Estoppel (LTB)

From Riverview Legal Services


Estoppel (General)

TNT-92461-17 (Re), 2017 CanLII 142692 (ON LTB)

27. The Landlord argues that the Tenants waived their right to have repairs done, and are barred by promissory estoppel from seeking a remedy for the disrepair.

28. Although not argued at the hearing, I have since become aware of Pasternak v. 3011650 Nova Scotia Limited, 2014 ONSC 1012 (CanLII) (Pasternak). In that case, the Divisional Court held that estoppel cannot override subsection 3(1) of the RTA, which provides that the RTA applies despite any agreement or waiver to the contrary. In other words, even if the Tenants had waived their right to have repairs done or to seek a rent abatement for disrepair, the waiver would be void.

29. Since Pasternak is binding on me, the Landlord’s estoppel defense cannot succeed.

TNL-38406-12 (Re), 2013 CanLII 6309 (ON LTB)

56. The doctrine of res judicata (or issue estoppel) is intended to bring finality to litigation, so that parties may not re-litigate matters that have already been decided by a court of competent jurisdiction.

57. The key principles governing the doctrine of res judicata as decided by the courts of Canada are:

a) The question to be decided in the second proceeding must be the same question that has been decided in the first proceeding.
b) The question decided in the first proceeding must be fundamental to the decision in the first proceeding, not collateral to the decision.
c) The same parties, and their privies, cannot relitigate the same question in a second proceeding.
d) The decision in the first proceeding must be a final decision on the question.
e) The decision in the first proceeding must be a judicial decision on the question
f) The decision-making forum in the first proceeding must have the jurisdiction to decide the question.

58. It was the Tenant’s position at the hearing, that because the criminal charges related to the allegations of assault, threatening and injury to an animal had been disposed of, the Board was estopped, by the doctrine of res judicata, from considering those issues in the Landlord’s application to terminate the tenancy.

59. While the criminal charges were disposed of on January 21, 2013 by the Crown withdrawing the charges, there was no judicial decision on the question of whether or not the Tenant had committed the illegal acts with which he was charged.

60. Consequently one of the basic requirements for establishing res judicata has not been met because there has been no judicial decision on the question by a court of competent jurisdiction.

61. The Tenant’s plea of res judicata must therefore fail.

Issue Estoppel

O’Shanter Development v. Bernstein, 2018 ONSC 557 (CanLII)

[12] The Board identified that the central issue to be determined in the case was whether the Landlord’s notices of rent increase comply with the requirements of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA). The Board noted that the Landlord’s representative agreed at the hearing that, if the Board determines that the Landlord’s notices of rent increase are defective, the Landlord’s applications to terminate the tenancy and evict the Tenant for non-payment of rent must be dismissed.

[13] A primary issue of estoppel was raised at the hearing by the Landlord. In his submissions to the Board at the hearing, counsel for the Landlord, stated the following, in part:

So clearly, if the tenants sought to challenge the validity of the rents charged, the time to do it was in the context of the AGI, if you accept the reasoning in Mascan and Ponzi and then if you apply the principles in Mascan and Ponzi, it’s my submission that it would be an abuse of process to allow the tenants after having consented to the increases that were set out in the Notices of Rent Increase subject to adjustment to allow them now to challenge the validity of those Notices of Rent Increase, and those rent increases were essentially established as a result of the Board’s processes, and the Board’s reliance on the rents that were set out in the applications filed with the Board.

[14] In response, the Tenant submitted that estoppel was not available in this case and in support of this position referred the Board to the decision in Price v. Turnbull's Grove Inc., 2007 ONCA 408, (2007), O.R. (3d) 641, which held that a rent increase that is void under the Act is of no force and effect. The Court stated at para. 37, “It is as if the increase never occurred.”

