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5. Tenant Rights Applications

Caution
Readers reviewing this section regarding a specific tenant's rights application procedure should also be sure to review Ch.13, s.4 "General Board Procedures: General Application Procedures". That section contains key information that relates to all applications that can be brought before the Board.

(a) Overview

The RTA establishes a general "tenant's rights" application procedure [Act s.29] for the Board to address alleged violations of most of the tenant rights discussed in this chapter.

Procedures for such tenant applications are explained below. They break down into initial orders "determining" rights violations ("determinations"), and then additional orders to remedy the problem. Amongst the additional remedial orders are a special class which I call "serious breach" orders, which can result in restrictions on the landlord's right to increase rent (they are also discussed in Ch.12: "Other Rent Proceedings" as they impact on the landlord's right to take rent increases against new tenants).

While tenant's rights applications may also be made by former tenants of the premises, all such applications must be made to the Board within one year "after the day the alleged conduct giving rise to the application occurred" [Act s.29(2)]. The Board views on-going disrepair as a "continuing" violation, thus constantly extending the limitation period forward as long as the disrepair continues [see Interpretation Guideline 5: "Breach of Maintenance Obligations", linked below].

The Board's perspective on maintenance and repair-related rights and remedies is set out extensively in Interpretation Guideline 5. It places particular emphasis on the need, in any tenant's rights applications, to state both factual allegations and remedies sought with full details in the application, failing which the issue or remedy might not be considered by the Board. This Interpretation Guideline should be reviewed carefully by anyone involved in such a case:

Interpretation Guideline 5: Breach of Maintenance Obligations
Interpretation Guideline 6: "Tenant's Rights" places particular emphasis on the need for tenants to accurately and fully name the respondents (plural) in tenant's rights applications. This requires tenants to determine the correct legal form and name of the landlord [see Ch.1, s.3: "Fundamentals: Landlords, Tenant and Their Legal Forms"] - which in the case of a written lease should be relatively simple - and also to name any other parties whose behaviour is implicated in the situation, such as superintendents.

Interpretation Guideline 6: Tenant's Rights
(b) "Regular" Orders for Repair and Maintenance-Related Breaches

. Determinations

A tenant's (or former tenant's) application under s.29 of the RTA may seek a determination that the landlord (or his agent or superintendent, as appropriate) has [Act s.29(1)1]:

• breached their general repair obligations [see s.4(b): "Repair", above];
  
  
• breached applicable maintenance standards (typically - but not necessarily - based on property standards work orders) [see s.4(b) above] [Act s.20(1)];
  
  
• breached maintenance duties respecting mobile home park premises [Act s.161] [see Ch.2, s.4(c)]

If such a determination is made, ancillary remedial orders (as below: "Regular Remedial Orders" and "Serious Breach Rent Increase Restriction Orders") are also available (they should be requested in the same application as the "determination").

Form T6: Tenant Application About Maintenance
. Regular Remedial Orders

"Regular" remedial orders can include orders for [Act s.30(1)]:

• termination of the tenancy, and where such a termination order is made, "the Board may order that the tenant be evicted, effective not earlier than the termination date specified in the order." [Act s.32];
  
  This termination provision makes sense for tenants in some circumstances as it justifies their leaving premises that are intolerable to live in, and ends any future liability that the landlord may claim against them under a term lease. The eviction provision however seems an odd addition to a 'tenant's rights' order, but makes sense should the tenant change their mind and seek to squat.
  
  
• abatement of rent;
  
  
• authorization of past or future repair, replacement or work done or arranged by the tenant, with its cost to be paid by the landlord to the tenant";
  
  
• repairs or replacements or other work by the landlord within a specified time [see also: (c) "Serious Breach Rent Increase Restriction Orders", below];
  
  
• specific money compensation by landlord to tenant for:
  
  - "reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord's breach", and
  
  - "other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord's breach"; or
  
  
• any other order that the Board considers appropriate.

The RTA directs the Board, when considering the making of such ancillary remedial orders, to "consider whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the Board" [Act s.30(2)].

