Defining 'Rent' - Re: LTB
2 (1) In this Act,
- “rent” includes the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit and for any services and facilities and any privilege, accommodation or thing that the landlord provides for the tenant in respect of the occupancy of the rental unit, whether or not a separate charge is made for services and facilities or for the privilege, accommodation or thing, but “rent” does not include,
- (a) an amount paid by a tenant to a landlord to reimburse the landlord for property taxes paid by the landlord with respect to a mobile home or a land lease home owned by a tenant, or
- (b) an amount that a landlord charges a tenant of a rental unit in a care home for care services or meals; (“loyer”)
113 Subject to section 111, the lawful rent for the first rental period for a new tenant under a new tenancy agreement is the rent first charged to the tenant. 2006, c. 17, s. 113.
 The appellants raised the following grounds of appeal:
- a. Did the trial judge err in determining that utilities are a component of “rent” under the Residential Tenancies Act, 2006 (“the Act”)?
- b. Did the trial judge err in determining that the maintenance charges would need to be addressed via an application to the Landlord and Tenant Board for increased rent pursuant to s. 126 of the Residential Tenancies Act, 2006?
- c. Did the trial judge err in determining that the plaintiff/appellant did not have a claim based on unjust enrichment?
- d. Did the trial judge err in determining that the partial payments made by the respondent to the plaintiff/appellant did not extend the limitation period of two years provided for in the Limitations Act, 2002?
- e. Did the trial judge err in failing to award costs to the appellants?
- f. If the appeal is allowed, what is the appropriate remedy?
 The trial judge held that the water and hydro utility charges clearly were rent under s. 2 of the Act respectively. He indicated that he believed the LTB was wrong as a matter of law in taking the position that utilities were not a component of the rent.
 In my respectful view, the trial judge erred in not accepting the terms and finality of the LTB order of September 25, 2014.
 If he had done so, he should have found that he had the authority to decide the issue of those arrears of utilities for water and hydro services costs up to September 25, 2014.
 In this case, the tenancy agreement provides for a 2% prompt payment discount and the $100.00 per month “no pet” discount. The lawful rent is not affected if these discounts meet the prescribed discount rules. [See sections 111(2), 111(2.1), 111(2.2) and 111(3) of the Act.]
The Tenant delivered a cheque to the Landlord on or about November 6, 2009 in the amount of $1,150.00. The Tenant maintains that this cheque was to be applied towards rent. The Landlord acknowledges having received a cheque from the Tenant in November in the amount of $1,150.00. However, he applied these funds towards utilities and not rent. The Tenant maintains that when the cheque was written his intention was that it would go towards rent. He did not respond to the Landlord’s letter other than confirm his disagreement with the allocation of the utilities.
I am not convinced that the Landlord could unilaterally allocate the November payment provided by the Tenant to the Landlord towards the outstanding utilities amount claimed owing. There was no evidence that the Tenant had indicated to the Landlord, whether orally, expressly or by implication that the intended that the payment was to have been applied to anything other than rent. In fact all indications pointed to the contrary. Both the amount of payment and the timing of payment were consistent with the Tenant’s practice of rental payment. The Tenant gave the Landlord cheques in the amount of $1,150.00 consistently on or about the first of the month and each cheque was intended by the Tenant to be used to pay rent for that particular month. As such, it is more reasonable to consider by implication that the Tenant had intended the November payment be applied towards rent.
The November payment provided by the Tenant was to be used towards rent. As a result, the Form N4 is voided because the rent arrears had been paid prior to the termination date listed on the Form N4.
2.DD testified that his monthly rent is $800.00 per month and not $1,000.00. JM confirmed that the monthly rent was $800.00, but that he had a separate agreement with the Tenants requiring them to pay the utilities costs for the rental unit. The Tenants usually paid an additional $200.00 a month for utilities, but this amount is not fixed. DD testified that he was asked to pay extra when the utility usage increased. DD said JM asked him to pay $400.00 for utilities in November 2015. JM agreed that he had asked DD to pay extra because of the increased utility costs.
4. The payments made by the Tenants for utilities would seem to fall within this broad definition of “rent” as they are consideration paid to the Landlord in exchange for a service. However, it is a well-established principle of statutory interpretation that the meaning of legislation must be considered in its total context, having regard to the purpose of the legislation. In this case, the interpretation of the term “rent” must be considered in the context of Part VII of the Act which contains rules governing the amount of rent a landlord can charge and how rent can be lawfully changed. Sections 116-119 of the Act provide that a landlord can only increase the rent once every twelve months after having served the tenant with a notice of rent increase at least 90 days in advance using a prescribed form. Further, for many rental units, the increase cannot be greater than the guideline amount determined by the Minister of Municipal Affairs and Housing. (There are certain exceptions to these restrictions that are not applicable here, such as where the parties agree that the landlord will provide the tenant with a new service or facility or the landlord has obtained a Board order for an above guideline rent increase.)
5. In light of these rules and restrictions governing the calculation of rent, it is apparent that the fluctuating utility charges these Tenants must pay the Landlord cannot meet definition of rent contained in section 2(1) of the Act. The amount the Tenants must pay the Landlord fluctuates based upon the utility usage and the utility rates, but the Act does not permit the Landlord to vary the rent each month in order to reflect these changes in the utility charges owing by the Tenants. Therefore, the lawful monthly rent is the fixed monthly charge of $800.00.