of November 2017; December 2017 and January 2018.

6. As I indicated at the hearing:

• a rent increase given without a NORI is void (s.116(4) of the Act;
• A rent increase rendered void under the Act is not just unlawful, it is a nullity like it never occurred (Price v. Turnbull Grove Inc. 2007 ONCA 408 (“Price”))
• the principles of Price apply in a tenant’s application such as this one;
• While the Act (in s.135(4) and s.136) ordinarily imposes a one-year limitation on the Board’s ability to order a return of money illegally collected, void rent increases are accorded special status as recognized by the Ontario Court of Appeal in Price. Increases in rent imposed without a notice of rent increase cannot be saved by the one year time limitation in s.135 and s.136;
• A tenant is entitled to a full refund of illegal rent collected from the date of the void rent increases to the date of the hearing.

15. Until the amount owed by the Landlord to the Tenant under this order is fully paid or recovered, the Tenant may be set off the amount awarded in this order (or any balance owing) against any claim for arrears of rent by the Landlord.