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Interpretation Guidelines are intended to assist the parties in understanding the Tribunal's usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making. However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case.
Under subsection 32(1) of the Tenant Protection Act, 1997 ("the Act"), as amended by the Red Tape Reduction Act, 2000, a tenant may apply to the Tribunal for an order determining that the landlord, superintendent or agent of the landlord:1
Section 35 of the Act sets out the remedies which the Tribunal may include in an order if a finding is made in respect to any of these matters (referred to as the "actions").
Under subsection (1), these remedies include:
If the conduct induced the tenant to vacate the unit, subsection (2) also permits the Tribunal to order the landlord to pay a specified amount to the tenant as compensation for:
Section 30.1 of O/Reg. 194/98, made pursuant to the amendment to section 208 of the Act, contained in the Government Efficiency Act, 2001, sets out criteria to be applied by the Tribunal in determining whether there is substantial interference when a landlord does maintenance, repairs or capital improvements, criteria for determining whether to order an abatement of rent, and rules for calculating an abatement.
This Guideline provides guidance as to the remedies which may be appropriate in some situations, although it cannot deal with every situation.
General Principles
The legislation allows a Member a choice of remedies which would address two main objectives: compensation and/or deterrence. Compensation is possible through rent abatements, additional rent/moving expenses and other "appropriate" orders. Deterrence of further actions by the respondent would be the basis of an order not to engage in actions against any tenant and/or an order to pay an administrative fine. However, where the application is based on interference resulting from maintenance, repairs or capital improvements, the discretion of the Member must be exercised as set out in section 30.1 of O/Reg. 194/98. See the section below entitled Interference resulting from maintenance, repairs or capital improvements for an analysis of this type of application.
Properly Naming Respondents
It is essential that the tenant name the appropriate persons as respondents. If a person who should be responsible is not notified of the application, and thus has no opportunity to respond to the allegations and make submissions on the possible remedies, no remedies will be ordered against that person.
For example, if the tenant names only the landlord as a respondent, but proves that a superintendent or agent of the landlord was responsible for the action, the remedies available are limited. The Tribunal cannot order remedies against the superintendent or agent unless they had the opportunity to participate in the hearing as a party. For example, if it is appropriate to order that the superintendent not engage in the actions against any tenant, that could not be part of the order.
Similarly, if the tenant named a superintendent or agent, but not the landlord, ordering the landlord to pay an administrative fine or terminating the tenancy would not be appropriate. The Tribunal could also not order the landlord to pay a rent abatement if they have not been a respondent entitled to answer any evidence of such a claim at the hearing. However, if the tenant has named a respondent who is not the landlord because the landlord dealt with the tenant through that person, the Member will usually allow the application to be amended to name the correct landlord.
If the landlord is a corporation or similar entity, the Member must determine whether the persons who engaged in the actions against the tenant were acting on behalf of the landlord. A corporation may only act through human beings: namely, its officers and employees. The corporation may also enter into a contract with an agent to act on its behalf. Thus, if the individual who engaged in the action against the tenant was an officer, employee or agent of the corporation, the corporation is responsible as the landlord and the Member may order remedies against both the individual and the corporation.
If the tenant decides early in the hearing that another respondent should have been named, the Member must consider whether the tenant should have been aware that the other respondent should have been named in the application. The hearing would have to start again from the beginning if another respondent was added by the Member. However, if the other respondent is a corporation, one of whose employees, officers or agents was at the hearing already, it might not be necessary to re-start the hearing.
Lack of Intention to Harm the Tenant
After finding that a landlord, superintendent or agent has done any of the actions, any one or more of the remedies mentioned in subsection 35(1) may be included in the order. Nevertheless, the respondent may defend the application on the basis that, although they did engage in the action, it was not "intentional".
The evidence may show that the action was "innocent". Being innocent would mean that, although the action was deliberately done, it was not done to harm the tenant or with disregard for the tenant's interests. If the action was innocent, the most serious remedies may not be appropriate.
For example, if a landlord illegally entered a unit once, with a reasonable basis for thinking that it was permitted, a small abatement of rent may be appropriate to compensate the tenant for the breach of the statute. If the landlord cut off the hydro for a reasonable period to ensure the safety of electricians working in the building, this may have been a deliberate decision, but it was not done with the aim of harming tenants.
