When the Rent Increase may be Taken
30.1 (1) This section applies for the purposes of section 26, paragraph 6 of subsection 32 (1) and subsection 35 (1) of the Act, (a) in determining whether a landlord, in carrying out work in a rental unit or a residential complex, substantially interfered with the reasonable enjoyment of the unit or complex for all usual purposes by the tenant of the unit; and (b) in determining whether it is appropriate for the Tribunal to order an abatement of rent and the amount of any abatement. O. Reg. 268/02, s. 1. (2) In this section, “eligible work” means work, (a) that is necessary to protect or restore the physical integrity of the residential complex or part of it, (b) that is necessary to maintain maintenance, health, safety or other housing related standards required by law, (c) that is necessary to maintain the provision of a plumbing, heating, mechanical, electrical, ventilation or air conditioning system, (d) that provides access for persons with disabilities, (e) that promotes energy or water conservation, or (f) that maintains or improves the security of the residential complex; (“travaux admissibles”) “landlord” includes a superintendent and an agent of the landlord; (“locateur”) “tenant” means, in respect of a rental unit, the tenant or a former tenant of the unit or a member of the household of the tenant or former tenant; (“locataire”) “work” means, in respect of a rental unit or a residential complex, maintenance, repairs or capital improvements carried out in the unit or complex; (“travaux”) O. Reg. 268/02, s. 1. (3) In determining for the purposes of subsection 35 (1) of the Act whether there was substantial interference with the reasonable enjoyment of a rental unit or residential complex, (a) the Tribunal shall consider the effect of the carrying out of the work on the tenant’s use of the rental unit or residential complex; and (b) the Tribunal shall not find that the carrying out of the work constituted a substantial interference with the tenant’s reasonable enjoyment of the unit or complex unless the Tribunal finds that the carrying out of the work constituted an interference with the tenant’s use and enjoyment of the unit or complex that was unreasonable in the circumstances. O. Reg. 268/02, s. 1. (4) If the Tribunal finds that there was substantial interference with the tenant’s reasonable enjoyment of the rental unit or residential complex, the Tribunal shall not order an abatement of rent if all of the following conditions are satisfied: 1. The landlord gave notice in advance to the tenant, concerning the work to be carried out. 2. The notice mentioned in paragraph 1 was reasonably accurate and comprehensive in the circumstances and at the time it was given and was given in a reasonably timely manner. 3. The work is eligible work. 4. If required under the Building Code Act, 1992, a permit was issued in respect of the work. 5. The work was carried out at reasonable times, or if a municipal noise control by-law was in effect, during the times permitted under the noise control by-law. 6. The duration of the work was reasonable in the circumstances. 7. The landlord took reasonable steps to minimize any interference resulting from noise associated with the work. O. Reg. 268/02, s. 1. (5) If the Tribunal finds there was substantial interference with the tenant’s reasonable enjoyment of the rental unit or residential complex and an abatement of rent is not prohibited under subsection (4), the Tribunal shall consider the following in determining whether it is appropriate to order an abatement of rent and the amount of the abatement: 1. The nature, duration and degree of interference with the tenant’s reasonable enjoyment caused by the carrying out of the work. 2. Whether the tenant is responsible for any undue delay in the carrying out of the work. 3. The steps taken by the landlord during the work to minimize interference with the tenant’s reasonable enjoyment. 4. Whether the tenant has taken advantage of any service provided by the landlord or arrangement made by the landlord that would minimize interference with the tenant’s reasonable enjoyment. 5. Whether a failure to carry out the work could reasonably be expected to result in any of the following within a reasonable period of time: i. Interference with the tenant’s reasonable enjoyment of the rental unit or the residential complex. ii. A reduction or discontinuation of a service or facility. iii. Damage or additional damage to the rental unit, the residential complex or anything in the unit or complex. iv. Risk to any person’s health or personal safety. v. A breach of subsection 24 (1) of the Act by the landlord. O. Reg. 268/02, s. 1. (6) Except as permitted under subsection (7), no abatement of rent shall exceed 10 per cent of the monthly rent for each month or part of a month during which there was substantial interference with a tenant’s reasonable enjoyment of the rental unit or residential complex. O. Reg. 268/02, s. 1. (7) The Tribunal shall not order an abatement of rent that exceeds 10 per cent of the monthly rent for a rental unit unless, (a) the Tribunal considers a larger abatement to be warranted in the circumstances because the substantial interference with the tenant’s reasonable enjoyment far exceeded the level that would normally be expected, taking into consideration all of the relevant circumstances; and (b) the Tribunal is satisfied that, (i) the work is not eligible work, (ii) the work was carried out at unreasonable times or at a time that is not permitted under any applicable noise control by-law, (iii) the work was carried out in a manner that contravened a condition or requirement of a building permit issued under the Building Code Act, 1992, (iv) the work was carried out over a period of time far in excess of the amount of time that normally would be required, after taking into consideration any exceptional circumstances beyond the control of the landlord, including weather-related delays, delays in obtaining necessary government approvals or permits and delays caused by market shortages of suitable goods or services or qualified labour at reasonable costs, or (v) the landlord refused to take reasonable steps during the work to minimize interference with the tenant’s reasonable enjoyment of the rental unit or residential complex. O. Reg. 268/02, s. 1. (8) The Tribunal shall not order an abatement of rent that exceeds 100 per cent of the monthly 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. O. Reg. 268/02, s. 1.