Price v. Turnbull's Grove Inc.,

• Jurisdiction: Ontario
• Judge: Cronk, Armstrong and MacFarland, JJ.A.
• Neutral Citation: 2007 ONCA 408
• Citation: 2007 ONCA 408,(2007), 225 O.A.C. 1 (CA),85 OR (3d) 641,[2007] OJ No 2177 (QL),225 OAC 1,85 O.R. (3d) 641,225 O.A.C. 1,[2007] O.J. No 2177 (QL),(2007), 225 OAC 1 (CA)
• Date: 20 April 2007
• Court: Court of Appeal (Ontario)

Price v. Turnbull's Grove Inc. (2007), 225 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JN.009

Marissa Price (appellant) v. Turnbull's Grove Inc. (respondent)

(C45943; 2007 ONCA 408)

Indexed As: Price v. Turnbull's Grove Inc.

Ontario Court of Appeal

Cronk, Armstrong and MacFarland, JJ.A.

June 5, 2007.

Summary:

A tenant filed an application with the Ontario Rental Housing Tribunal (OHRT) for the return of rent monies that she alleged had been collected illegally. The ORHT dismissed her application. The tenant did not appeal the decision. The landlord applied to the ORHT seeking to terminate the tenancy and to evict the tenant for non-payment of rent. It also sought to recover as arrears of rent the shortfall between the monthly rent that the tenant had paid effective September 2003 and her alleged rent of $250 per month. The ORHT granted the landlord's application and rejected the tenant's argument that the landlord was barred, under s. 141 of the Tenant Protection Act, from claiming rent arrears after accepting a lesser amount of rent from the tenant for more than one year. The ORHT also held that the tenant's lawful rent was $250 per month for the period November 1, 2002 to December 31, 2004 and ordered the tenant to pay rent arrears of $1,227.02 in instalments over a six month period, failing which the landlord could apply to the ORHT for an order terminating the tenancy without notice and requiring the tenant to pay the balance of all rent outstanding. The tenant appealed.

The Ontario Divisional Court, in a decision not reported in this series of reports, dismissed the appeal. The tenant appealed.

The Ontario Court of Appeal allowed the appeal on the basis that the rent increase imposed by the landlord in November 2002 was void by virtue of s. 127(4) of the Act for non-compliance with the mandatory written notice requirement of s. 127(1). This type of deficiency could not be cured by s. 141(1) or 141(2) of the Act.

Equity - Topic 2061

Equitable defences - Laches - General (incl. when applicable) - The Ontario Court of Appeal held that a rent increase imposed by a landlord was void by virtue of s. 127(4) of the Tenant Protection Act for non-compliance with the mandatory written notice requirement of s. 127(1) and this type of deficiency could not be cured by s. 141(1) or 141(2) of the Act - However, the court stated that "Importantly, before this court, no argument of laches or estoppel is put against the [tenant]. I do not wish to be taken as suggesting that such an argument could not arise in a proper case, arguably to preclude tenant reliance on s. 127(4) of the Act many years after an unchallenged imposition of a rent increase implemented in non-compliance with s. 127(1) of the Act." - See paragraph 45.

Estoppel - Topic 1367

Estoppel in pais (by conduct) - Laches or delay - Statutory claim or defence - [See Equity - Topic 2061 ].

Landlord and Tenant - Topic 3950

Rent - Rent increases - Invalid notice - Effect of - The Ontario Court of Appeal held that while s. 141 of the Tenant Protection Act afforded a "statutory amnesty" to landlords after the expiry of one year from the date of the imposition of a rent charge or a rent increase, this amnesty applied only to an unlawful rent charge or rent increase and only then where the conditions set out in s. 141(1) or 141(2) were met - It did not apply to a rent increase rendered void under s. 127(4) - A rent increase rendered void under s. 127(4) of the Act for non-compliance by the landlord with the mandatory notice requirement of s. 127(1) was not merely unlawful, it was a nullity - It was as if the increase never occurred - Accordingly, in the case of a void rent increase, there was nothing to be "saved" by the curative provisions of s. 141.

Landlord and Tenant - Topic 3950

Rent - Rent increases - Invalid notice - Effect of - The Ontario Court of Appeal discussed situations where otherwise "unlawful" rent increases would be deemed to be lawful by virtue of ss. 141(1) and 141(2) of the Tenant Protection Act - See paragraphs 41 and 42.

Landlord and Tenant - Topic 7009

Regulation - General principles - Interpretation of legislation - At issue on an appeal was the legal effect of a rent increase purportedly imposed by a landlord in respect of a residential tenancy without written notice to the tenant - At issue was the interplay between ss. 127(1), 127(4) and 141 of the Tenant Protection Act - The Ontario Court of Appeal stated that "to the extent that there is any ambiguity regarding the interplay between ss. 127(1) and 127(4) of the Act, on the one hand, and ss. 141(1) and 141(2), on the other hand, the tenant-centred focus of the Act requires that these sections be interpreted in a manner that furthers the protective objects of the Act. This both facilitates the achievement of the legislature's goals in enacting the Act and, in accordance with well-established rules of statutory interpretation, minimizes the potential for conflict between ss. 127(1), 127(4) and 141." - See paragraph 44.

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 24].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 24].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 24].

Canada Post Corp. v. Key Mail Canada Inc. et al. (2005), 202 O.A.C. 158; 77 O.R.(3d) 294 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 422, refd to. [para. 24].

Metropolitan Toronto Housing Authority v. Godwin et al. (2002), 161 O.A.C. 57 (C.A.), refd to. [para. 26].

Toronto (City) v. Goldlist Properties Inc. et al. (2003), 178 O.A.C. 11; 67 O.R.(3d) 441 (C.A.), refd to. [para. 26].

North York General Hospital Foundation v. Armstrong et al. (2004), 181 O.A.C. 153; 69 O.R.(3d) 603 (Div. Ct.), affd. (2005), 202 O.A.C. 131; 258 D.L.R.(4th) 85 (C.A.), refd to. [para. 26].

Wolkow v. Dunnell (1998), 112 O.A.C. 102; 40 O.R.(3d) 783 (C.A.), refd to. [para. 34].

Statutes Noticed:

Tenant Protection Act, S.O. 1997, c. 24, sect. 127(1), sect. 127(4), sect. 141(1), sect. 141(2) [para. 16].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 24].

Counsel:

Jamie Hildebrand, for the appellant;

David Bruder, agent for the respondent.

This appeal was heard on April 20, 2007, by Cronk, Armstrong and MacFarland, JJ.A., of the Ontario Court of Appeal. Cronk, J.A., delivered the following decision for the court on June 5, 2007.