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RTA - Special and Exempt - Social Housing. Lindsay v. Ecuhome Corporation
In Lindsay v. Ecuhome Corporation (Div Court, 2024) the Ontario Divisional Court considered the law relating to a CJA s.21(5) Divisional Court panel set aside motion.
Here the court sets out it's RGI subsidy determination jurisdiction:[22] The more fundamental problem with Mr. Lindsay’s position is that even if he were granted an extension of time to review Justice Matheson’s decision and even if the panel set aside Justice Matheson’s order and even if he were permitted to files his judicial review application from the 2022 decisions of the Board, this Court would not be able to correct the RGI calculations. That is because, as Mr. Lindsay has been repeatedly told, the Landlord and Tenant Board does not have jurisdiction to consider issues related to the calculation of RGI subsidies. RGI calculations are governed by the Housing Services Act, and the Residential Tenancies Act expressly prohibits the Board from making determinations or reviewing decisions about eligibility for an RGI subsidy or the amount of a subsidy. This Court can only consider the validity of the Board’s decision on an application for judicial review. This Court cannot review or correct the RGI calculations that were done by another statutory decision maker. . Lindsay v. Ecuhome Corporation [rent increases]
In Lindsay v. Ecuhome Corporation (Div Court, 2024) the Divisional Court dismissed an RTA non-payment of rent s.210 appeal. Here the court considers rent increases in a social housing context:D. Rent increases
[23] Under the Residential Tenancies Act, a landlord can only increase rent once a year and only in accordance with the guideline determined annually by the Minister. Mr. Lindsay argued that Ecuhome illegally increased his rent during the province-wide rent freeze in 2020 and 2021. He also argued that Ecuhome increased his rent by more than the prescribed amount. The Board considered and rejected both arguments.
[24] The Board accepted the evidence adduced by Ecuhome that any changes in Mr. Lindsay’s rent were caused “solely from recalculations made under the RGI scheme.” The Board, therefore, found the changes to Mr. Lindsay’s rent were lawful. The Board made no error in making those findings. The portion Mr. Lindsay was required to pay towards his rent did fluctuate over time. In December 2020, his portion increased from $145 a month to $682 a month based on the RGI calculation. In March 2021, his portion reverted to $145 a month based on new income information. In January 2022, he was required to pay $593 of the monthly market rent, which remained at $682. On December 1, 2022, Mr. Lindsay’s portion of the rent went down to $470 a month even though the market rent increased to $690 a month. As of September 1, 2023, Mr. Lindsay was again required to pay $145 towards the market rent.
[25] It is not accurate to say that Mr. Lindsay’s rent has increased. The market rent was $682 during the province-wide rental freeze in 2020 and 2021. The market rent for his unit increased to $690 in December 2022. There is no suggestion the increase of $8 a month is beyond the guidelines amount. What changed is the amount he is required to contribute as his RGI subsidy changed based on his income.
[26] The Board made no error in finding the changes in Mr. Lindsay’s payments towards the rent were caused by changes in the RGI calculations (which are beyond the Board’s jurisdiction) and were lawful. . Lindsay v. Ecuhome Corporation [LTB has no jurisdiction re RGI calculations]
In Lindsay v. Ecuhome Corporation (Div Court, 2024) the Divisional Court dismissed an RTA non-payment of rent s.210 appeal, here relating to an RGI social housing unit.
Here the court considered the vexed RTA s.203 ['Determinations related to housing assistance'] issue, in which the LTB has no RGI determination jurisdiction:[13] Mr. Lindsay’s primary argument is that his RGI subsidy was not calculated properly in 2020, 2021 and 2022. Mr. Lindsay argued before the Board that if the RGI calculations for those years were corrected, he would not be in arrears on his rent and there would be no basis for his eviction.
[14] The Board correctly found it did not have jurisdiction to determine issues related to the proportion of the rent Mr. Lindsay was required to pay. RGI calculations are governed by the Housing Services Act and s. 203 of the Residential Tenancies Act says that the Board shall not “make determinations or review decisions” concerning eligibility for an RGI subsidy or the amount of the subsidy. The Board made no error in finding it could not revisit the RGI calculations for 2020, 2021 or 2022.
[15] Mr. Lindsay sought an adjournment of the hearing so he could seek a review of the RGI calculations from 2020, 2021 and 2022 in a different forum. The Board denied that request. The Board found that there was no basis to find a review of the RGI calculations would be successful. The Board also found that Mr. Lindsay had not exercised reasonable diligence in seeking to review the calculations before the hearing. The Board did not make any error in making either finding.
