s.126 — Application for above guideline increase

126 (1) A landlord may apply to the Board for an order permitting the rent charged to be increased by more than the guideline for any or all of the rental units in a residential complex in any or all of the following cases: 1. An extraordinary increase in the cost for municipal taxes and charges for the residential complex or any building in which the rental units are located. 2. Eligible capital expenditures incurred respecting the residential complex or one or more of the rental units in it. 3. Operating costs related to security services provided in respect of the residential complex or any building in which the rental units are located by persons not employed by the landlord.  ; (2) In this section, “extraordinary increase” means extraordinary increase as defined by or determined in accordance with the regulations. (3) An application under this section shall be made at least 90 days before the effective date of the first intended rent increase referred to in the application. (3.1) The landlord shall include with an application under this section a summary of each of the following, if applicable: 1. Any item in a work order that relates to one or more elevators in the residential complex and that has not yet been completed, regardless of whether or not the compliance period has expired. 2. Any item in an order made under section 21 of the Technical Standards and Safety Act, 2000 that relates to one or more elevators in the residential complex and that has not yet been completed, regardless of whether or not the compliance period has expired and regardless of whether the order was made against the landlord or another person or entity. 3. Any specified repairs or replacements or other work ordered by the Board under paragraph 4 of subsection 30 (1) that relates to one or more elevators in the residential complex and that has not yet been completed, regardless of whether or not the compliance period has expired. (3.2) A summary referred to in subsection (3.1) shall include the following information: 1. A description of the work that was ordered to be carried out. 2. The person or entity who was ordered to carry out the work and the time for compliance specified in the order. 3. The person or entity who made the order and the date the order was made. 4. Such additional information as may be prescribed. (4) If an application is made under this section that includes a claim for capital expenditures, the landlord shall make information that accompanies the application under subsection 185 (1) available to the tenants of the residential complex in accordance with the prescribed rules. (5) If an application is made under this section and the landlord has given a notice of rent increase as required, until an order authorizing the rent increase for the rental unit takes effect, the landlord shall not require the tenant to pay a rent that exceeds the lesser of, (a) the new rent specified in the notice; and (b) the greatest amount that the landlord could charge without applying for a rent increase. (6) Despite subsection (5), the tenant may choose to pay the amount set out in the notice of rent increase pending the outcome of the landlord’s application and, if the tenant does so, the landlord shall owe to the tenant any amount paid by the tenant exceeding the amount allowed by the order of the Board. (7) Subject to subsections (8) and (9) and except under the prescribed circumstances, a capital expenditure is an eligible capital expenditure for the purposes of this section if, (a) it is necessary to protect or restore the physical integrity of the residential complex or part of it; (b) it is necessary to comply with subsection 20 (1) or clauses 161 (a) to (e); (c) it is necessary to maintain the provision of a plumbing, heating, mechanical, electrical, ventilation or air conditioning system; (d) it provides access for persons with disabilities; (e) it promotes energy or water conservation; or (f) it maintains or improves the security of the residential complex or part of it.  ; (8) A capital expenditure to replace a system or thing is not an eligible capital expenditure for the purposes of this section if the system or thing that was replaced did not require major repair or replacement, unless the replacement of the system or thing promotes, (a) access for persons with disabilities; (b) energy or water conservation; or (c) security of the residential complex or part of it. (9) A capital expenditure is not an eligible capital expenditure with respect to a rental unit for the purposes of this section if a new tenant entered into a new tenancy agreement in respect of the rental unit and the new tenancy agreement took effect after the capital expenditure was completed. (10) Subject to subsections (11) to (13), in an application under this section, the Board shall make findings in accordance with the prescribed rules with respect to all of the grounds of the application and, if it is satisfied that an order permitting the rent charged to be increased by more than the guideline is justified, shall make an order, (a) specifying the percentage by which the rent charged may be increased in addition to the guideline; and (b) subject to the prescribed rules, specifying a 12-month period during which an increase permitted by clause (a) may take effect. (11) If the Board is satisfied that an order permitting the rent charged to be increased by more than the guideline is justified and that the percentage increase justified, in whole or in part, by operating costs related to security services and by eligible capital expenditures is more than 3 per cent, (a) the percentage specified under clause (10) (a) that is attributable to those costs and expenditures shall not be more than 3 per cent; and (b) the order made under subsection (10) shall, in accordance with the prescribed rules, specify a percentage by which the rent charged may be increased in addition to the guideline in each of the two 12-month periods following the period specified under clause (10) (b), but that percentage in each of those periods shall not be more than 3 per cent. (12) Subsection (13) applies to a rental unit if the Board finds that, (a) the landlord, (i) has not completed items in work orders for which the compliance period has expired and which are found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, (ii) has not completed specified repairs or replacements or other work ordered by the Board under paragraph 4 of subsection 30 (1) for which the compliance period has expired and which are found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161, or (iii) is in serious breach of the landlord’s obligations under subsection 20 (1) or section 161; and (b) the rental unit is affected by, (i) one or more items referred to in subclause (a) (i) that have not been completed, (ii) one or more repairs or replacements or other work referred to in subclause (a) (ii) that has not been completed, or (iii) a serious breach referred to in subclause (a) (iii).  ; (12.1) Subsection (13) applies to a rental unit in a residential complex if the Board finds that, (a) the landlord has not completed items in work orders for which the compliance period has expired and which relate to one or more elevators in the residential complex; (b) the landlord or another person or entity, as applicable, has not completed items in orders made under the section 21 of the Technical Standards and Safety Act, 2000 for which the compliance period has expired and which relate to one or more elevators in the residential complex; or (c) the landlord has not completed specified repairs or replacements or other work ordered by the Board under paragraph 4 of subsection 30 (1) for which the compliance period has expired and which relates to one or more elevators in the residential complex. (13) If this subsection applies to a rental unit, the Board shall, (a) dismiss the application with respect to the rental unit; or (b) provide, in any order made under subsection (10), that the rent charged for the rental unit shall not be increased pursuant to the order until the Board is satisfied, on a motion made by the landlord within the time period specified by the Board, on notice to the tenant of the rental unit, that, (i) all items referred to in subclause (12) (a) (i) that affect the rental unit have been completed, if a finding was made under that subclause, (ii) all repairs, replacements and other work referred to in subclause (12) (a) (ii) that affect the rental unit have been completed, if a finding was made under that subclause, (iii) the serious breach referred to in subclause (12) (a) (iii) no longer affects the rental unit, if a finding was made under that subclause, (iv) all items referred to in clause (12.1) (a) have been completed, if a finding was made under that clause, (v) all items referred to in clause (12.1) (b) have been completed, if a finding was made under that clause, and (vi) all repairs, replacements and other work referred to in clause (12.1) (c) have been completed, if a finding was made under that clause. ; (14) An order of the Board under subsection (10) with respect to a rental unit ceases to be of any effect on and after the day a new tenant enters into a new tenancy agreement with the landlord in respect of that rental unit if that agreement takes effect on or after the day that is 90 days before the first effective date of a rent increase in the order. (15) Subsections (3.1), (3.2) and (12.1) and subclauses 126 (13) (b) (iv), (v) and (vi) do not apply with respect to an application under this section if the application was made before the day subsection 22 (7) of the Rental Fairness Act, 2017 comes into force. (16) This section and any related regulations, as they read immediately before the day subsection 22 (1) of the Rental Fairness Act, 2017 comes into force, continue to apply with respect to applications for an above-guideline rent increase due in whole or in part to an extraordinary increase in the cost for utilities that are made before that day and have not been finally determined before that day. (17) In this section, “elevator” means an elevator intended for use by tenants.