Issue 3: Did the Board make an unreasonable determination that the NORIs were void on the basis that the content of the prepaid rent attachment to the form was “misleading” or “confusing”?
The Landlord argues that the Board imported a subjective inquiry into its consideration of s.212 of the RTA and s. 84 of the Legislation Act, and as such the Board’s decision is unreasonable. However, the Board dealt with the issue relating to substantial compliance at paragraphs 12 to 15 of the decision. The Board stated:
The Landlord’s representative submitted that the Landlord’s addendum does not render the Landlord’s NORI void, because the NORI substantially complies with the Act’s requirements. Section 212 of the Act states that forms that substantially comply with the Act’s requirements “respecting the contents of forms, notices or documents is sufficient.”
The parties did not submit at the hearing case law from the Divisional Court, or from another binding authority, on the issue of substantial compliance. The Board, however, considered the issue of substantial compliance with its forms in TSL-03635, issued on September 24, 2007. In that decision, the Board quoted from TNL-52825-RV, in which the Board held that the landlord who had altered a NORI “should be held to an even higher standard to correctly state the law when he appends an addendum to an ORHT-approved form and uses the same font and format used by the ORHT.” In TNL-52825-RV, the Board determined that the addendum the landlord made to a NORI failed to correctly state the law. The Board concluded that the landlord’s NORI was void because of the addendum.
In TSL-052280, issued on September 19, 2003, the Ontario Rental Housing Tribunal (as the Board was then called) found that a misleading addendum to the landlord’s NORI rendered the NORI void. The Tribunal in that case found that information in the landlord’s addendum “would mislead most tenants”.
The principle that emerges from the Board’s decisions on substantial compliance with the Act’s requirements for forms and other documents, is that landlords must exercise great care when adding an addendum to, or otherwise altering, a Board approved form. Any information that does not comply with the Act may be found to be misleading, and may render the altered form invalid.

[51] I am further of the view that on the facts of this case the Board should have exercised its discretion to apply issue estoppel. Contrary to the Board’s statement that “prohibiting the Tenant from raising the validity of the Landlord’s NORIs at the hearing could lead to an absurd result, if the Board were to uphold and legitimize an invalid rent increase”, the opposite is true. The rent increase was not invalid. It was implemented by the Orders of the Board. The absurd result arises in permitting the Tenant to challenge the validity of the NORIs in circumstances where she has agreed to Orders of the Board implementing the rent increase.

[59] For the above reasons therefore, based on the facts of this case, I conclude that the Board erred in failing to apply estoppel to the Tenant’s defence to the Landlord’s application that the rent increases were void based on defective NORIs.

TSL-49814-14 (Re), 2015 CanLII 15596 (ON LTB)

14. The Tenant submitted that the Board could not consider the Landlord’s application because of res judicata. It was the Tenant’s position that his failure to pay the rent from December, 2012 to June, 2013 was the subject of a previous rent arrears application for which the Landlord had obtained an order and as such the Landlord is estopped from seeking to terminate his tenancy on the same grounds.

15. I would not agree. The Tenant’s position assumes that the grounds cited for the previous application is the same thing as the issue in the previous application. For the doctrines of res judicata or some other form of issue estoppel to apply the same issue must have been litigated. In the Landlord’s application that was filed in 2013, the issue was whether or not the Tenant was in arrears of rent. The issue in this application is whether or not the Tenant has been persistently late in paying his rent. Therefore, I do not believe the doctrine of issue estoppel or res judicata apply to bar the Landlord from making this application. The Tenant’s request that the N8 notice be found to be defective is denied.

TSL-87859-17 (Re), 2018 CanLII 121025 (ON LTB)

21. The HRTO order makes explicit findings about this issue and part of the remedy awarded is in relation to this issue. This issue is therefore barred by issue estoppel, which is a branch of the doctrine of res judicata.

22. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. The principles behind the doctrine of issue estoppel are that litigation should have finality (it should not be allowed to continue indefinitely), inconsistent results should be avoided, judicial resources should not be wasted on duplicative claims, and parties should not be permitted to harass one another with duplicative claims.

23. The criteria for issue estoppel, as per Richard A. Feldman in his Residential Tenancies, 9th ed. (Toronto: Carswell, 2009) at p.90, are:

i) the same question (issue) currently being advanced has already been decided in an earlier proceeding;
ii) that earlier decision was final; and
iii) the parties (or their privies) are the same now as in that earlier proceeding.

22. The criteria for issue estoppel are met here.

TST-45022-13 (Re), 2018 CanLII 141683 (ON LTB)

7. In order TST-44900-13, issued on February 26, 2018, I found that the Landlord’s actions in serving a notice of entry soon before a hearing scheduled for November 16, 2012 did not substantially interfere with the Tenant’s reasonable enjoyment of the premises. I find that the issue of the service of a notice of hearing soon before a Board hearing is scheduled is barred by the doctrine of issue estoppel. The Tenant has raised the same factual allegations as she did in application TST-44900-13, an order was issued that resolved these allegations, and that order has not been successfully reviewed.

11. In order TST-44902-13, issued on April 9, 2018, I found the issue of hiding information that the rental unit violates municipal standards was barred by the doctrine of issue estoppel. For the same reasons as I gave in that order, I find again that the issue of hiding information that the rental unit violates municipal standards is barred by the doctrine of issue estoppel.