[16] To understand my conclusion that the Board did not err in denying Mr. Lindsay’s adjournment request, I must review the history of his RGI subsidy calculations in some detail.
[17] When Mr. Lindsay first moved into his unit, he was required to pay $145 towards the market value rent of $682. His RGI subsidy covered the rest of the market rent. Mr. Lindsay takes the position that he should never have been required to pay more than $145 towards his rent. However, in October 2020, Mr. Lindsay received a notice that his RGI subsidy was going to decrease and he would be required to pay the full market rent of $682 as of December 2020. Mr. Lindsay sought a review of that decision, which was denied. However, in March 2021, his RGI subsidy was re-calculated because Mr. Lindsay provided new information about his 2020 income. Based on the new information, Mr. Lindsay was again required to pay $145 towards his rent. That decision was made retroactive to December 2020 and the arrears Mr. Lindsay had incurred between December 2020 and March 2021 were reversed.
[18] In October 2021, Mr. Lindsay received a notice that his RGI subsidy had decreased and his portion of the RGI rent would increase to $593 on January 1, 2022. There is no evidence that Mr. Lindsay sought a review of that decision. In November 2022, Mr. Lindsay received a notice that his contribution towards the rent would be decreasing to $470 as of December 2022. Again, there is no evidence Mr. Lindsay sought to review that decision. Instead, to the extent Mr. Lindsay paid rent, he continued to pay $145 a month.
[19] Mr. Lindsay did not adduce any evidence to show the 2021 or 2022 calculations were incorrect based on the income information he submitted in those years. The Board, therefore, made no error in finding there was no basis to conclude a review of the calculations would be successful.
[20] The Board also made no error in finding that Mr. Lindsay had not exercised reasonable diligence in seeking a review of the calculations. Mr. Lindsay had known for more than a year that the Board did not have jurisdiction to deal with issues related to RGI calculations. Mr. Lindsay filed his own complaint with the Board in 2021. Mr. Lindsay claimed Ecuhome was harassing him and interfering with his reasonable enjoyment of his unit. Among several issued raised in his application, Mr. Lindsay argued that Ecuhome had increased his rent in violation of the province wide rent freeze during COVID-19 and was harassing him about rental arrears. The Board dismissed Mr. Lindsay’s application on April 7, 2022 – more than a year before the hearing on Ecuhome’s application to terminate Mr. Lindsay’s tenancy. The Board held that under s. 203 of the Residential Tenancies Act it “has no jurisdiction to intervene with the decision of the designated service managers under the [Housing Services Act] regarding the amount of geared-to-income rent payable under that Act.” The Board also noted that the Housing Services Act “provides tenants with an opportunity to challenge a decision respecting their RGI eligibility outside of the Board.”
[21] It was open to the Board to find Mr. Lindsay had not exercised reasonable diligence in relation to his concerns about the RGI calculations between April 7, 2022 when the Board dismissed his application and the April 28, 2023 hearing of Ecuhome’s application. In his record on this appeal, Mr. Lindsay filed a “Request for Review” form he submitted to the City of Toronto Housing Stabilities Services. That request was dated April 28, 2023 – the same day as the hearing before the Board. Mr. Lindsay also submitted evidence he had filed a complaint to the Auditor General’s Office. That complaint was also initiated on April 28, 2023. It is not clear if Mr. Lindsay filed these two documents during the April 28, 2023 hearing or if they constitute fresh evidence on his appeal. Either way, they do not undermine the Board’s finding that Mr. Lindsay had not acted with reasonable diligence before April 28, 2023 to address his concerns about the RGI calculations in the proper forum. . Ramlal Hemchand v. Toronto Community Housing Corporation
In Ramlal Hemchand v. Toronto Community Housing Corporation (Div Court, 2023) the Divisional Court considered a large rent arrears order from the LTB for a social housing unit. At a prior JR the tenant-appellant unsuccessfully argued against that local RGI decision, illustrating the expected procedural route where a social housing tenant challenges an RGI termination [as per RTA s.203]:[5] In the tenant’s notice of appeal, he alleged that he had wrongly lost his rent-geared-to-income (“RGI”) assistance, resulting in a large rent increase and the rental arrears. Before moving forward with his appeal, he was permitted to await a decision in a related application for judicial review that was before this Court. He had sought judicial review of a decision of the City of Toronto Review Board regarding his eligibility to receive RGI assistance.
[6] The tenant’s judicial review application regarding RGI was dismissed.[1]
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