Substantial Compliance - Notice Law - (LTB)

O’Shanter Development v. Bernstein, 2018 ONSC 557 (CanLII)

[12] The Board identified that the central issue to be determined in the case was whether the Landlord’s notices of rent increase comply with the requirements of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA). The Board noted that the Landlord’s representative agreed at the hearing that, if the Board determines that the Landlord’s notices of rent increase are defective, the Landlord’s applications to terminate the tenancy and evict the Tenant for non-payment of rent must be dismissed.

[13] A primary issue of estoppel was raised at the hearing by the Landlord. In his submissions to the Board at the hearing, counsel for the Landlord, stated the following, in part:

So clearly, if the tenants sought to challenge the validity of the rents charged, the time to do it was in the context of the AGI, if you accept the reasoning in Mascan and Ponzi and then if you apply the principles in Mascan and Ponzi, it’s my submission that it would be an abuse of process to allow the tenants after having consented to the increases that were set out in the Notices of Rent Increase subject to adjustment to allow them now to challenge the validity of those Notices of Rent Increase, and those rent increases were essentially established as a result of the Board’s processes, and the Board’s reliance on the rents that were set out in the applications filed with the Board.

[14] In response, the Tenant submitted that estoppel was not available in this case and in support of this position referred the Board to the decision in Price v. Turnbull's Grove Inc., 2007 ONCA 408, (2007), O.R. (3d) 641, which held that a rent increase that is void under the Act is of no force and effect. The Court stated at para. 37, “It is as if the increase never occurred.”