Utilities - Re: Shared Billing (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1054
Page Categories:	[Payment of Rent (LTB)]
Citation:	Utilities - Re: Shared Billing (RTA), CLNP 1054, <>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2022/09/23

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

Apportionment of utility costs

138 (1) A landlord of a building containing not more than six rental units who supplies a utility to each of the rental units in the building may, with the written consent of the tenant, charge the tenant a portion of the cost of the utility in accordance with the prescribed rules if,

(a) the landlord provides adequate notice to the tenant in accordance with the prescribed rules; and

(b) the rent for the rental unit is reduced in accordance with the prescribed rules. 2010, c. 8, s. 39 (1).

Not a service

(2) If a landlord charges a tenant a portion of the cost of a utility in accordance with subsection (1), the utility shall not be considered a service that falls within the definition of “rent” in subsection 2 (1). 2010, c. 8, s. 39 (1).

Termination of tenancy prohibited

(3) If a landlord charges a tenant a portion of the cost of a utility in accordance with subsection (1), the landlord shall not serve a notice of termination under section 59 or make an application to the Board for an order under section 69 or 87 if the notice or application is based on the tenant’s failure to pay the utility charge. 2010, c. 8, s. 39 (1).

Information for prospective tenants

(4) If a landlord charges tenants a portion of the cost of a utility, the landlord shall, before entering into a tenancy agreement with a prospective tenant, provide the prospective tenant with the following information:

1. The portion of the cost of the utility that is applicable to the rental unit that would be occupied by the prospective tenant, expressed as a percentage of the total cost of the utility.

2. The total cost of the utility for the building for the prescribed period for which the landlord has information on the cost of the utility.

3. If any part of the building was vacant during any part of the period to which the information referred to in paragraph 2 applies, a statement of which part of the building was vacant and of the period that it was vacant.

4. Such other information as is prescribed. 2010, c. 8, s. 39 (1).

Utility conservation and efficiency obligations

(5) If a landlord charges a tenant a portion of the cost of a utility, the landlord shall, in accordance with the prescribed rules,

(a) ensure that any appliances provided by the landlord satisfy the prescribed requirements relating to conservation and efficient use of the utility;

(b) ensure that other aspects of the rental unit satisfy the prescribed requirements relating to conservation and efficient use of the utility; and

(c) ensure that other prescribed requirements relating to conservation and efficient use of the utility are complied with. 2010, c. 8, s. 39 (1).

Tenant’s application

(6) A tenant or a former tenant of a rental unit may apply to the Board in the prescribed circumstances for an order determining whether the landlord has breached an obligation under this section. 2010, c. 8, s. 39 (1).

Order, general

(7) If the Board determines in an application under subsection (6) that a landlord has breached an obligation under subsection (4) or (5), the Board may do one or more of the following:

1. Order an abatement of rent.

2. Authorize a repair or replacement that has been or is to be made, or work that has been or is to be done, and order its cost to be paid by the landlord to the tenant.

3. Order the landlord to do specified repairs or replacements or other work within a specified time.

4. Order that the rent charged be reduced by a specified amount and order the appropriate rebate.

5. Make any other order that it considers appropriate. 2010, c. 8, s. 39 (1).

Order, breach of subs. (1)

(8) If the Board determines in an application under subsection (6) that a landlord has breached an obligation under subsection (1), the Board may, in addition to the remedies set out in subsection (7), do one or more of the following:

1. Terminate the tenancy.

2. Order that the landlord assume the obligation to supply the utility to the rental unit and set the new rent that can be charged. 2010, c. 8, s. 39 (1).

Eviction with termination order

(9) If the Board makes an order terminating a tenancy under paragraph 1 of subsection (8), the Board may order that the tenant be evicted, effective not earlier than the termination date specified in the order. 2010, c. 8, s. 39 (1).

Determination re capital expenditures

(10) For the purpose of section 126, a capital expenditure is not an eligible capital expenditure if,

(a) the landlord charged tenants a portion of the cost of a utility before the capital expenditure was made;

(b) the capital expenditure failed to promote the conservation or more efficient use of the utility; and

(c) the purpose for which the capital expenditure was made could reasonably have been achieved by making a capital expenditure that promoted the conservation or more efficient use of the utility. 2010, c. 8, s. 39 (1).

O. Reg. 394/10: SUITE METERS AND APPORTIONMENT OF UTILITY COSTS

Apportionment of Utility Costs

Calculation of the tenant’s portion of utility cost — s. 138 (1) of the Act

13. (1) The following rules apply if, under subsection 138 (1) of the Act, a landlord of a building containing not more than six rental units who supplies a utility to each of the rental units in the building charges the tenant a portion of the cost of the utility:

1. Subject to paragraph 2, the portion of the cost to be charged to the tenant for a billing period must be determined in accordance with a method described in subsection (2) or (3).

