Tenants May Not Be Limited to Seeking Relief for Only One Year Prior to Application

Traditionally, the Landlord and Tenant Board (and before the Ontario Rental Housing Tribunal) has ruled that any remedies available to a tenant are limited to a period of one year prior to the application being brought by the Tenant.  This was based on section 32(2) of the Tenant Protection Act [now section 29(2) of the Residential Tenancies Act].  Section 29(2) states “No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.”

All this appears to have changed with the Divisional Court’s decision in Goodman v. Menyhart, [2009] O.J. No. 1602 (Div. Ct.).  

The Tenants in question were long term tenants of the building, having lived there since 1983.  Since 2003 the tenants faced increasing difficulties with respect to maintenance and repairs to their unit, as well as to common areas of the building. The landlords failed to correct many obvious deficiencies and a series of work orders were issued by the municipality. The tenants applied for relief from the Board under the Tenant Protection Act, 1997. The Board concluded that the landlord substantially interfered with the tenants' reasonable enjoyment of their unit as a result of the landlords' continuing breaches of their maintenance obligations and the problems regarding the supply of a vital service, being an adequate supply of heat into the rental unit. The Board also found that the landlords failed to meet their obligations to repair and maintain the rental unit. The tenants were awarded a 25 per cent rental abatement for the 12 months of their tenancy that preceded the date of the order. They were also entitled to an abatement on an ongoing basis until all the deficiencies were remedied.

The tenants appealed the decision to the Divisional court, which found that the Board erred in its interpretation of the Act when it limited the period of the abatement to one year before the granting of the order. The Court noted that the Act imposed a limitation period for bringing an application.  It did not limit the duration of a rent abatement to 12 months before the date of the order. The Court determined that the appropriate period of the abatement was that it would commence in February 2005. This was when the first of many municipal work orders were not complied with by the landlords. This resulted in a further 15 months of rent abatement or $3,575 for a total rent abatement of $6,436.

All too often a Landlord takes the position at hearings that if a tenant doesn’t like the condition of the unit they can, and should, move.  The Board appears to have accepted this argument in this hearing.  The Court found that the Board erred when it considered whether the tenants had an obligation to vacate in mitigation of their claim.

LESSONS LEARNED:

1.    The tenant must make application within one year of day the alleged conduct giving rise to the application occurred. 

2.    Counting a year from an event, such as an illegal entry may not be  difficult.  However, when it is a breach of a maintenance obligation, allegations of harassment or interference with the tenant’s enjoyment of the property, it is often difficult to determine when it started.

3.    The Board can award compensation for a period more than one year prior to the date the application was begun, provided that the breach was in existence at least one year prior to the commencement of the application. As seen in this case, this opens up Landlords to potentially significant claims under the Act.