Tenants Rights
Interpretation Guideline 6

Interpretation Guidelines are intended to assist the parties in understanding the Board's usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making. However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case.


Under subsection 29(1) of the Residential Tenancies Act, 2006 (the "RTA") a tenant may apply to the Board for an order determining that the landlord, superintendent or agent of the landlord 1:

Section 31 of the RTA sets out the remedies which the Board may include in an order if a finding is made in respect to any of these matters (referred to as the "actions").

Under subsections (1), (2) and (3), these remedies include:

If the conduct induced the tenant to vacate the unit, subsection (2) also permits the Board to order the landlord to pay a specified amount to the tenant as compensation for:

Section 8 of O. Reg. 516/06, made pursuant to section 241 of the RTA, sets out criteria to be applied by the Board in determining whether there is substantial interference when a landlord does maintenance, repairs or capital improvements; as well as criteria for determining whether to order an abatement of rent, and rules for calculating the abatement.

Subsection 31(3) permits the Board to order the landlord to allow the tenant to recover possession of the rental unit. If the landlord does not voluntarily comply with the Board's order by allowing the tenant to regain possession, the tenant can enforce the Board's order through the sheriff's office. In the case where the tenant does not regain possession, the Board's order will expire at the end of 15 days after the date it was issued if it has not been filed with the sheriff's office. Even where the tenant files the order with the appropriate sheriff's office the Board's order will expire at the end of the 45th day (see subsection 31(4) and (5) for exact wording of the RTA).

Applying section 29 (2) One Year Limitation Period

An application must be made by the current or former tenant within one year of the date the alleged breach occurred. When determining whether an application has been made in time pursuant to subsection 29(2) of the RTA, a Member will have to determine when the alleged breach occurred.

When a breach is a single event such as an illegal entry, then the limitation period begins on the day the event happened. Where the breach is not a single event but is ongoing or recurring as may be the case with some instances of interference with reasonable enjoyment or the withdrawal or withholding of a vital service, then the breach occurs over a period of time and the limitation period runs from the date that the behaviour causing the interference with reasonable enjoyment ceases or the vital service is restored to the tenant. However, in all cases the limitation period is one year.

The intention behind the limitation period found in section 29(2) of the RTA is that the applicant has only a certain amount of time to file the application and obtain a remedy, but may bring the application at any time within the limitation period. The fact that the tenant did not bring the application when the breach first arose does not affect the tenant's right to file an application. There is no provision in the RTA requiring the tenant to bring an application immediately upon the breach of the Act. However, the tenant may not include in an application any issue which has been resolved by the landlord more than one year before the application was filed.

If the application is filed "in time" pursuant to subsection 29(2) and the breach is no longer occurring as of the date of the order, the Board may award a remedy (such as a rent abatement) for the timeframe calculated from one year prior to the application filing date to the date the breach ended . Where the breach is ongoing as of the date of the order, the potential remedy may provide for periods beyond the date of the order to the date that the breach is no longer occurring (Goodman and Pearlman v. Menyhart and Menyhart, [2009] O.J. No. 1602, and Toronto Community Housing Corp v. Allan Vlahovich, [2010].O.J. No. 1463). (For a discussion regarding remedies that can be ordered by the Board see the sections on remedies later in this Guideline.)

The most recent decision that considered the proper application of subsection 29 (2) was that of the Divisional Court in Toronto Community Housing Corp. v. Vlahovich, [2010] O.J. No. 1463. In Vlahovich, the Court stated:

In light of the one year limitation period in s. 29 (2), the Board can only make a determination that a landlord has breached an obligation under s. 20 (1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one year period.

In Vlahovich, the Divisional Court explained that, "properly understood" the earlier decision of the Divisional Court in Goodman v. Menyhart, [2009] O.J. No. 1602, was not inconsistent with the Court approach in Vlahovich. The Court emphasized that the Divisional Court panel in Goodman v. Menyhart had ordered that an abatement can extend back one year before the application had been made and no further. The Court in Vlahovich stated that in Goodman v. Menyhart, the only issue was whether the limitation period should extend back twelve months from the order of the Board or from the filing of the application. In that case, and, consistent with the reasoning in Vlahovich, the limitation period extended back one year from the filing of the application.

