LTB Order LTB-T-079711-22

Order under Subsection 135 Residential Tenancies Act, 2006 Citation: D. v M., 2023 ONLTB 66514 2023 ONLTB 66514 (CanLII) Date: 2023-10-16 File Number: LTB-T-079711-22 In the matter of: (M.) 322 Lakeshore Road West Mississauga ON L5H1G8 Tenants Between: D. D. P. A. R. A. J. H. S. M. R. M. M. T. A. L. S. M. T. is a M. U. application, B. by D. D., P. A., R. A., J. H., S. M., R. M. A. M. T. (the 'Tenants') against the L. of 322 Lakeshore Road West, S. M. (the 'L.'). In their application, the Tenants claim that the L. collected or retained money illegally. The Tenants allege that the L. violated section 116 of the Residential Tenancies Act, 2006 (the ‘Act’) by increasing the Tenants’ monthly rent without providing the required notice. The L. opposed T. application. T. application was heard by videoconference on July 25, 2023. The L.’s Representative, Jordan Nieuwhof, A. the Tenant attended the hearing. The L.’s Agent, Cindi Ross, attended the hearing as a witness for the L.. Determinations: Preliminary Matter 1. At the start of the hearing, the L. raised a preliminary matter about whether or not T. application can proceed. The L. submitted that the application was not B. within the one-year limitations period contemplated by Section 135(4), A., on that basis should be dismissed. Order Page 1 of 5  File Number: LTB-T-079711-22 2. The L. submitted that beginning on April 1, 2020, the Tenants each paid in accordance with the Notice of Rental Increase (NORI) A. did not file an application by April 1, 2021. The L. submitted that, even if NORI was not served in accordance with the Act, section 135.1 would work to deem the increase in the NORI not to be void. 2023 ONLTB 66514 (CanLII) 3. On March 20, 2020, the Government of Ontario made an Emergency Order under the Emergency Management A. Civil Protection Act, suspending limitation periods A. procedural time periods relevant to tribunal proceedings. The suspension was retroactive to March 16, 2020 (O.Reg 73/20). 4. Suspended limitation periods A. procedural timelines resumed on September 14, 2020 (O.Reg. 457/20). 5. Section 6 of O.Reg 73/20 states: For greater certainty, any limitation period or period of time within which a step must be taken in a proceeding that is temporarily suspended under T. Regulation resumes running on the date on which the temporary suspension ends A. the temporary suspension period shall not be counted. 6. In T. case, the increase to the Tenants’ rent happened during the suspension period. The original deadline for filing T1 would have been a year from when the Tenants began paying the increased amount (on or before April 1, 2021). However, the Tenants did not file their application until August 9, 2021. 7. The L. states that section 56 of O.Reg. 516/06 prohibits the Board from extending or shortening time to file an application. In relying on T., the L. appears to suggest that the Government of Ontario’s Emergency Order does not apply to the timelines for applications B. before the Board under the Act. 8. The L. appears to rely on the language in section 2 A. 2.0.1 of O.Reg 73/20, specifically alluding to the discretion of the tribunal, to suggest that since the Regulations under the Act were not changed once O.Reg 73/20 was implemented, the suspension of limitation period does not apply to applications before the Board. 9. The Tenants confirmed that they paid the rent increase but that it was paid under protest. The Tenants submitted that they always intended to challenge the rent increase A. told the L. T.. The Tenants indicated that on one occasion, they tried to go into a L. A. Tenant Board office A. file the application in person, but were unable to do so because the office was closed. 10. There was a clear purpose to the suspension of the limitation periods. The justice system in Ontario was faced with COVID-19’s unprecedented impact. The Province responded by implementing a suspension of limitation periods A. time periods in proceedings to ensure that people would not experience legal consequences if the original time requirements of their case were not met as a result of the pandemic. Order Page 2 of 5  File Number: LTB-T-079711-22 11. The Tenants fall within T. category of people. The Tenants were clear of their intention to file an application A. paid rent under protests. Their ability to file their application was impacted by COVID-19’s unprecedented impact on the justice system, which included the closure of the L. A. Tenant Board’s offices. 2023 ONLTB 66514 (CanLII) 12. On T. preliminary issue, I find that the Tenants’ application was filed in accordance with the Act. I find that the limitation periods under the Act were suspended as a result of O.Reg. 73/20. The suspension applied unless a person mentioned in section 2.0.1 of O. Reg. 7/20 deemed otherwise, which did not occur. 13. I do not find that 135.1 impacts the Tenants’ ability to bring T. application in light of the above. I find that to read it otherwise would contravene the application of the suspension of the limitation period. 14. Therefore, I will turn to the merits of the Tenants’ application. Notices of Rent Increase 15. As explained below, the Tenants have not proven the allegations contained in the application on a balance of probabilities. Therefore, the application is dismissed. i. Evidence at Hearing 16. The Tenants state that each of them received a NORI dated January 2, 2020, with an effective date of April 1, 2020. The Tenants state that NORI was left in their respective mailbox, all of which are located at the front of the building. 17. The Tenants A. the L. agree that if the NORI was delivered on January 2, 2020 to the Tenants’ mailboxes then the NORI is valid, A. the increase outlined therein would be effective on April 1, 2020. 