Normally, serving notices of termination or filing applications for eviction on more than one ground would not necessarily constitute harassment of the tenant by the landlord without other circumstances being present.
How to Determine the Degree of Harm
When a Member finds that the respondent engaged in actions against the tenant, they should consider the effects those actions would have on an average tenant. In other words, what effects would a reasonable person have expected the particular actions to have on an average tenant?
However, if it is proven that the respondent was aware of particular circumstances of this applicant which would aggravate the effects of the actions, those circumstances should be considered. For example, cornering a person in a parking garage and raising one's voice may be annoying to most tenants; however, to a tenant the landlord knows is vulnerable and lives alone, such an incident may be seriously disturbing.
The reasons behind the respondent's action, if known, would also be relevant. If the respondent was motivated by malice toward the tenant, the deterrent remedies should be ordered as well as compensation. However, if the respondent and the applicant were involved in a pattern of mutual recriminations, arguments and harmful actions, for which the applicant was at least partly responsible, this may indicate less serious remedies.
Abatement Orders
The starting point for deciding among the possible remedies is whether the landlord should pay an abatement of rent to the applicant. This is the principal remedy which compensates the tenant for the respondent's actions.
If a superintendent or agent is proven to have engaged in the actions, and not the landlord, an order for the landlord to pay an abatement may be made if the person who engaged in the actions was an employee, agent or officer of the landlord, whether or not acting properly under instructions from the landlord.
A superintendent or agent would not be ordered to pay an abatement of rent, since the tenant pays rent to the landlord; however, they may be ordered to pay compensation (see below under "other appropriate orders").
If a landlord has taken or permitted an action against the tenant, the Member should consider whether it was a single action or actions carried on over a period of time. If it was a single action which deprived the tenant of their tenancy, such as locking the tenant out of the unit or giving a notice of termination in bad faith, the Tribunal should consider this among the most serious means of harming a tenant, and the abatement could be from one to two months rent.
If the actions occurred over a period of time, the Member should consider the number of occasions and the total period of time. The abatement should generally be expressed as a portion of the rent which would reflect the seriousness of the expected effects on a tenant. Normally, this would be allowed for the periods in which the actions occurred. For example, for a serious case of harassment, an abatement of twenty-five to fifty per cent of the rent may be appropriate. In cases of minor (but not trivial) harassment, an order of between five and fifteen percent abatement would be more appropriate.
Orders Prohibiting Actions Against Tenants
Normally the order will direct the respondent not to engage in any of the listed activities against any tenant in the complex. However, in an appropriate case, the Member may limit the order: that is, order that the respondent not engage in a specific activity; and/or, mention only the applicant tenant and members of their household.
Whether this remedy is appropriate is not solely a question of whether there is evidence that the landlord has or has not engaged in similar actions against another tenant or tenants. The applicant will not normally bring forward evidence with respect to other tenants, and it will also be very difficult for the respondent to disprove.
The main test in deciding whether to order this relief is not even whether the tenant requests it (since a tenant who moved out may have little reason to ask for it), but whether it is in the public interest to deter this respondent from any further occurrence of actions against tenants. This is particularly true if the actions against the tenant threatened the health or safety of the tenant or a member of their household.
However, ordering this remedy alone will usually not be sufficient if the respondent's actions are of serious degree or duration. This is especially so since the tenant may find it difficult or expensive to enforce this type of order.
Orders Terminating Tenancies
There are several situations in which a tenancy may be terminated by the order.
If the tenant was induced to move out of the unit by reason of the landlord's actions, and the Member finds that moving out was reasonable in the circumstances, the tenancy should be ordered terminated, usually as of the date they vacated the unit. This will prevent the landlord from seeking any further rent from the tenant. The Member should order the landlord to repay the tenant all rent paid before the effective date of termination, including the rent deposit: for example, if the termination is June 15, and June rent and a rent deposit were paid, the landlord should pay 1 1/2 months rent to the tenant. The authority for such an order is "Other Appropriate Orders" (see below).
