Multi-Tenant Applications

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1995
Page Categories:	[Interference of Reasonable Enjoyment (LTB)]
Citation:	Multi-Tenant Applications, CLNP 1995, <>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2022/09/07

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O’Shanter Development Company Limited v. Terry Babcooke et. al, 2022 ONSC 5040 (CanLII)

[10] The Landlord’s appeal is dismissed on all the six grounds claimed and set out here:

(a) There are no questions of law appealed against in this matter. The Landlord appeals, here, against mixed questions of law and fact, questioning whether the facts satisfy the legal tests used by the Board Member to find for the Tenants (Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 35).

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(b) Contrary to the appellant’s claim, the Board Member did not err in law by concluding that where a Landlord's change of services and facilities is motivated by a desire to "gain more income", it is, by default, "unreasonable" within the meaning of s. 39(2) of O. Reg. 516/06.

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(c) The Member did not err in law when determining the quantum of rent reduction. And she did not fail to provide adequate reasons to support the quantum of 15% of the rent charged.

[22] At the hearing, the Member did not accept the Tenants' evidence of the cost of replacing the onsite storage lockers. Because of this, the Landlord complains that since the burden of proof of value to the Tenants and the effect of the change of the facility lies with the Tenants and only 9 Tenants from 8 rental units presented evidence relevant to the second factor (the effect of the reduction), the Tenants did not satisfy its burden of proof. And as a result, the Member erred by relying on this evidence to affix the quantum of a 15% reduction in rent. The Board erred in restricting its analysis solely to a consideration of the effect of the reduction on the Tenants, the second factor set out in subs. 39(6) of the regulation.

[23] The Board is required by statute to adopt the most expeditious method of determining the questions before it. This is a mandatory, not a discretionary, procedural duty (ORHT v. MTHA & Godwin, 2002 CanLII 41961 (ON CA), 2002CanLii 41961 (CA)).

[24] The adjudicator did not decide the amount of the rebate based on evidence particular to any witness or group of witnesses. She specifically stated that she would not do so.

[25] Instead, she looked at effects that could be presumed for all the Tenants. These included the reduced size of the new locker spaces, the inconvenience of off-site storage, and the distress caused in some form to all Tenants by the loss of a service that was included in their tenancy agreement.

[26] I agree with the Respondent that the adjudicator did nothing unusual and that it was appropriate for the Board Member, in line with Godwin, to interpret section 183 of the Act as justifying the crafting of a global remedy based on similar fact evidence from a handful of Tenants in multi-tenant applications (ORHT v MTHA and Godwin, supra at para 73).

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(d) The Member did not err in law by making findings and awarding remedies to Tenants who did not testify at the hearing about the "effect" upon them of the reduction of the facility. She did not deny the Landlord procedural fairness and natural justice.

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(e) The Member did not err in law when she found that the effective date of the rent reduction was January 28, 2017, for all Tenants.

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(f) It was not an error of law for the Member to disregard compensation agreements reached between the Landlord and some Tenants and, instead, impose a rent reduction to those Tenants.

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