Wednesday, 21 August 2013

Time Limits on Tenant Claims

It happens often enough that a tenant will feel that a landlord is failing to comply with his/her or its obligations under the Residential Tenancies Act.  At first, the tenant feels that the violations are minor and they just put up with it.  As time goes by, the violations increase or the situation does not get better and the tenant begins to increasingly resent the landlord's actions.  Finally, enough time passes, and the tenant feels that it is necessary to proceed with an application at the Landlord and Tenant Board. 

As the tenant sits down with the T2 (Tenants Rights Application) and/or the T6 (Maintenance Application), they begin to recall all of the things that the landlord has done that has made them mad and angry enough to be proceeding with a legal claim.  The inclination is to write everything down and to seek Orders--be it for rent abatement, a fine, repairs, compensation for lost property, moving costs--based on the totality of the tenant's experience in the premises since the problems began.

As an example of what I am talking about:  Let's presume a timeline of the tenant moving into the unit on January 1, 2012  and the tenant is sitting and filling in the T2 & T6 application on August 29, 2013 (length of tenancy to date is 1 year and 8 months).  In deciding what to claim, the tenant makes the following list of things that happened in the rental unit during the course of the tenancy:


CHRONOLGY OF EVENTS
  • January 14, 2012----flapper on toilet broke, landlord informed same day, landlord did not fix for 2 weeks;
  • January 26, 2012---tenant returned home to find superintendent in the unit doing an inspection because he forgot to do it when the tenant took possession.  No notice of entry--hence illegal entry;
  • February 17, 2012---Landlord turned the heat down during the day to 16 degrees in the building as he thought all the tenants were at work.  He turned it up again at 4:30 p.m..  When tenant complained he said the tenant should wear a sweater, turning the heat down is good for the environment--this continued for two months;
  • July 31, 2012,---the landlord disconnected the outside water faucet which the tenant had been using to water her vegetable garden.  When tenant complained, the landlord said he didn't want to pay for the water so he took away the service;
  • September 2012---landlord entered unit while tenant was at work and replaced the windows--wtihout any notice to the tenant.  The unit wasn't ready and the landlord broke two figurines on the window ledge that had great sentimental value to the tenant. 
  • December 2012,---the landlord informed the tenant that he would not be providing snow shovelling service this year to save on over-head.  He advises the tenant that the lease says nothing about him providing this service so the tenant should do it;
  • February 2013,--the landlord starts turning down the heat again to 16 degrees in the daytime (the tenant is at home with the flu and notices how cold it is);
  • March 18, 2013,---the tenant reports to the landlord that the freezer compartment in the fridge is not working--the landlord says he will replace the fridge in May when his budget will allow.
  • June 18, 2013,--the landlord still has not replaced the freezer/fridge and now the taps are dripping, there is a hole in two screens, and the tub does not drain properly.  The landlord says he will get to it (nothing happens for over three weeks)
  • August 24, 2013,--now the toilet doesn't drain properly either, the tub is basically blocked and the tenant got an email auto-reply from the landlord saying he was away on holiday until September 13, 2013.
The important information from the list above is the date that each problem/issue arose.  Certainly, the nature of the complaints is important as you can see how the complaints are legitimate.  However, you can also see how a tenant might just deal with the problem and suffer the consequences without taking any immediate action against the landlord.  In this example, it is the last item that is the proverbial straw that breaks the camel's back and the tenant now wants compensation and justice for everything the tenant has endured from the start of the tenancy.

The question is--can the tenant apply to the Landlord and Tenant Board for everything that is on the list above?  Strictly speaking, the Landlord and Tenant Board will NOT allow the tenant to make a claim for everything on the above list--based simply on the date that the issue arose.

Under the Residential Tenancies Act there is a 1 year time limit on being able to initiate a claim at the Landlord and Tenant Board for conduct that breaches the provisions of the RTA.  Specifically, the language of that limitation is found at section 29(2) of the RTA.

The applications for Tenant's Rights and Maintenance (T2 & T6) are founded in section 29 of the RTA as it is there that the Landlord and Tenant Board derives its authority to make findings that the landlord has done something that is contrary to the RTA.    Regardless of the other sections in the RTA, without section 29 (and the applications that are brought pursuant to it), a tenant would have no chance of getting the Orders and Remedies that he/she would normally seek.

Section 29(2) prohibits the filing of an application for any alleged conduct that arose MORE than one year prior to the date of application.  This means that the Landlord and Tenant Board will not entertain an application based on events that occured more than one year prior to the application date.  Hence for the purposes of bringing a claim to the Landlord and Tenant Board there is effectively a limitation period of one year.

In concrete terms, based on the example provided above (remember the T2 and T6 are being filed out on August 29, 2013)--the issues from July 31, 2012 and before that could not be included in the application (because they occurred more than one year before the filing of the T2 and T6 application).