If both parties submit that a workable landlord and tenant relationship is no longer possible, termination may be ordered. It would be desirable if the parties would agree on appropriate terms and timing of the termination, which would avoid unintended financial consequences to one or both of the parties.
If the actions threatened the health or safety of the tenant or a member of their household, the tenancy should be terminated, regardless of whether the landlord agrees this remedy is appropriate. However, if the tenant wants to stay in the unit, this request should be honoured unless there is clear danger to the occupants of the unit.
If the respondent's actions put the tenant in a position that continuing the tenancy would not be reasonable, a request for this relief should be granted. For example, if the landlord cut off a tenant's heat in the winter out of spite, the tenant should be entitled to terminate the tenancy. In order not to put the tenant at a disadvantage compared to a tenant who moved out before applying, the Member might also order the respondent to pay the tenant's moving expenses, even if these have to be estimated.
Orders to Pay an Administrative Fine
An administrative fine is a remedy to be used by the Tribunal to deter landlords, superintendents and agents from engaging in similar actions in the future. However, this remedy should be used only in serious cases in which malice was the motivation or for which other remedies will not provide adequate deterrence.
It is unlikely that an applicant will ask for this remedy since the ordered fine is paid into the Tribunal as provincial revenue. The Member should therefore ask for the respondent's submissions regarding this possible remedy in any serious case. Submissions should be directed to the issue of deterrence, not the ability of the respondent to pay the fine.
An order for such a fine should not be made against a respondent landlord if the individual who engaged in the actions was not the landlord or their officer or employee, unless the landlord knew or should have been aware of the actions, and did not prevent them.
An administrative fine is not in the nature of a criminal penalty. Certainly, there is some similarity with criminal fines, such as the aim of deterrence. However, there are many differences, such as: no "criminal record" results from the fine; a criminal court would not consider such a fine as a prior offence; enforcement methods for collecting criminal fines are not available to the Tribunal; there is no alternative of jail time; and so on. Thus, the rules of criminal procedure do not apply. Nevertheless, the Member should be sure that, whenever an administrative fine might be ordered, the respondent is given a fair opportunity to make submissions about the remedy and the amount.
It would make little sense if the fines ordered by the Tribunal were greater than one would expect from a provincial offences court or punitive damages from the civil courts. Such comparisons would indicate a range of administrative fines to consider in determining an appropriate amount. If this is the first order against the respondent, deterrence may be achieved through an order in the range of $250 to $1,500, depending on the seriousness, duration and motivation for the actions. For a second order, a fine would be in the range of $1,000 to $3,000, and a subsequent order would be up to $10,000.
Other Appropriate Orders
The legislation allows the Tribunal to impose any other remedy which may be appropriate. The type of order which may be requested under this provision might include an order for the payment of money from a respondent other than the landlord or, if it is a corporation, one of its officers or employees. The tenant may request such an order if they were unable to prove that the landlord was aware or should have been aware of the actions of the respondent. However, the tenant may want both the landlord and another respondent to pay money for the wrongful actions.
The varied remedies listed in the Act and the specific reference to superintendents and agents lead to the conclusion that other remedies could include compensation orders against any respondent found responsible for actions against a tenant. In some cases this remedy may be granted in addition to an abatement ordered against the landlord.
Compensation for Future Rent and Moving Expenses
These remedies are limited to cases in which the applicant was induced by the actions to vacate the unit. Before this compensation is ordered, the Member must find that the actions would induce a reasonable person to move out of the unit. For example, if the respondent's conduct was sufficient to justify a finding of interference with reasonable enjoyment, but not of a degree that would cause an average tenant to vacate, moving expenses would not be ordered.
This is not a question of the tenant's motivation or good faith in moving out. For example, evidence that the tenant had other reasons for moving would not be relevant, such as wanting a bigger unit, a lower rent or a better situated complex. The issue is whether a reasonable tenant, faced by these actions by this respondent, would be expected to move out of this unit, in all of the circumstances.
Only the landlord may be ordered to pay this compensation. If it was the conduct of the superintendent or agent that induced the conduct, the evidence must establish that the landlord knew or should have been aware of the actions against the tenant. This would also include a case in which the person who engaged in the actions was an employee, agent or officer of the landlord, whether or not acting properly under instructions from the landlord.