Where Notice is Given in Bad Faith

A notice of termination of the tenancy can be given by the landlord:

A former tenant may file an application with the LTB under section 57 of the RTA if the former tenant believes that:

  1. the landlord gave a notice to a tenant under sections 48,49 or 50 in bad faith; and
  2. the tenant moves out of the unit as a result of the landlord's notice or an application to the Board or an order by the Board based on such a notice; and
  3. no person specified under the appropriate subsection has occupied the unit within a reasonable time after the tenant vacated the rental unit, or the landlord did not demolish, convert or repair or renovate the rental unit within a reasonable time after the tenant vacated the rental unit.

The application must be filed by the former tenant within one year after they vacated the rental unit.

For applications based on a notice given under section 48 on or after September 1, 2017, it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave the notice of termination in bad faith if the landlord:

  1. advertises the rental unit for rent;
  2. enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;
  3. advertises the rental unit, or the building that contains the rental unit, for sale;
  4. demolishes the rental unit or the building containing the rental unit; or
  5. takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises.

These provisions only apply during the period that begins on the date the landlord gave the tenant the notice and ends one year after the former tenant moves out of the unit.

If the tenant proves that the landlord gave the notice of termination in bad faith, the tenant moves out of the unit as a result of the landlord's notice or an application to the Board or an order by the Board, and the specified person has not occupied the unit within a reasonable time after the tenant vacated, or the landlord did not demolish, convert or repair or renovate the rental unit within a reasonable time after the tenant vacated, the LTB may order the landlord to pay:

  1. a specified sum to the tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit;
  2. reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur;
  3. an order for abatement of rent;
  4. an administrative fine not exceeding the greater of $25,000 and the monetary jurisdiction of the Small Claims Court; or,
  5. any other order that the LTB considers appropriate.

For further information about these applications see Guideline 12, "Eviction for Personal Use, Demolition, Repairs and Conversion".

Properly Naming Respondents

It is essential that the tenant name the appropriate persons as respondents. The tenant should name the landlord as a respondent in the application as well as any other person that they believe is responsible for the issues that they are raising in their application. If a person who the tenant alleges to be responsible is not named as a party to the application, and thus has no opportunity to respond to the allegations and make submissions on the possible remedies, no remedies will be ordered against that person.

For example, if the tenant names only the landlord as a respondent, but proves that a superintendent or agent of the landlord was responsible for the action, the Board can order remedies against the landlord but cannot order remedies against the superintendent or agent personally.

If the landlord is a corporation or similar entity, the Member must determine whether the persons who engaged in the actions against the tenant were acting on behalf of the landlord. A corporation may only act through human beings: namely, its officers and employees. The corporation may also enter into a contract with an agent to act on its behalf. Thus, if the individual who engaged in the action against the tenant was an officer, employee or agent of the corporation, the corporation is responsible as the landlord and the Member may order remedies against both the individual and the corporation. If the tenant decides early in the hearing that another respondent should have been named, the Member must consider whether the tenant should have been aware that the other respondent should have been named in the application. The hearing would have to start again from the beginning if another respondent is added by the Member. However, if the other respondent is a corporation, one of whose employees, officers or agents was at the hearing already, it might not be necessary to re-start the hearing.

Remedies

If the Board determines that the landlord, superintendent or agent has violated the rights of the tenant under subsection 29(1), the Board may order any one or more of the remedies mentioned in subsection 31(1).

Abatement Orders

If the Board determines that the landlord, superintendent or agent has violated the rights of the tenant under subsection 29(1), the Board may order any one or more of the remedies mentioned in subsection 31(1).