Does this mean that any claim that is older than one year is automatically barred?  In one sense yes, but perhaps not.  Whether a Small Claims Court or Superior Court would entertain a claim for damages--for all of the breaches set out above is still a possibility.  As at the date of writing this blog, I am unaware of any dispositive authority that says that section 29(2) prescribes the right of action and not just the right to file an application at the Landlord and Tenant Board.  If I read the section correctly, and you can get a Court to entertain an Action (tenant v. landlord), I don't see section 29(2) as foreclosing a tenant's right to recover damages for the conduct complained about.


March 9, 2015


For those of you who have read this far.  There now appears to be some authority for the proposition that there is a one year limitation period for claims brought by tenants, against landlords, even in the Superior Court of Justice.  The case is Efrach v. Cherishome Living 2015 CarswellOnt 812, 2015 ONSC 472, 248 A.C.W.S. (3d) 494.  Note that this is a Divisional Court case and would be considered an appellate authority in Ontario.  I'm not yet convinced that the case is dispositive of all claims brought by tenants against landlords outside the one year period but it is certainly a case to be considered.  If you have a claim against a landlord it would be wise to commence the claim within the limitation period prescribed by the RTA if at all possible.









Michael K. E. Thiele
Ottawa, Ontario
Landlord and Tenant Lawyer
www.ottawalawyers.com

4 comments:

  1. Who is responsible to pay for alternate housing when restoration work is being done (in my case, 6 days) and the tenant does not have insurance. Is the landlord responsible to pay the total amount of the accommodation or the per diem amount of the existing tenancy. I can't seem to find a straight answer anywhere, so your assistance would be greatly appreciated. Also, a silly question but one I'm going to ask anyway.. for restoration work to go forward, the tenant's belongings needed to be moved. He was out of the country and authorized the restoration people to do so but when they sent him a quote, he declined and work could not proceed as a result. Later, he told my it was my responsibility to pay to have his belongings moved. I didn't think so simply in terms of liability issues, but your input would be appreciated.

    ReplyDelete
    Replies
    1. Hi Gerry: It would be useful to know the nature of the restoration work and why it is necessary. As you mention a lack of tenant insurance I assume the worked was necessitated by an external force and not just regular maintenance. In my view and this really is just my view/opinion, the tenant is required to cooperate with maintenance/restoration work and needs to move their own stuff at their own expense. If the nature of the work is rather extensive and urgent because the unit has become uninhabitable then I again think the tenant is on their own and have to pay their own expenses. This is especially the case if they were the cause of the incident that led to the damage requiring restoration. I don't think that you, as the landlord, have any obligation to temporarily re-house the tenant because of some event outside your control. In fact most leases confirm that the landlord is not responsible for losses arising from floods, tempest, etc.. Where you might find yourself liable is if the event that caused the damage was your fault. You would be liable not because you are the landlord but because you caused the event that led to the damage. In the same way, other tenants could be liable to other tenants if they cause the event that leads to the damage.

      I highlighted that the foregoing is my opinion because you can find cases from the Board that say the opposite. There are Board decisions, for example, that indicate that a landlord must move a tenant's property to prepare the unit for spraying for pests. Human rights considerations also come into play and can inform who has to do what.

      The fact is that the Residential Tenancies Act is not very helpful in situations where there is serious work that needs to be done but the tenant is entitled to remain in possession while it is being done. You can't require a tenant to leave no matter how much sense it makes. The exception is for instances where the work requires a building permit and vacant possession in which case an N13 (Notice of Termination for conversion, demolition, or repairs) may be served (120 day notice period). Where an N13 is served there is a possibility of some compensation, but that too is limited. Certainly their is no compensation for moving, paying for a new temporary place, or packing the tenants belongings. Often enough, in the context of an N13, the compensation is zero.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  2. I have another question related to a verbal agreement I have with a tenant wherein I agreed to reduce her rent by $100 per month in exchange for gardening in front of the house, a very small area about 12' by 18'. She has not held up her end of our agreement. The first time, I arranged to have it professionally done to give her a starting point which would be easier to continue with. This has been to no avail. Do I have any recourse?

    ReplyDelete
    Replies
    1. Gerry: Much can be made of how you state the nature of your agreement with your tenant. If, for example, you rented to the tenant for $1000 per month and then said to the tenant, "if you agree to maintain the garden I will pay you $100 per month" and you simply net out the exchange of money to $900 from the tenant then your monthly rent is still $1000.00. Described in this way, you have a lease and you have a second contract for services. To save yourself a giant headache this is the way it should always be done. If the tenant's services are lousy you can fire them and simply get the full rent. Making a tenant responsible for maintenance even for a reduction in rent is fraught with problems and possible illegality ( a bigger deal when the maintenance agreement requires the tenant to do work that has a safety aspect like shovelling the walk, clearing stairs, minor repairs).

      If the agreement is intertwined with the creation of the tenancy agreement then you may have to look at the sections on discounted rent to determine what the lawful rent actually is. You might find that the lawful rent is $900 regardless of the kind of job she does with the gardening.

      I've re-read your comment and I think you are describing a verbal agreement that is subsequent to the lease agreement. Hence, I think you can write the tenant, terminate her maintenance contract for failure to do it satisfactorily and require her to pay the lawful rent of $XXX. You in effect stop paying her the $100.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete

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Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.