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Real Estate Litigation and Appeal: Onyskiw v. CJM Property Management Ltd.

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*Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477

“The appellant tenants brought an application under s. 29(1)1 of the Residential Tenancies Act, 2006 (“RTA”) for a rent abatement based on an alleged breach of the landlord’s duty under s. 20(1) of the RTA to maintain the apartment building in good repair after the elevator was out of service for a total of 96 days in one year. The elevator in the six-storey building was under a maintenance contract. It had passed all annual and monthly inspections and the licence had been renewed when the elevator broke down because of a latent defect. The landlord decided to replace the elevator, and in the interim, it took steps to get the elevator back in operation as quickly as possible. At one point during the relevant period, there was a province-wide elevator technician strike. The Landlord and Tenant Board chose to apply the board’s Interpretation Guideline 5, which provides that no abatement ought to be awarded where a deficiency has occurred due to a latent defect; the landlord has taken reasonable steps to remediate the deficiency; the landlord has a reasonable program of maintenance; and the land- lord has acted responsibly to rectify a problem that required extensive repairs. The board found that the landlord acted diligently in effecting repairs, arranged to have the elevator replaced as quickly as possible, and acted in a proactive manner by spending $30,000 in repair costs, $15,400 in labour costs for runners to assist tenants and $5,200 for an evacuation chair for use in emergencies. The board concluded that the landlord had fulfilled all of its contractual and statutory obligations, and dismissed the application. The Divisional Court affirmed that decision. The tenants appealed.

Held, the appeal should be dismissed.

The Divisional Court did not err in selecting reasonableness as the standard of review or in concluding that the board’s decision was reasonable. A landlord is not automatically in breach of its obligation to repair and maintain under s. 20(1) of the RTA as soon as an interruption in service occurs. The reasonableness of the landlord’s maintenance and repair efforts is a relevant consideration when determining whether the landlord has breached its duties under s. 20(1) of the Act. In this case, the latent defect, the difficulty obtaining replacement parts, the province-wide strike, and the length of time it took to install the new elevator were all matters beyond the landlord’s control. The board did not read into s. 20(1) a requirement that the tenants must prove the landlord acted unreasonably before a breach of the section could be found. Rather, it considered the entirety of the factual situation before it in determining whether the landlord breached its obligation under s. 20(1).”

*source: Ontario​ reports

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