. Rent Payments to Board During Tenant Repair Application

On the request of the applicant/tenant, the Board may permit a tenant who has made a "Tenant's Right" Application regarding repair of the rental unit [Act s.29(1)1] to pay their rent to the Board in trust where it "considers it appropriate to do so", pending resolution of the repair application [Act s.195(1)(b),(3)]. Such Board-authorized payments, to the extent of their amount, are deemed to satisfy the tenant's legal duty to pay rent [Act s.195(5)].

Such requests may be made before or at the hearing of the application. See Ch.13, s.6(c): "General Board Procedures: Payments to the Board" for more on these procedures.

Request to Pay Rent to the Board on a Tenant Application About Maintenance
(c) "Serious Breach" Orders for Repair and Maintenance-Related Breaches

. Overview

Where the Board finds that a s.29 breach is a "serious breach" they may Order additional rent increase restrictions [under Act s.30(1)6,7,8]. The term "serious breach" is not defined in the legislation and will thus be left to the discretion of the Board member hearing the application.

"Serious breach" Orders are normally sought in conjunction with other remedies relating to repair and maintenance, and the forms used are the same as for regular repair and maintenance applications [see (b) above]. As with "regular" remedial orders (above), the RTA directs the Board, when considering the making of such orders, to "consider whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the Board" [Act s.30(2)].

Also note that where a "serious breach" rent increase restriction order is in effect over a rental unit and a vacancy occurs, special notice and other procedures apply regarding prospective and new tenants to the unit [see Ch.12, s.6: "Other Rent Proceedings: Serious Breach Rent Increase Restriction Orders and New Tenants"].

. Rent Increase Restriction Orders

These rent increase restriction Orders include a prohibition on the landlord from any of the following:

• charging a new tenant under a new tenancy agreement an amount of rent in excess of the last lawful rent charged to the former tenant of the rental unit";
  
  Note that such an Order does not apply to rent increases resulting from an agreed increase in services under s.123 [see Ch.12, s.4: "Other Rent Proceedings: Changes in Rent on Agreement to Change Prescribed Services"].
  
  
• giving a notice of rent increase for the rental unit;
  
  
• taking any rent increase for which notice has been given if the increase is taken after the date an order under this section is issued;
  
  until the landlord has:
  
  
• "completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard", and
  
  
• completed the specified repairs or replacements or other work that the landlord has been ordered by the Board to do, if they have been found by the Board to be related to a serious breach of the landlord's obligations under subsection 20 (1) [general repair and maintenance standards] or section 161 [mobile home park maintenance duties].

. Determining Work Completion

In what is sure to be an area of chronic dispute (and unless the issue is specifically addressed in a Board Order) the RTA does not impose a requirement that the Board must 'lift' a serious breach Order when the required work is alleged by the landlord to be completed (when the sanctions would no longer be effective). This leaves the 'decision' of when the sanction ends in the necessarily biased hands of the landlord, with an obvious potential for disagreement with the tenant. Such disputes may ultimately find themselves only being adjudicated by the Board after the landlord re-commences rent increases, the tenant refuses to pay, and the landlord moves to terminate and evict for non-payment of rent.

This problem may be marginally ameliorated where the order is grounded in other legal proceedings (typically municipal property standards work orders) and independent verification of work order compliance is available. However no such 'declaration of compliance' is a normal part of their processes either, and even collateral verification is not likely to become available in a way that would satisfy the time urgency of a landlord eager to recommence rent increases.

. Other Consequences of Serious Breach Orders

There are two other areas where the existence of a "serious breach" order can impact on the legal rights of the parties.

The first is where "the landlord is in serious breach of the landlord's responsibilities under this Act or of any material covenant in the tenancy agreement", then "the Board shall refuse to grant the application" to evict [Act s.83(3)(a); see Ch.9, s.5(c): "Termination Defences: Positive Defences: Mandatory Refusals"]. The existence of such an outstanding Board order is prima facie evidence of such serious breach, subject of course to the problems noted in "Determining Work Completion" above.