TST-74594-16-RV (Re), 2016 CanLII 88771 (ON LTB)

18. At the hearing the Tenant submitted that his allegations in this application, with respect to the rent receipts, are essentially the same as the allegations he raised at the hearing of TST-64205-15. The Tenant submitted that the rent receipts that are the subject of the current application were issued for different months than the rent receipt at issue in application TST-64205-15 and so this issue has not been decided with respect to the newer rent receipts.

19. At the hearing I explained to the Tenant that it appears that the rent receipt allegation in this application may be barred by the doctrines of issue estoppel and cause of action estoppel.

20. Issue estoppel is a branch of res judicata. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. It appears that the essence of the rent receipt allegation in the current application was adjudicated in order TST-64205-15.

21. It appears that cause of action estoppel also applies here, to the extent that the Tenant’s allegation in the current application is with respect to rent receipts that are different from the one at issue in application TST-64205-15. The Tenant should have raised the issue with respect to the rent receipts provided after the June 2016 receipt as an amendment to application TST-64205-15.

22. When the Tenant was asked for his submissions on whether the doctrines of cause of action estoppel and issue estoppel apply to the allegation about rent receipts in this application, the Tenant requested that this allegation be withdrawn. I granted the Tenant’s request. This allegation is therefore withdrawn, with prejudice, because the Tenant requested that this part of the application be withdrawn after hearing about the cause of action estoppel and issue estoppel issues. In other words, the Tenant’s request to withdraw this part of the application is a concession that this part of the application is barred by cause of action estoppel and issue estoppel.

TSL-77468-16-RV (Re), 2016 CanLII 88717 (ON LTB)

10. The Tenants’ first two issues were adjudicated in a previous proceeding by order TST-78343-16/TST-78380-16. The Tenants are estopped from litigating these issues as per the doctrine of issue estoppel, which is a branch of res judicata. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. The principles behind the doctrine of issue estoppel are that litigation should have finality (it should not be allowed to continue indefinitely), inconsistent results should be avoided, judicial resources should not be wasted on duplicative claims, and parties should not be permitted to harass one another with duplicative claims.

TNL-68456-15 (Re), 2016 CanLII 69277 (ON LTB)

4. The Tenant’s representative submitted that estoppel is not available in this case, because the Court of Appeal for Ontario determined in Price v. Turnbull’s Grove Inc., 2007 ONCA 408 (CanLII), (2007) O.J. No. 2177 (C.A.) that a rent increase that is void under the Act is of no force or effect. As the Court of Appeal writes in paragraph 37: “It is as if the increase never occurred.” In such cases, the Tenant’s representative submitted that it would be inappropriate to apply the doctrine of estoppel.

5. The Board, of course, is required to follow the Court of Appeal’s decision and reasons in Price v. Turnbull’s Grove. That is, if the rent increases the Landlord collected from the Tenant are void because the Landlord’s NORIs do not comply with the Act’s requirements, those rent increases must be determined to be a nullity.

6. Accordingly, I agree with the Tenant’s representative that, where a matter is a nullity, the remedy of estoppel is not available.

NOT-07689-12 (Re), 2013 CanLII 41381 (ON LTB)

49. Estoppel by laches is defined in Black’s Law Dictionary as: a failure to do something which should be done or to claim or enforce a right at a proper time. To create “estoppel by laches” the party sought to be estopped must with knowledge of the transaction have done something to mislead the other party to his prejudice.

TEL-91055-18 (Re), 2019 CanLII 87605 (ON LTB)

23. Fourth and finally, the bed bug infestation was the subject of a prior application by the Tenants to the Board that is contained in Board file TET-55453-15. That application was resolved by way of a mediated agreement. The principle of issue estoppel means that a party cannot file an action or claim against someone for the same thing twice. As the dispute with respect to the bed bug infestation was resolved by mediation in the previous application, it is not open to the Tenants to raise the same issue again in a second application.

Cause of Action Estoppel

TST-74594-16-RV (Re), 2016 CanLII 88771 (ON LTB)

14. The Tenant filed application TST-67983-15 on November 3, 2015. In that application the Tenant alleged that the Landlord illegally entered the rental unit on November 6, 2014. At the time that the Tenant filed application TST-67983-15, he was aware of the alleged illegal entry of June 8, 2015, which is the allegation in the current application. At the hearing, I explained that it appears that the illegal entry allegation in this application would be barred by the doctrine of cause of action estoppel, which is a branch of res judicata.Cause of action estoppel precludes a litigant from asserting a claim or a defence that he or she had an opportunity of asserting and should have asserted in past proceedings.

