Defense to Rent Abatements (Maintenance) (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2315
Page Categories:	Maintenance Abatements (LTB)
Citation:	Defense to Rent Abatements (Maintenance) (LTB), CLNP 2315, <https://rvt.link/9z>, retrieved on 2024-11-24
Editor:	P08916
Last Updated:	2023/11/25

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O. Reg. 516/06: GENERAL under Residential Tenancies Act, 2006, S.O. 2006, c. 17

8. (1) In this section,

“work” means maintenance, repairs or capital improvements carried out in a rental unit or a residential complex. O. Reg. 516/06, s. 8 (1).

(2) For the purposes of section 22, paragraph 3 of subsection 29 (1) and subsection 31 (1) of the Act, this section applies to the Board in making a determination,

(a) as to whether a landlord, superintendent or agent of a landlord, in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by a tenant or former tenant, or by a member of the household of a tenant or former tenant; and

(b) whether an abatement of rent is justified in the circumstances. O. Reg. 516/06, s. 8 (2).

(3) In making a determination described in subsection (2),

(a) the Board shall consider the effect of the carrying out of the work on the use of the rental unit or residential complex by the tenant or former tenant, and by members of the household of the tenant or former tenant; and

(b) the Board shall not determine that an interference was substantial unless the carrying out of the work constituted an interference that was unreasonable in the circumstances with the use and enjoyment of the rental unit or residential complex by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (3).

(4) If the Board finds that the landlord, superintendent or agent of the landlord, in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by a tenant or former tenant, or by a member of the household of a tenant or former tenant, the Board shall not order an abatement of rent if all of the following conditions are satisfied:

1. The landlord gave notice to the tenant or former tenant at least 60 days before the commencement of the work, or, in cases of emergency, as soon as was reasonable in the circumstances, concerning the work to be carried out.

2. The landlord gave notice to any prospective tenant of a rental unit at the first opportunity to do so before the landlord entered into a new tenancy agreement with that tenant.

3. The notice describes the nature of the work to be carried out, the expected impact on tenants and members of their households and the length of time the work is expected to take.

4. The notice was reasonably accurate and comprehensive in the circumstances at the time it was given.

5. If there was a significant change in the information provided under paragraph 3, the landlord provided to the tenant or former tenant an update to the notice in a timely manner.

6. The work,

i. is necessary to protect or restore the physical integrity of the residential complex or part of it,

ii. is necessary to comply with maintenance, health, safety or other housing related standards required by law,

iii. is necessary to maintain a plumbing, heating, mechanical, electrical, ventilation or air conditioning system,

iv. provides access for persons with disabilities,

v. promotes energy or water conservation, or

vi. maintains or improves the security of the residential complex.

7. If required under the Building Code Act, 1992, a permit was issued in respect of the work.

8. The work was carried out at reasonable times, or if a municipal noise control by-law was in effect, during the times permitted under the noise control by-law.

9. The duration of the work was reasonable in the circumstances.

10. The landlord took reasonable steps to minimize any interference resulting from noise associated with the work. O. Reg. 516/06, s. 8 (4).

(5) If the Board finds that the landlord, superintendent or agent of the landlord, in carrying out work in a rental unit or residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by a tenant or former tenant, or by a member of the household of a tenant or former tenant, and an abatement of rent is not prohibited under subsection (4), the Board shall consider the following in determining whether it is appropriate to order an abatement of rent and the amount of the abatement:

1. The nature, duration and degree of interference with the reasonable enjoyment of the rental unit or residential complex that was caused by the carrying out of the work.

2. Whether the tenant or former tenant is responsible for any undue delay in the carrying out of the work.

3. The steps taken by the landlord during the work to minimize interference with the reasonable enjoyment of the rental unit or residential complex.

4. Whether the tenant or former tenant took advantage of any service provided by the landlord or arrangement made by the landlord that would minimize interference with the reasonable enjoyment of the rental unit or residential complex.

5. Whether a failure to carry out the work could, within a reasonable period of time, reasonably be expected to result in,

i. interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by a tenant or member of his or her household,

ii. a reduction or discontinuation of a service or facility,

iii. damage or additional damage to the rental unit, the residential complex or anything in the unit or complex,

iv. a risk to any person’s health or personal safety, or

v. a breach of section 20 or section 161 of the Act by the landlord. O. Reg. 516/06, s. 8 (5).

(6) Except as permitted under subsection (7), no abatement of rent shall exceed 25 per cent of the monthly rent for each month or part of a month during which there was substantial interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (6).

(7) The Board may order an abatement of rent that exceeds 25 per cent of the monthly rent for a rental unit if,

(a) the Board considers a larger abatement to be warranted in the circumstances because the interference with the reasonable enjoyment of the rental unit or residential complex far exceeded the level that would normally be expected, taking into consideration all of the relevant circumstances; and

(b) the Board is satisfied that,

(i) the work is not work described in paragraph 6 of subsection (4),

(ii) the work was carried out at unreasonable times or at a time that is not permitted under any applicable noise control by-law,

(iii) the work was carried out in a manner that contravened a condition or requirement of a building permit issued under the Building Code Act, 1992,

(iv) the work was carried out over a period of time far in excess of the amount of time that normally would be required, after taking into consideration any exceptional circumstances beyond the control of the landlord, including weather-related delays, delays in obtaining necessary government approvals or permits and delays caused by market shortages of suitable goods or services or qualified labour at reasonable costs, or

(v) the landlord refused to take reasonable steps during the work to minimize interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (7).

(8) The Board shall not order an abatement of rent that exceeds 100 per cent of the monthly rent for each month or part of a month during which the Board determines that the work substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant. O. Reg. 516/06, s. 8 (8).