Last updated: August 6, 2024
Ordered by Tribunals Ontario under Section 69, Residential Tenancies Act 2006
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Citation: Schell v. Clarke, 2020 ONSC 7169
File Number: 34/18
Tenancy End Date
Apr 2017
Hearing Date
Nov 2020
Order Date
Nov 26, 2020
The Divisional Court allowed the tenant's appeal and referred the matter back to the LTB to determine whether the parties and premises changed under the written agreement, such that the exceptions in Honsberger would apply. The LTB was also directed to determine the amount owing if the rent increase was illegal and whether the limitation period under s.135.1(2) of the RTA applies.
Tenant appealed a decision by the Landlord and Tenant Board dismissing her claim for reimbursement of monies paid pursuant to an alleged illegal rent increase. The tenant rented a house from the landlord from May 1, 2015 to April 21, 2017. In February 2016, the parties negotiated a rental increase from $650 per month to $850 per month, but the landlord did not serve a notice of rent increase. The LTB found that this was an express agreement and not an illegal charge. The tenant appealed, arguing that the real substance of the transaction was to preserve the tenancy, not to end it.
The written agreement changed the oral agreement by (a) allowing the tenant's spouse to be an occupant of the house and (b) allowing the tenant to rent the garage, which were not parts of the oral agreement.
The real substance of the transaction was to preserve the tenancy, not to end it. The fact that her spouse was not named as a tenant and no monetary value was attached to the use of the garage underscores that the real substance of the transaction was to deter the landlord from his plan to sell the rental unit and not to create a new tenancy.
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