Notice for Renovation or Repair (Compensation)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-08-11
CLNP Page ID: 596
Page Categories: [Personal Use Application (LTB)], [Maintenance Obligations (LTB)], [Interference of Reasonable Enjoyment (LTB)], [Renovation & Demolition (LTB)]
Citation: Notice for Renovation or Repair (Compensation), CLNP 596, retrieved on 2022-08-11
Editor: Sharvey
Last Updated: 2022/02/07


Residential Tenancies Act, 2006, S.O. 2006, c. 17[1]

52 (1) A landlord shall compensate a tenant in an amount equal to three months rent or offer the tenant another rental unit acceptable to the tenant if,

(a) the tenant receives notice of termination of the tenancy for the purposes of demolition or conversion to non-residential use;
(b) the residential complex in which the rental unit is located contains at least five residential units; and
(c) in the case of a demolition, it was not ordered to be carried out under the authority of any other Act. 2006, c. 17, s. 52.
(2) A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if,
(a) the tenant receives notice of termination of the tenancy for the purposes of demolition or conversion to non-residential use;
(b) the notice of termination is given on or after the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent;
(c) the residential complex in which the rental unit is located contains fewer than five residential units; and
(d) in the case of a demolition, it was not ordered to be carried out under the authority of any other Act. 2020, c. 16, Sched. 4, s. 6.

53 (1) A tenant who receives notice of termination of a tenancy for the purpose of repairs or renovations may, in accordance with this section, have a right of first refusal to occupy the rental unit as a tenant when the repairs or renovations are completed.

(2) A tenant who wishes to have a right of first refusal shall give the landlord notice in writing before vacating the rental unit.
(3) A tenant who exercises a right of first refusal may reoccupy the rental unit at a rent that is no more than what the landlord could have lawfully charged if there had been no interruption in the tenant’s tenancy.
(4) It is a condition of the tenant’s right of first refusal that the tenant inform the landlord in writing of any change of address.

73 The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 50 unless it is satisfied that,

(a) the landlord intends in good faith to carry out the activity on which the notice of termination was based; and
(b) the landlord has,
(i) obtained all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, or
(ii) has taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, if it is not possible to obtain the permits or other authority until the rental unit is vacant. 2006, c. 17, s. 73.

Compensation under s. 48.1, 52, 54 or 55

73.1 (1) If the landlord compensated the tenant under section 48.1, 52, 54 or 55, as the case may be, in connection with a notice of termination under section 48 or 50 and the Board refuses to grant an application under section 69 for an order terminating the tenancy and evicting the tenant based on the notice, the Board may order that the tenant pay back the compensation to the landlord. 2017, c. 13, s. 14.

[1]

Marineland of Canada Inc. v. Olsen, 2011 ONSC 6522 (CanLII)[2]

[16] The landlord also raised the issue of set-off on the request to review. The Board member questioned whether the Board had jurisdiction to make such an order and then concluded that this was an issue for the enforcement stage.


[17] In my view, this was an error in law and an unreasonable conclusion. The Board was being asked to award compensation to the tenants for amounts that the landlord improperly retained. While the tenants were entitled to $3,000.00 in compensation because of the N13 Notice, the landlord was owed more than $3,000.00 by them at the time of their application. The amount owing for arrears of rent should have been taken into consideration in determining the amount of compensation owing. Had that been done, the Board would have had to conclude that the tenants were owed nothing in compensation at the time of the application because of the set-off.


[18] This conclusion is in keeping with the purposes of the Act set out in s. 1, which include “to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.” I note that counsel for Marineland acknowledged that should it seek to pursue any remaining amounts owing from the tenants, it would be required to set off the $3,000.00 of compensation that it owed to the tenants.

[2]

CET-68761-17 (Re), 2017 CanLII 70288 (ON LTB)[3]

14. The Tenant testified that there are nine units in the residential complex. She submitted a real estate listing from Express Realty Inc. which describes the complex as waterfront townhomes and vacation homes. The listing indicates that there are nine units for sale. She also said that six of the units were occupied by tenants.

15. The crux of the issue is whether there are at least five residential units in the residential complex to bring the Tenant’s claim within the ambit of section 52 of the Act.

16. I first note that there do not have to be at least five “rental units” covered by the Act in order for section 52 to apply. Section 52 uses the term “residential unit” as opposed to “rental unit”. The term “residential” unit is not defined under the Act. However, that term must include not only rental units that are covered by the Act but also other units not covered by the Act that are occupied for residential purposes, or intended to be occupied for residential purposes.

17. I am satisfied that the residential complex contains at least five residential units, and that pursuant to section 3 of the Act, this Act applies to this tenancy. The Tenant submitted a copy of the real estate listing for the complex. This listing advertises the complex as a vacation home. There are nine units listed. The real estate listing indicates that all nine units are available for sale for residential occupation purposes. The fact that some of the units are currently vacant does not mean that are not residential units

18. The Landlord did not provide sufficient evidence to support a determination that use of some of the units for Airbnb purposes removes those units from the meaning of residential units. Despite the zoning of the complex, the Landlord does not dispute that units were rented for residential occupation and has advertised the complex for sale for the purpose of residential occupation.

19. The nine units in question are contained in related groups of buildings in close proximity to each other, meaning they satisfy the definition of residential complex is as set out in subsection 2(1) (a) of the Act.

20. Therefore, the Tenant is entitled to compensation for termination of the tenancy due to conversion of the rental unit pursuant to section 52 of the Act.

[3]

Morguard Residential v Asboth, 2017 ONSC 387 (CanLII)[4]

[39] The appellants submit that the Board erred in law by failing to apply s. 37(5) of the Act and failing to find that the termination provisions in the Colonnade tenancy agreements were void as contrary to that section. In addition, the appellants argue that in accordance with s. 4(1) of the Act, any contractual provision that is inconsistent with the Act is void.