If the Board determines that an abatement of rent is appropriate in the circumstances, the Board will determine the amount and/or duration of the abatement. To make this determination the Board will look at factors such as:

When a Member finds that the respondent engaged in actions against the tenant, they should consider the effects those actions would have on an average tenant. However, if it is proven that the respondent was aware of particular circumstances of this applicant which would aggravate the effects of the actions, those circumstances should be considered. For example, cornering a person in a parking garage and raising one's voice may be annoying to most tenants; however, if the landlord knows the tenant is vulnerable and lives alone, such an incident may be seriously disturbing and may warrant a larger abatement of rent.

If a superintendent or agent is proven to have engaged in the actions, and not the landlord, an order for the landlord to pay an abatement may be made if the person who engaged in the actions was an employee, agent or officer of the landlord, whether or not acting properly under instructions from the landlord.

A superintendent or agent would not be ordered to pay an abatement of rent, since the tenant pays rent to the landlord; however, they may be ordered to pay compensation (see below under "other appropriate orders").

Orders Prohibiting Actions Against Tenants

Normally the order will direct the respondent not to engage in any of the listed activities against any tenant in the complex. This remedy may be appropriate even if there is no evidence that the landlord has engaged in similar actions against another tenant or tenants. However, in an appropriate case, the Member may order the respondent not engage in a specific activity against the applicant tenant and members of their household.

The main test in deciding whether to order this relief is whether it is in the public interest to deter this respondent from any further occurrence of actions against tenants. This is particularly true if the actions against the tenant threatened the health or safety of the tenant or a member of their household.

Orders Terminating Tenancies

There are several situations in which a tenancy may be terminated by the order.

If the tenant was induced to move out of the unit by reason of the landlord's actions, and the Member finds that moving out was reasonable in the circumstances, the tenancy should be ordered terminated, usually as of the date they vacated the unit. This will prevent the landlord from applying to the Board for any further rent from the tenant. The Member should order the landlord to refund to the tenant all rent paid pertaining to the period of time after the effective date of termination, plus the rent deposit. For example, if the termination is June 15, and June rent and a rent deposit were paid, the landlord should refund 1 1/2 months rent to the tenant. The authority for such an order is "Other Appropriate Orders" (see below).

If the tenant requests termination of the tenancy or if the parties agree, termination may be ordered. It is desirable if the parties agree on appropriate terms and timing of the termination. This would avoid unintended financial consequences to one or both of the parties. If the Board makes an order terminating the tenancy the Board may also order that the tenant be evicted.

If the tenant wants to stay in the unit, this request should be honoured unless there is clear danger to the occupants of the unit. If the health or safety of the tenant or a member of their household is threatened, the tenancy should be terminated.

If the respondent's actions put the tenant in a position that the tenancy cannot be safely continued, the request to terminate the tenancy should be granted. For example, the landlord cuts off a tenant's heat in the winter. In order not to put the tenant at a disadvantage compared to a tenant who moved out before applying, the Member might also order the respondent to pay the tenant's moving expenses, even if these have to be estimated.

Orders to Pay an Administrative Fine

An administrative fine is a remedy to be used by the Board to encourage compliance with the RTA and to deter landlords, superintendents and agents from engaging in similar actions in the future. This remedy is appropriate in serious cases where the landlord has shown a blatant disregard for the RTA and other remedies will not provide adequate deterrence and compliance.

For further information on administrative fines please see Guideline 16.

Other Appropriate Orders

The legislation allows the Board to make an order which may be appropriate, in addition to the other remedies set out in sections 30 and 31 of the RTA. Before making such an order the Member shall take into consideration the individual circumstances between the parties and will advise the parties of the order they may be considering. The Board will allow the parties an opportunity to make submissions on the order and will also consider the practicality and enforceability of the order.

Compensation for Future Rent and Moving Expenses

These remedies are limited to cases in which the applicant was induced to vacate the unit as a result of the landlord actions. For example, if the respondent's conduct was sufficient to justify a finding of serious interference with reasonable enjoyment, to a degree that would cause the average tenant to vacate, moving expenses and other reasonable out of pocket expenses can be ordered. This compensation is in addition to any abatement of rent or other remedies ordered.