18. The dispute between the Tenants A. the L. relate to the date of delivery. It turns on the difference of one day. The Tenants state that they discovered the NORI on January 3, 2020 or on a later date, A. thus the L. failed to provide the Tenants with 90 days notice prior the effective date of the rental increase. 19. The L. states that the NORI was delivered was January 2, 2020, which is also the date that the L.’s Agent signed the NORI. 20. The Tenants indicated that they had a regular practice of checking their mail daily, most times at the end of the day. The Tenants submit that they would have discovered the NORI on January 2, 2020, if the L. placed it in their mailboxes on that day. Since they did not discover the NORI on January 2, 2020 but on January 3, 2020, the Tenants submit that the NORIs must have been placed in their mailboxes on January 3, 2020 A. not January 2, 2020. 21. The Tenants state that on January 11, 2020, they wrote to the L. to tell them that each had received a NORI on January 3, 2020. Prior to T. date, the Tenants also asked Order Page 3 of 5  File Number: LTB-T-079711-22 for a copy of the video surveillance for January 2 A. January 3, 2020, which they suspected would show that the NORI was not delivered on January 2, but instead on January 3. 22. The L.’s Agent stated that she was the one who attended the apartment building on 2023 ONLTB 66514 (CanLII) January 2, 2020 A. delivered the NORIs to the Tenants’ mailboxes. She testified that she did T. on the same day that she dated the NORIs. In support of her statement, the L.’s Agent provided a copy of her 407 Transponder record that shows a trip on January 2, 2020 that starts at Hwy 404 A. goes to Hwy 427 (A. a corresponding return trip), suggesting that T. is the route that she travels to get to the apartment building, which is located on Lakeshore. T. information suggests that at some point between 11:45 a.m. A. 6:17 p.m., the L.’s Agent was at the apartment building. The record of the 407 Transponder is Exhibit 1. 23. The L.’s Agent also produced a page of her agenda book showing January 1-4. The L.’s Agent testified that on January 1, 2020, she wrote the NORIs but dated them on January 2, 2020, the date that she intended to deliver the NORIs to the Tenants. On the agenda page at 4:00 p.m. on January 1, 2020, the L.’s Agent lists “Rent Increases x8” A. on January 2, 2020, “rent run.” The agenda page is marked as Exhibit 2. 24. The L.’s Agent’s testimony is consistent with both Exhibit 1 A. Exhibit 2. 25. The L.’s Agent was asked why the L. did not produce the surveillance videos for January 2 A. January 3, 2020. These videos would have shown her attendance at the apartment building A. near the mailboxes. The L.’s Agent stated that these videos are for safety purposes only, but had she known that the Tenants were going to bring T. application, she would have preserved the video, suggesting that it would have supported the L.’s defence to the application. ii. Analysis 26. Section 116 (1) states: A L. shall not increase the rent charged to a tenant for a rental U. without first giving at least 90 days written notice of the L.’s intention to do so. 27. Notice may be given in a number of ways, including by leaving the notice in the tenant’s mailbox or if there is not mailbox, by leaving it at a place where mail is ordinarily delivered to the tenant. If service is made in T. way, it is considered received on the day that the L. leaves the notice in the mailbox. 28. When a notice has to be made within a specific number of days, the days are counted by excluding the first day A. including the last day (see 1.13 of the L. A. Tenant Board’s Rules A. Procedure). 29. In T. case, the only issue in dispute is whether or not the L. delivered the NORI to the Tenants within the timeline outlined in Section 116. If the L. delivered the NORI on January 2, 2020, then the increase in rent is valid – T. is 90 days. I am counting the Order Page 4 of 5  File Number: LTB-T-079711-22 dates from January 3, 2020 to April 1, 2020, in accordance with the Board’s Rules A. Procedures. If the L. delivered the NORI on January 3, 2020, then the increase is void – T. is 89 days. In T., I am counting the dates from January 4, 2020 to April 1, 2020, in accordance with the Board’s Rules A. Procedures. 2023 ONLTB 66514 (CanLII) 30. I have considered the evidence before me at the hearing, which I summarized in the previous section of T. order. The Tenants are suggesting that, since it is their pattern to check their mail daily, A. since they did not see the NORI in their mail on January 2, 2020, then T. is proof that the L. did not serve the NORI on January 2, 2020, but rather the following day when the Tenants discovered the NORI in their mailboxes. 31. The L.’s Agent, the one who actually delivered the NORIs, testified to her recollection of what she was doing on January 1 A. January 2, 2020. Her oral evidence was supported by both her 407 Transaction records A. contemporaneous notes in her agenda. 32. Although I find the Tenants credible, their evidence is circumstantial. It could have been that on the day that the L.’s Agent delivered the NORIs, the Tenants may have checked their mail before it was delivered. 33. The L.’s Agent’s evidence was supported by contemporaneous notes A. records, which supported her testimony. In T. way, I favour the L.’s Agent’s evidence because it could be verified against documents generated by a third party A. also notes made in her agenda. 34. In summary, the L. did not collect rent in excess of the amount allowed by the Act. On a balance of probabilities, I find that the L.’s Agent delivered the NORIs to the Tenants on January 2, 2020, providing the Tenants with the appropriate notice under the Act. It is ordered that: 35. The Tenants’ application is dismissed. October 16, 2023 Date Issued Julia Toso Member, L. A. Tenant Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about T. order, call 416-645-8080 or toll free at 1-888-332-3234. Order Page 5 of 5