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RTA - Non-Payment of Rent Termination (2). Elguindy v. Galaxy Real Estate Core Ontario LP
In Elguindy v. Galaxy Real Estate Core Ontario LP (Div Court, 2024) the Divisional Court dismissed an appeal from "a Review Order, ... of the Landlord and Tenant Board (the “LTB”), which dismissed a Motion to Void an Eviction Order ...", here where the issue was a return to the tenant of funds paid into the Board after an inadequate arrears 'catch-up' payment [RTA 74(11)]:[14] The Member also dismissed the Tenant’s Motion to Void: the Tenant argued that pursuant to section 74(11) of the RTA, the Tenant had paid the $70,069.76 required to void the eviction order. The Member found that the Tenant had in fact only paid a total of $60,381.00, of which $39,886.64 was held in trust by the LTB.
[15] Pursuant to the LTB Rules of Procedure Rule 20.6, which states that if after an order becomes enforceable, the Tenant pays less than the amount required to void the order, then the monies be directed back to the Tenant, the Member directed that the LTB direct any monies held in trust back to the Tenant.
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[36] With respect to the Member’s decision to order the payment of the rent paid into the LTB out to the Tenant, I agree with her that Rule 20.6 of the LTB Rules provides that this is what is supposed to happen. However, I note that a previous version of these rules provided the opposite — until 2018, the monies held were to be paid to the landlord. I also note that Rule 1.6 of the LTB Rules states the following:In order to provide the most expeditious and fair determination of the question arising in any proceeding the LTB may,
a. waive or vary any provision in these Rules ... [37] Thus, the Member had a discretion not to apply Rule 20.6 in the interests of fairness. Furthermore, the Landlord made a submission before her that applying Rule 20.6 would not be fair. Instead of dealing with that submission on the merits, the Member simply applied Rule 20.6 without considering whether to exercise her discretion to waive the rule. This was an error of law. . Anca International Holding Group Inc. v Zhao
In Anca International Holding Group Inc. v Zhao (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal against an eviction order, here with premises that rented for over $15,000 a month though the matter proceeded before the LTB.
Here the court dismisses the tenant's late-brought RTA 82 (tenant's rights setoff against non-payment termination) argument:[5] The appellants’ arguments on the appeal stem from the tribunal member’s denial of their request for an adjournment of the hearing. They submit that the refusal of the adjournment denied them procedural fairness. They say the denial of the adjournment led the tribunal member to refuse to allow them to present repair invoices to set off against rental arrears as allowed under s.82 of the statute. They say that the denial of the adjournment led the tribunal member to have incorrect or inexact evidence about the tenants’ ability to pay a proposed payment plan. They say the denial of the adjournment led the tribunal member to fail to understand factors necessary to guide the discretionary decision to deny an eviction under s. 83 of the statute.
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[39] .... During the hearing, Mr. Juzkiw submitted that the tenants wanted an opportunity to show they had incurred costs that could be set off against rent under s. 82 of the statute. But Rule 19.4 of the tribunal’s Rules of Procedure specifically requires disclosure of particulars of s. 82 defences and documents in advance of the hearing. The tribunal member held:6. At the hearing, the Tenants' legal representative sought to raise several issues under section 82 of the Residential Tenancies Act, 2006 (the 'Act'). The Tenants legal representative acknowledged that they did not provide the Landlord or the Board with a written description of each issue they intended to raise under section 82 as required under section 82 of the Act and Rule 19.4 of the Board's Rules of Procedure. The Tenants' legal representative, not their agent, provided no evidence that they were unable to comply with the disclosure requirements and as a result, the Tenants were not permitted to raise any issues under section 82 of the Act. The Tenants may still have an opportunity to bring their own application against the Landlord to address the issues they sought to raise at this hearing under section 82. [40] Once again, I see no error of law in the tribunal member’s decision. He simply applied the Rules of Procedure of the tribunal in face of unexplained non-compliance by the tenants. The refusal of an adjournment did not deny the tenants the ability to rely on their repair expenses. Their failure to follow the Rules of Procedure meant that they could not do so in this hearing. Subject to the passage of time, they continue to have whatever rights to reimbursement for repair expenses they may be able to prove. . Anca International Holding Group Inc. v Zhao
In Anca International Holding Group Inc. v Zhao (Div Court, 2024) the Divisional Court dismissed an RTA s.210 appeal against an eviction order, here with premises that rented for over $15,000 a month though the matter proceeded before the LTB.
Here the court clarifies that the LTB's $35k monetary order limitation does not operate so as the restrict 'catch-up payments' over that amount:[41] In their factum, the tenants submitted that the tribunal was not entitled to require them to pay their full arrears to avoid the eviction order. While it is indeed the case that the tribunal cannot grant judgment on arrears in excess of $35,000, case law in this court confirms that this monetary limit does not apply to the amount of arrears needed to be paid to void an eviction order. It would be a gross abuse if tenants could stall payment and then reinstate their leases by paying a fraction of their arrears. While the landlord will only have judgment for $35,000 enforceable going forward, the lease will be terminated. That is the trade-off provided by the statute. Rosen v. Reed, 2023 ONSC 6482 (CanLII) and Galaxy Real Estate Core Ontario LP v. Kirpichova, 2023 ONSC 593 . Telan v. Elm Place
In Telan v. Elm Place (Div Court, 2023) the Divisional Court applied the 'effect of payment' [RTA 45] provisions that bars the doctrine of estoppel when a tenant pays some back-rent, thus enabling the landlord to continue to pursue termination:Additional Issue: Novation
[20] Although not pursued in oral argument, Ms. Telan submitted in her factum that a novation occurred when the landlord accepted rent payments pursuant to her existing tenancy agreement. It does not appear this argument was raised before the Board. In any event, s. 45 of the Act expressly provides that unless a landlord and tenant agree otherwise, “the landlord does not waive a notice of termination, reinstate a tenancy or create a new tenancy” by accepting arrears of rent or rent payments after the Board makes an eviction order. There was no evidence before the Board that the parties had agreed to a novation. This ground of appeal is dismissed.
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