Cao v. Iskander, Bahramian and Zeighami

Decision 1: Summary judgment, not trial — this is a document-driven case under Hryniak

The conventional response to a residential rent-arrears dispute exceeding LTB jurisdiction is to commence a Superior Court action and litigate to trial. With examinations for discovery, mediation, and pre-trial conferences, that route routinely takes 18–36 months. For a landlord whose tenant is in possession and not paying rent, every additional month is roughly $4,300 in further arrears.

We brought a motion for summary judgment under Rule 20.04(2)(a). The case was document-driven (lease, payment chart, undertakings from examinations) with no credibility findings required. The tenants’ own factum confirmed that “both parties agree that the issues can be determined in a summary judgment motion” (para. 22). Justice Vallee adopted that framing directly (para. 25): “No credibility findings are required. Both parties agree that the issues can be determined in a summary judgment motion.” The motion was heard May 2, 2025 and decided May 15, 2025 — 13 days from hearing to ruling, with a 7-day deadline for payment and a 7-day deadline for vacant possession.

Decision 2: Anchor on the lease’s plain text — section J prohibits self-help repair-deduction

The tenants’ entire substantive defence was repair-setoff: they had spent $38,128.83 on necessary repairs because the landlord could not be contacted. The natural defensive instinct is to engage on whether the repairs were actually necessary, whether the landlord did or did not respond to repair requests, whether the repair quotes were reasonable. We did not.

We anchored on the lease itself. Section J (“Maintenance and Repairs”) provided in plain terms: “The tenant must pay their rent even if they have problems with the maintenance and repair of their unit or property. If the tenant is having a maintenance or repair problem, the tenant should let the landlord know. If needed, the tenant can apply to the Landlord and Tenant Board.” Justice Vallee adopted that interpretation directly (paras. 28–29): “The lease term is clear: the tenants must pay rent even if there are problems with the maintenance and repair of the unit or property. There is a process for addressing maintenance or repair problems. The lease does not permit the tenants to conduct repairs and deduct the cost of them from the rent.”

Decision 3: Hold tenants to their burden of proving every dollar of repair payment — not merely the existence of repairs

Even with the lease language clear, the court left a small carve-out: because the lease lacked landlord contact information, the court would allow proven repair payments to be deducted as a matter of equity. The tenants claimed $38,128.83. Justice Vallee accepted only $1,536 of that — the amount actually proven by payment receipts.

That outcome was not accidental. At examinations for discovery in August 2024, the tenant Bahramian had given an undertaking to provide proof of payments. Months later, only $1,536 in receipts had been produced. We pressed that point in the motion record. Justice Vallee held (para. 29): “I will not allow the amounts of the other invoices because there is no proof of payment. The tenants ought to have known that the deductions from rent would be challenged and ought to have retained proof of payment.” The repair-setoff defence collapsed from $38,128.83 to $1,536 — a difference of $36,592.83 driven entirely by the tenants’ failure to satisfy their own evidentiary burden.

1. When residential rent arrears exceed the LTB’s $10,000 (or Small Claims) jurisdictional cap, summary judgment under Rule 20 is faster and cleaner than trial. Section 207(1) of the Residential Tenancies Act, 2006 permits the landlord to commence a proceeding in a court of competent jurisdiction when the claim exceeds the LTB cap. Hryniak v. Mauldin, 2014 SCC 7 directs that summary judgment be granted where a fair and just determination on the merits can be made without a trial. Document-driven landlord-tenant disputes — lease, payment record, undertakings — routinely qualify.

2. The lease’s plain text on repairs and rent obligations is the strongest defence to self-help setoff. Most standard-form residential leases contain language equivalent to section J of this lease: rent must be paid even when repair issues exist; repair concerns belong before the LTB or in a separate proceeding. Anchor on that text. Resist the temptation to engage on whether the repairs were actually necessary — that is a different debate that gives the tenant evidentiary footing.

3. Force the tenant to prove every dollar of claimed repair payment, not just the existence of repairs. Even where a court is willing to allow some repair credit (here, because of the landlord’s missing contact information in the lease), the burden is on the tenant to produce proof of payment. Press at examinations for discovery; demand receipts; build the record. Most tenants who have been making unilateral “repairs” for two years cannot produce documentation for most of their claimed expenditures — which is what collapsed the $38,128.83 claim into a $1,536 credit here.