The second is that, where a serious breach Order is made, any landlord s.126 above-guideline rent increase applications to the Board may either be dismissed or restricted by the Board until the required work is actually completed [see Ch.11, s.6: Above-Guideline Rent Increases: Dismissal or Suspension of Order Where Serious Repair Breach by Landlord"]. Note that in the case of an above-guideline rent increase restriction the landlord actually has to make a motion to the Board for a determination that the serious breach has been remedied before they can take their above-guideline increase, so that the concern raised above ('Determining Work Completion') does not arise.

(d) Regular Orders for Other Breaches

. Overview

The above sub-sections (b) and (c) focus on Board determinations and remedial orders regarding repair and maintenance-related default by the landlord. This sub-section addresses determinations and remedial orders regarding most other tenant rights.

. Determinations

As a preliminary step to obtaining a remedial order (below) for an alleged tenant's rights violation, a tenant (or former tenant) may apply to the Board for a "determination" that the landlord (or his agent or superintendent, as appropriate) has [Act s.29(1) 2-6]:

• withheld reasonable supply of any vital service, care service or food that it is the landlord's obligation to supply under the tenancy agreement [see s.4(c): Vital Services, above];
  
  
• deliberately interfered with the reasonable supply of any vital service, care service or food [see s.4(c): Vital Services, above];
  
  
• has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant's occupancy of the rental unit [see s.2(d): "Harassment", above];
  
  
• substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household [see s.2(e): Reasonable Enjoyment, above];
  
  Note:
  Special (and extensive) criteria apply to the making of a "determination" that a "substantial interference with reasonable enjoyment" of the premises has occured where it is caused by maintenance, repair or capital improvement work on the premises. See these below at s.5(e): "Restrictions on Substantial Interference Orders Where Repair, Maintenance or Capital Improvement Work", below.
  
  
• has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant's occupancy of the rental unit without giving the tenant replacement keys [see s.3(i): Privacy, Entry and Related: Changing Locks, above]; or
  
  
• has illegally entered the rental unit [see s.3: "Privacy, Entry and Related", above].

Form T2: Application About Tenant Rights
. General Remedial Orders

Remedial orders are available if such a determination is made (they are usually requested in the same application). These can include general ancillary orders against the landlord (or superintendent or agent, as appropriate) [Act s.31(1)(2)]:

• to desist from engaging in any further such activities against any of the tenants in the residential complex;
  
  
• specific money compensation by landlord to tenant for:
  
  - "reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of" the landlord's, superintendent's or agent's breach, and
  
  - "other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of" the landlord's, superintendent's or agent's breach".
  
  
• for termination of the tenancy, and where such a termination order is made, "the Board may order that the tenant be evicted, effective not earlier than the termination date specified in the order." [Act s.32];
  
  
• for abatement of rent;
  
  Note:
  Special (and extensive) criteria apply to the issuance of an order for abatement of rent based on "substantial interference with reasonable enjoyment" of the premises where it is caused by maintenance, repair or capital improvement work. See these below: s.5(e).
  
  
• of an administrative fine payable by the landlord to the Board "not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court" [which at 01 January 2010 increased to $25,000];
  
  
• any other order that the Board considers appropriate.

Case Note: Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin
In Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin (Div Ct, 2020) the Divisional Court considered the s.31 RTA remedy of re-instatement of possession in the context of an illegal eviction and a finding of substantial interference by the landlord:

[24] In the final decision dated September 5, 2019, the Board found that the appellant had substantially interfered with the respondent’s reasonable enjoyment of the rental unit or the residential complex, because it had evicted him without proper notice of termination and without an order of eviction from the Board. The member concluded that it was appropriate to order the respondent reinstated to possession of the rental unit, and she ordered that he be allowed to return to the rental unit immediately.

....

[27] The member considered the appellant’s arguments against reinstatement, including the fact that JJ had been assigned the room by the Ministry, and that employees might refuse to work and the appellant might have to close the home. However, she concluded that she could order reinstatement pursuant to s. 31(1)(f) of the Act in the circumstances, and reinstatement was the proper remedy. As she stated (at para. 13),

In my view, it is the Landlord which put itself in this position by unlawfully evicting the Tenant and it would be unfair to deny the Tenant the right to return to the rental unit due to Landlord’s failure to take the steps necessary to terminate the tenancy and evict the Tenant in accordance with the Act. Therefore, I find that the Tenant must be permitted to return to the rental unit immediately.