2. If the cost is being apportioned among tenants in more than one rental unit, the portion of the cost apportioned to each of those rental units must be determined using the same method.

3. The rules set out in paragraphs 1 and 2 do not apply with respect to a particular utility if, immediately before the date on which subsection 138 (1) of the Act comes into force, the landlord was charging any tenant in the building a portion of the cost of that utility. O. Reg. 394/10, s. 13 (1).

(2) The cost of the utility may be apportioned to a rental unit by dividing the total cost of the utility for all of the residential units in the building and the related common areas for each billing period by the number of residential units in the building. O. Reg. 394/10, s. 13 (2).

(3) The cost of the utility may be apportioned to a rental unit by dividing the total cost of the utility for all of the residential units in the building and the related common areas for each billing period by the total square footage of all residential units in the building, and multiplying the resulting amount by the square footage of the applicable tenant’s rental unit. O. Reg. 394/10, s. 13 (3).

(4) For the purposes of subsections (2) and (3), the total cost of the utility does not include any penalties or charges related to late payment. O. Reg. 394/10, s. 13 (4).

Notice of apportionment of utility cost — s. 138 (1) (a) of the Act
14. (1) The following rules apply with respect to the notice that a landlord is required by clause 138 (1) (a) of the Act to provide to a tenant of a rental unit if the tenant is to be charged a portion of the cost of a utility:

1. Written notice must be given to the tenant at least 30 days before the landlord begins to charge the tenant a portion of the cost of the utility.

2. The notice must state the amount of the rent reduction for the rental unit and the effective date of the reduction.

3. The notice must describe the method by which the tenant’s portion of the cost of the utility is being determined and must describe how the rent reduction is calculated. O. Reg. 394/10, s. 14 (1).

(2) Subsection (1) does not apply if, immediately before the date on which subsection 138 (1) of the Act comes into force, the landlord was charging the tenant a portion of the cost of the utility. O. Reg. 394/10, s. 14 (2).

EAL-67358-17 (Re), 2017 CanLII 94101 (ON LTB)

22. Sections of the Act or subsections of section 138 cannot be read in isolation. Ontario Regulation 394/10 (the ‘Regulation’) is applicable to section 138 of the Act and must be read together with section 138.

23. When section 138 is read in its entirety, together with the provisions of the Regulation, it is established that subsection 138(1) of the Act is applicable to the situation where a tenant had a utility such as hydro included in the rent and a landlord wants to now charge the tenant a portion of the total hydro charges incurred. The rent must be reduced in accordance with the prescribed rules which are found in the Regulation. Thirty days’ notice must be given (s.14 of the Regulation). If subsection 138(1) applied to the tenancy when the tenant was merely a prospective tenant, then it would not be necessary for the landlord to give the tenant 30 days notice that he was going to charge the tenant a portion of utilities or reduce the rent. Furthermore, the prospective tenant who is considering and negotiating the tenancy is not yet a tenant and the wording of subsection 138(1) make it clear that it applies to a tenant.

24. In this case, hydro was never included in the rent. The Landlord never supplied the hydro cost free. The Landlord does not have to reduce the rent. The rent amount never included hydro.

25. Subsection 138(1) of the Act is not applicable to this tenancy.

26. Subsection 138(3) of the Act is only applicable if the situation in subsection 138(1) is applicable. This is clear from the wording of subsection 138(3) where it states “If a landlord charges a tenant a portion of the cost of a utility in accordance with subsection (1)”…(emphasis added). Subsection 138(3) of the Act is not applicable to this tenancy.

27. However, subsection 138(4) of the Act is applicable to the tenancy. The Landlord was obligated to give the prospective tenant the information set out in the Act and Regulation, such as the hydro charges for the prior year. This ensures that a prospective tenant is aware of the estimated cost of hydro that they will be responsible for.

28. There is no dispute that the Landlord did not give this information to the Tenant when the tenancy was being negotiated.

29. However, there is one year limitation period for the Tenant to bring this issue before the Board for resolution. That one year limitation period is set out in section 18.1. of the Regulation. This Tenant was a prospective tenant in January 2015, well outside the one year limit. Due to the one year limit, this issue cannot be considered by the Board.

30. The Landlord did not harass, obstruct, coerce, threaten or interfere with the Tenant or substantially interfere with the reasonable enjoyment of the rental unit or residential complex by the Tenant by attempting to collect the unpaid hydro charges. They are legitimate charges that the Tenant is responsible for and the Landlord was within his rights to collect them. As a result, the Tenant’s application must be dismissed.