[41] I am unable to conclude that the member or the reviewing member erred in law in their approach to this issue. Section 37(5) is designed to protect the security of tenure of tenants by ensuring that tenants cannot be induced to contract out of their rights at the time when they enter into a tenancy agreement. Specifically, having regard to the fact that landlords and tenants are often not in an equal bargaining position when leases are negotiated, s. 37(5) precludes landlords from extracting tenancy termination agreements at the time leases are signed. (See Clandfield v. Queen’s University (Apartment and Housing Services) (2001), 2001 CanLII 4969 (ON CA), 54 O.R. (3d) 475, 200 D.L.R. (4th) 475 (C.A.)[5], which dealt with an identical provision in the predecessor Tenant Protection Act, 1997, S.O. 1997, c. 24.[6])

[42] But this case is quite different. The landlord and tenant relationship between the parties in this case pre-existed the tenancy agreement. It was suspended by the redevelopment of the Heathview, but the tenants had the right to return to the premises upon completion and continue the relationship. The landlord gratuitously offered to continue the landlord and tenant relationship in alternative accommodation at the Colonnade in the interim, at a reduced rent, and the tenants accepted the offer. The agreement to terminate the temporary tenancy when the redevelopment was complete was reached as part of this overall agreement, and not separately at the time the Colonnade tenancy agreement was entered into or as a condition of entering into it. The Colonnade tenancy agreement was not a stand-alone agreement. It cannot be interpreted in isolation from the overall relationship of the parties.

[4] [5] [6]


SWT-00676-17 (Re), 2017 CanLII 60233 (ON LTB)[7]

6. The primary issues under this part of the Tenant’s applications relate to the duration of the remediation and the lawfulness of the means used by W.C.S. to obtain vacant possession of the rental unit to complete the mould remediation.

7. W.Z., E.L. and D.D. are Property Standards Officers employed by the City of Cambridge (the ‘City’). On April 9, 2015, E.L. issued an order for the Landlords to repair the ceiling in the rental unit damaged by the leak in the roof as well as other parts of the rental unit affected by the leaks by a deadline of April 29, 2015. W.C.S. appealed the City’s finding that it failed to comply with this order in Provincial Offences Court. While that dispute was apparently resolved through a guilty plea to an unknown count, given that the precise facts of that resolution were not disclosed, I can make no finding with respect to this issue.

46. The Tenant took the position that the Landlords should have served her with an N13 Notice of termination (an ‘N13 Notice’), pursuant to subsection 50(1) of the Act and, in requiring her to vacate the rental unit in the absence of this notice, they harassed her and substantially interfered with her reasonable enjoyment of the rental unit. Subsection 50(1) of the Act provides as follows:

50. (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,
(a) demolish it;
(b) convert it to use for a purpose other than residential premises; or
(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.

47. However, as the Landlords had no intention of terminating the tenancy, I find that there was no need or reason to serve the Tenant with a notice for this purpose. As a result, neither the compensation provisions at section 54 of the Act nor the requirements relating to building permits in section 73 of the Act are applicable. While the Tenant mentioned in her applications that W.S.C. did not disclose any building permit to her, she offered no evidence to prove that such a permit would be required.

48. While the Tenant’s Legal Representative suggested that the Act does not account for entries to the rental unit for extensive repairs where termination is not sought by the Landlord, I find that paragraph 1 of subsection 27(1) of the Act governs entry for the purpose of effecting repairs:

27. (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
1. To carry out a repair or replacement or do work in the rental unit.

49. As the Notice of Entry served to the Tenant on February 1, 2017 included the date and time of entry and the purpose of the proposed entry, I find that the Notice complies with the requirements of subsection 27(3) of the Act. While the completion time for the work was not certain at the time of service, given the extensive scope of the remediation, I do not find that this ambiguity invalidates the notice. Subsection 27(3) of the Act does not require a landlord to specify the duration of the entry or the work contemplated, only the date and time that the entry is to commence. The Notice did however advise that the work would likely take at least three days to complete. It was also not argued that the Tenant was in anyway misled with respect to the scope of the remediation or that it would likely take multiple days to complete.

50. As a result, I do not find that W.C.S. illegally entered the rental unit or that its failure to serve an N13 Notice to the Tenant amounted to substantial interference with her reasonable enjoyment of the rental unit or any other breach of the Act.

[7]

References

  1. 1.0 1.1 Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17#BK72>, retrieved on 2021-07-08
  2. 2.0 2.1 Marineland of Canada Inc. v. Olsen, 2011 ONSC 6522 (CanLII), <http://canlii.ca/t/fpdnp>, retrieved on 2020-06-18
  3. 3.0 3.1 CET-68761-17 (Re), 2017 CanLII 70288 (ON LTB), <http://canlii.ca/t/hmmxr>, retrieved on 2020-06-18
  4. 4.0 4.1 Morguard Residential v Asboth, 2017 ONSC 387 (CanLII), <http://canlii.ca/t/gx86n>, retrieved on 2020-06-18
  5. 5.0 5.1 Clandfield v. Apartment and Housing Services Queen's University, 2001 CanLII 4969 (ON CA), <http://canlii.ca/t/1fbvm>, retrieved on 2020-06-18
  6. 6.0 6.1 Tenant Protection Act, 1997, SO 1997, c 24, <http://canlii.ca/t/1jz9> retrieved on 2020-06-18
  7. 7.0 7.1 SWT-00676-17 (Re), 2017 CanLII 60233 (ON LTB), <http://canlii.ca/t/h5z0z>, retrieved on 2020-07-29