The case continued at paras 59-73 with a statutory interpretation analysis of it's conclusion denying the appeal, upholding the member's conclusions.

. Additional Remedial Orders Where Tenant Vacates

Additionally, where the landlord's, superintendent's or agent's conduct induced the tenant to vacate the rental unit, the Board may order specific money compensation by the landlord to the (former) tenant for [Act s.31(2)]:

• "all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit"; and
  
  
• "reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur."

Case Note: In Khokhlov v. Metcap Living Management Inc. (Div Ct, 2013) the court stated as follows on the interpretation of RTA 31(2):

[11] The appellant suggests the word “induced” in s. 31(2) requires a positive act. We agree with the respondent that this position is inconsistent with one of the objectives of the Act which is “the protection of residential tenants”: (See York (Regional Municipality) v. Thornhill Green Co-operatives Home Inc., [2009] O.J. No. 3036 at para. 35).

[12] To give effect to this purpose, the words “induced by the conduct of the landlord” in s. 31(2), should be interpreted liberally. A liberal interpretation calls for including any act or failure to act on the part of the landlord that persuaded the tenant to vacate the rental unit. On this issue, the Board made a finding of fact which is not subject to appeal, that the landlord`s conduct in failing to address the bedbug infestation in the common hallway induced the tenant to move out. Having found inducement as a fact, it was wholly within her discretion to order rent differential treatment under s. 31(2.)

. Tenant Re-possession Where Lock-out

Additionally, where the landlord, superintendent or agent has altered the locking system (as outlined above) and thereby locked the tenant out of the premises, the Board may - if the rental unit is vacant - order "that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else".

Such orders may be enforced in the same fashion as a writ of possession [ie. an eviction order: see Ch.14, s.7: "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement"; Act s.31(4)]. However such 'eviction orders' expire [Act s.31(5)]:

• if not filed with the sheriff for enforcement by the end of the 15th day after issuance - at that time, or
  
  
• if filed with the sheriff for enforcement as above, at the end of the 45th day after issuance.

(e) Restrictions on "Substantial Interference" Orders Where Repair, Maintenance or Capital Improvement Work

. Overview

Where 'substantial interference with reasonable enjoyment of the premises for all usual purposes' of the premises has been alleged to have been caused to a tenant (or former tenant) or member of their household by a landlord, superintendent or agent of a landlord, special criteria apply to "determinations" of such a breach and to "abatement of rent" orders to remedy it, if the alleged breach was due to the performance of maintenance, repair or capital improvement work (hereinafter "work) [Reg s.8(1)(2)]. These very complex criteria (for the small amount of money usually involved in these cases) and rules are explained here.

. Criteria Re Determination

To the extent that a disturbance is caused by work on the premises, the Board shall not make a determination of "substantial interference with reasonable enjoyment" unless it finds that the disturbance was unreasonable in light of the effect of work in improving the use of the premises by the applicant tenants [Reg s.8(3)].

. Conditions Barring Abatement of Rent Order

After a determination that a "substantial interference with reasonable enjoyment" been made, the Board shall not make a remedial order of abatement of rent in response to the breach if all of the following apply [Reg s.8(4)]:

• Prior Notice to Tenant
  
  The landlord gave prior notice "concerning the work to be carried out", as applicable:
  
  - to the tenant, 60 days beforehand;
  
  - in the case of an emergency, to the tenant "as soon as was reasonable in the circumstances";
  
  - to a prospective tenant, "at the first opportunity to do so before" the tenancy agreement is entered into.
  
  
• Information Content of Notice
  
  Such prior notice must "describe() the nature of the work to be carried out, the expected impact on tenants and members of their households and the length of time the work is expected to take".
  
  The notice must be "reasonably accurate and comprehensive in the circumstances at the time it was given."
  