20. Issue estoppel is a branch of res judicata. Issue estoppel precludes a litigant from raising issues in a proceeding that were already adjudicated in a previous proceeding. It appears that the essence of the rent receipt allegation in the current application was adjudicated in order TST-64205-15.

TSL-69672-15 (Re), 2016 CanLII 39831 (ON LTB)

16. A proprietary estoppel claim may be established through evidence that one party made a representation, whether communicated expressly or through conduct, to another and that the other party relied on that representation to his or her detriment: Ryan v. Moore, 2005 SCC 38 (CanLII), (2005) 2 S.C.R. 53. Upon such facts being established, the doctrine of estoppel may be applied to prevent a party, in this case the Landlord, from resiling from its representation to prevent unfairness to the Tenant.

21. It appears that cause of action estoppel also applies here, to the extent that the Tenant’s allegation in the current application is with respect to rent receipts that are different from the one at issue in application TST-64205-15. The Tenant should have raised the issue with respect to the rent receipts provided after the June 2016 receipt as an amendment to application TST-64205-15. The hearing that gave rise to order TST-64205-15 was held in March 2016 and in May 2016. At this time the Tenant was aware of any issues he had with rent receipts issued for the months of July 2015 to March 2016.


TNT-31530-12 (Re), 2012 CanLII 36410 (ON LTB)

Determinations:

1. The tenancy was terminated on December 31, 2011 by order TNL-18968-11 issued July 15, 2011. The Tenant then filed application TNT-20500-11 which was resolved in order TNT-20500-11 issued January 27, 2012. On May 11, 2012 she requested an extension of time to file a request to review TNT-20500-11 issued January 27, 2012, the request was denied on the same date. On May 9, 2012 she filed this application.

2. Where a given matter becomes a subject of litigation the law requires the parties to bring forward their whole case. This application is directly related to TNT-20500-11 and the Tenant should have exercised reasonable diligence and combined all issues relating to the tenancy in that application. By not doing so the doctrine of cause of action estoppel now bars the Board from hearing them.

3. It is noted that some of the issues arose after the tenancy was terminated on December 31, 2012 and obviously the Board has no jurisdiction to adjudicate anything that occurred after the Tenant vacated the rental unit.


Estoppel by Laches

NOT-07689-12 (Re), 2013 CanLII 41381 (ON LTB)

48. The Landlord submits the Court left open the possibility that, by laches or estoppel a tenant could be prevented from complaining years later of a rent increase not challenged. In particular the Landlord refers to a decision of this Board, SWT-00924. Member Usprich states: “If I am wrong regarding the statutory limitation period applying in this case, I still believe the Tenant cannot make a full recovery. As indicated in Price the Court left open the possibility of a meritorious laches or estoppel argument.”

49. Estoppel by laches is defined in Black’s Law Dictionary as: a failure to do something which should be done or to claim or enforce a right at a proper time. To create “estoppel by laches” the party sought to be estopped must with knowledge of the transaction have done something to mislead the other party to his prejudice.


52. The Tenant’s legal representative referred to the case of 1086891 Ontario Inc. v. Barber 2007 CanLII 18734 (ON SCDC), (2007) O.J. No. 2046 the Divisional Court.

“Estoppel cannot override statute…. There is no need for the subsection to make specific reference to the doctrine of estoppel. In any event it would be illogical to conclude that, although the [Tenant Protection Act] prohibits in very clear terms any agreement to the contrary or waiver of rights, it leaves open to the parties to accomplish the same thing through the doctrine of estoppel. In any event, the Tribunal does not have the jurisdiction to apply the principle of estoppel in the absence of specific statutory authority.”

Conduct Estoppel

TST-55961-14-RV (Re), 2015 CanLII 69364 (ON LTB)

4. The Landlord’s position was that the Tenant never had a right to park on the premises, as the written lease did not set out the Tenant’s right to park on the premises.

5. The Tenant’s tenancy began on July 1, 2007. At that time the landlord was not the current Landlord. The Tenant’s evidence was that there was a previous tenant, EO, living in the rental unit. EO wanted to break his lease, and as such, he found the current Tenant as his replacement. The former landlord wanted the Tenant to pay more rent than the previous tenant EO. The Tenant agreed, provided he would have parking on the premises. The parties agreed to a total price that was $70.00 a month more than the previous tenant EO was paying. The Tenant submitted that $50.00 of this increased amount was for the included parking space. The parties then signed a new lease for the increased amount of rent; however the lease does not set out the Tenant’s right to a parking spot. The Tenant submitted that the former landlord made a note on his copy of the lease regarding the parking.

6. The Tenant has been parking his vehicles, personal or business, on the premises until 2013.