Schell v. Clarke

Tenant wins · Wingham · 2020-11-26

Adjudicator

Backhouse, J.

Dispute

Illegal Rent Increase

Landlord

M.C.

Tenant

T.S.

Landlord rep

Philip Cornish

Tenant rep

Lucas Gindin

What happened

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 ruling

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.