This compensation is in addition to any abatement of rent or other remedies ordered.
The first claim could be for "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." The first question then is whether the tenant has actually rented another unit, and what the rent for that unit is. If the rent is higher, the total amount that could be ordered is the difference over a 12 month period. However, if the tenant has rented a larger unit or a better unit, the Member would consider evidence of the rents for similar units in the neighbourhood. The compensation could be limited to the lower amount which was available to the tenant.
Still, this is not a precise analysis which requires an exhaustive search by the tenant. If the tenant made a choice of a comparable unit, after a reasonable search, they should not be expected to have found the lowest rent possible. Further, the tenant cannot be expected to have rented another unit from the landlord in such a case, even at a lower rent.
In some cases, the tenant forced out of the unit will have temporarily found lower cost accommodation, and will be in this accommodation at the time of the hearing. This should not necessarily prevent the tenant from succeeding in a claim for higher rent. If the tenant has made a reasonable search for a similar unit, and can establish that they intend to rent that unit (e.g., through a rental application), they may make that claim, and it should be allowed if the rent is higher and they are making the claim in good faith. However, the time limit is 12 months after the tenant vacated the rental unit which is the subject of the application.
The second claim is for "reasonable out of pocket moving, storage and other like expenses. These are costs which the tenant has already incurred (and may be proven by bills or receipts) or will incur (and may be proven by contracts or quotations). However, for this claim to succeed, it is necessary for the tenant to have already left the unit before the hearing of the case, although it would also be made if the order terminated the tenancy. The term "other like expenses" would include other costs that were incurred in order to move into another unit, such as a fee to an apartment locating service or real estate service or expenses to move the telephone or cable service.
Interference resulting from maintenance, repairs or capital
improvements
Where it is alleged that a landlord substantially interfered with a tenant's reasonable enjoyment of a unit or complex while carrying out maintenance, repairs or improvements, the only remedy that the Tribunal will normally consider is an abatement of rent. It is unlikely that the Tribunal will consider it reasonable to order the landlord to stop doing the work. However, in some cases, it may be appropriate to consider an order for payment of the tenant's out of pocket expenses, an order terminating the tenancy or, where the tenant has been induced to move as a result of the activity, an order for payment of increased rent and moving expenses.
The amendment to section 208 of the Act contained in the Government Efficiency Act, 2001 provided the authority to make regulations that set standards and criteria to be applied where tenants claim that landlords have substantially interfered with their reasonable enjoyment of the unit or complex in carrying out maintenance, repairs or capital improvements to the unit or complex. The amendment also authorized regulations establishing criteria that must be applied by the Tribunal in determining whether to order an abatement of rent in these applications.
These standards and criteria are found in section 30.1 of O/Reg. 194/98, as amended. The regulation requires the Tribunal to consider the effect of the work on the tenant's use of the unit or the complex. It must be determined that the effect was unreasonable in the circumstances, before finding that there has been a substantial interference with the tenant's reasonable enjoyment of the unit or complex. If it is not found that the effect on the tenant was unreasonable in the circumstances, the application will be dismissed.
If it is determined that there has been a substantial interference, the regulation provides that the Tribunal shall not grant the remedy of an abatement of rent, regardless of the effect of the work on the tenant, if the landlord has met the seven conditions set out in the regulation.
Where it is determined that there has been substantial interference and that an abatement is not prohibited, the Tribunal will consider the five criteria set out in the regulation in determining whether it is appropriate to order an abatement and the amount of the abatement.
Any abatement ordered will not exceed 10% of the monthly rent for any month or part of a month in which there is substantial interference unless the specific circumstances exist as set out in the regulation. In such case, the Tribunal cannot order an abatement of rent that exceeds 100 per cent of the rent for each month or part of a month during which the Tribunal determines that the work substantially interfered with the tenant's reasonable enjoyment of the rental unit or residential complex.
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Notes:
* Amendments to the
Tenant Protection Act, 1997 in the Red Tape Reduction Act, 2000
Amended: October 7, 2002