  
• Change in Information
  
  Any significant changes to the information contained in the notice must be made known to the tenant by an "update" to the tenant given in a timely manner.
  
  
• Nature of Work
  
  The work must meet any one (at least) of the following criteria:
  
  - it is necessary for the protection or restoration of the physical integrity of the residential complex or part of it;
  
  - it is necessary to comply with maintenance, health, safety or other housing related standards required by law;
  
  - it is necessary to maintain a plumbing, heating, mechanical, electrical, ventilation or air conditioning system;
  
  - it provides access for persons with disabilities;
  
  - it promotes energy or water conservation, or
  
  - it maintains or improves the security of the residential complex.
  
  
• Building Code Permit, If Required
  
  If the work is required under the Building Code Act, 1992, a permit was issued in respect of the work.
  
  
• Reasonable Times
  
  The work was carried out at reasonable times, or if a municipal noise control by-law was in effect, during the times permitted under the noise control by-law.
  
  
• Duration
  
  The duration of the work was reasonable in the circumstances.
  
  
• Noise Reduction
  
  The landlord took reasonable steps to minimize any interference resulting from noise associated with the work.

. Criteria for Abatement of Rent

After a determination that a "substantial interference with reasonable enjoyment" has been made, and if no conditions bar the making of an order for abatement of rent (immediately above), then the Board shall consider the following criteria in deciding whether to order an abatement of rent, and if so, its amount [Reg s.8(5)]:

• the nature, duration and degree of the interference caused by the carrying out of the work;
  
  
• whether the tenant or former tenant is responsible for any undue delay in the carrying out of the work;
  
  
• steps taken by the landlord minimize interference;
  
  
• whether the tenant or former tenant took advantage of any service provided by the landlord or arrangement made by the landlord that would minimize interference;
  
  
• whether a failure to carry out the work could, within a reasonable period of time, reasonably be expected to result in any of the following:
  
  - other interference with the reasonable enjoyment of the premises by the applicants;
  
  - a reduction or discontinuation of a service or facility;
  
  - damage or additional damage to the premises, the residential complex, or anything within them;
  
  - risk to anyone's health or personal safety;
  
  - a breach of the landlord's responsibilities to maintain the premises "in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards" [Act s.20] or to properly maintain mobile home park premises [Act s.161].

. Maximum Abatements of Rent Percentages

Normally, an abatement of rent for "substantial interference with reasonable enjoyment" shall not exceed 25% of the monthly rent for the periods during which the interference continued [Reg s.8(6)]. As well, (of course) there is an ultimate cap at 100% maximum abatement of rent level [Reg s.8(8)].

However, the "normal" 25% rate may be exceeded where [Reg s.8(7)] the interference "far exceed(s) the level that would normally be expected, taking into consideration all of the relevant circumstances", and where any one of the following apply:

• the work was carried out at unreasonable times or at a time that is not permitted under any applicable noise control by-law;
  
  
• the work was carried out in a manner that contravened a condition or requirement of a building permit issued under the Building Code Act, 1992;
  
  
• the work was carried out over a period of time far in excess of the amount of time that normally would be required, after taking into consideration any exceptional circumstances beyond the control of the landlord, including weather-related delays, delays in obtaining necessary government approvals or permits and delays caused by market shortages of suitable goods or services or qualified labour at reasonable costs;
  
  
• the landlord refused to take reasonable steps during the work to minimize interference with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or former tenant, or by a member of the household of the tenant or former tenant, or
  
  
• the work is none of the following [ie. if the work is any one of the below, then another criteria (listed above) must be relied upon to exceed the 25% abatement limit]:
  
  - necessary for the protection or restoration of the physical integrity of the residential complex or part of it,
  
  - necessary to comply with maintenance, health, safety or other housing related standards required by law,
  
  - necessary to maintain a plumbing, heating, mechanical, electrical, ventilation or air conditioning system,
  
  - providing of access for persons with disabilities,
  
  - promoting of energy or water conservation, or
  
  - maintaining or improving of the security of the residential complex.