The tenant may claim for "all or any portion of any increased rent which the tenant has incurred or will incur for a one year period after the tenant has left the rental unit." The first question then is whether the tenant has actually rented another unit, and what the rent for that unit is. If the rent is higher, the total amount that could be ordered is the difference over a 12 month period. However, if the tenant has rented a larger unit or a better unit, the Member would consider evidence of the rents for units in the neighbourhood similar to the unit which is subject of the application. The compensation could be limited to the lower amount.

However, the tenant is not required to make an exhaustive search of every possible rental unit. If the tenant rents a comparable unit, after a reasonable search, they should not be expected to have found the lowest rent possible. Further, the tenant cannot be expected to have rented another unit from the respondent, even at a lower rent.

In some cases, a tenant who has been forced to leave the rental unit as a result of the landlord's actions will be living in temporary accommodation at the time of hearing. The tenant may be paying little or no rent for this temporary accommodation. However, if the tenant can establish that they have found permanent accommodation after a reasonable search and intend to move into this accommodation, the tenant could make a claim for the increased rent they will incur once they move into the permanent accommodation. Such proof could include a rental application or a signed lease. However, the time limit for making such a claim is 12 months after the tenant vacated the rental unit which is the subject of the application.

In addition, the tenant may also claim "reasonable out of pocket moving, storage and other like expenses." These are costs which the tenant has already incurred which may be proven by bills or receipts, or will incur and may be proven by contracts or quotations. The term "other like expenses" would include other costs that were incurred or will be incurred in order to move into another unit, such as a fee to an apartment locating service or real estate service or expenses to move the telephone or cable service.

Interference Resulting from Maintenance, Repairs or Capital Improvements

Where the landlord has substantially interfered with a tenant's reasonable enjoyment of a unit or complex while carrying out maintenance, repairs or improvements, the remedy that the Board will normally consider is an abatement of rent. It is unlikely that the Board will consider it reasonable to order the landlord to stop doing the work. However, in some cases, it may be appropriate to consider an order for payment of the tenant's out-of-pocket expenses, an order terminating the tenancy or, where the tenant has been induced to move as a result of the activity, an order for payment of increased rent and moving expenses.

Section 241 of the RTA provides the authority to make regulations that set standards and criteria to be applied where tenants claim that landlords have substantially interfered with their reasonable enjoyment of the unit or complex in carrying out maintenance, repairs or capital improvements to the unit or complex. The section also authorizes regulations establishing criteria that must be applied by the Board in determining whether to order an abatement of rent in these applications.

These standards and criteria are found in section 8 of O. Reg. 516/06. The regulation requires the Board to consider the effect of the work on the tenant's use of the unit or the complex. The Member must determine that the effect was unreasonable in the circumstances, in order to find that there has been a substantial interference with the tenant's reasonable enjoyment of the unit or complex. If it is not found that the effect on the tenant was unreasonable in the circumstances, the application will be dismissed.

If it is determined that there has been a substantial interference, the regulation provides that the Board shall not grant the remedy of an abatement of rent, regardless of the effect of the work on the tenant, if the landlord has met the ten conditions set out in the regulation.

Where it is determined that there has been substantial interference and that an abatement is not prohibited, the Board will consider the five criteria set out in the regulation in determining whether it is appropriate to order an abatement and the amount of the abatement.

Any abatement ordered will not exceed 25% of the monthly rent for any month or part of a month in which there is substantial interference unless the specific circumstances exist as set out in the regulation. In such case, the Board cannot order an abatement of rent that exceeds 100 per cent of the rent for each month or part of a month during which the Board determines that the work substantially interfered with the tenant's reasonable enjoyment of the rental unit or residential complex.



1 For the exact text of these provisions, see the RTA.



September 1, 2017
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