Botar v. Mainstreet Equity Corp., 2012 ABQB 417

Court of Queen ’ s Bench of Alberta Citation: Botar v. Mainstreet Equity Corp., 2012 ABQB 417 Date: 20120626 Docket: 0603 15530 Registry: Edmonton Between: Andrew S. Botar Applicant - and - Mainstreet Equity Corp. Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] Mr.

Botar brought an application to deal with a number of issues related to a dispute with his landlord (Mainstreet Equity Corp.).

[1] Mr. Botar brought an application to deal with a number of issues related to a dispute with his landlord (Mainstreet Equity Corp.). The issues in this decision are whether the leases between the parties were valid and whether a number of rent increases imposed byMainstreet Equity Corp. (“Mainstreet”) were valid. Mr. Botar asserts that he has overpaid rent as a result of invalid leases and invalidrent increases, while Mainstreet responds that Mr.

Botar owes rent for the period of time during which he refused to pay any rent andduring the period during which these issues remained unresolved and the Court ordered rent be paid on an interim basis. My task here isto determine the validity of the leases in question, the rent increase notices, and to determine whether one party is owed payment andhow much. [2] Tenancy statutes, especially residential tenancy statutes, are very technical and, not unlike expropriation statutes, demandstrict precision - failure to follow them to the tee may mean that a lease or a notice for rent increase is not valid: Jones v.

Janz (1999),ABQB 433 (Master Alberstat); and Joma Sailaway Enterprises Partnership v. Holden, 2009 ABQB 739 (Manderscheid J.), and thecases mentioned by Manderscheid J. In Reference Re Residential Tenancies Act, (SCC), [1996] 1 SCR 186 (at para.104), MacLachlin J. (as she then was) noted that the purpose of residential tenancy legislation was to redress the power imbalance in thelandlord-tenant relationship.

Thus, while, in general, a defect in a tenancy notice may not be sufficiently significant to void the notice thatfailure to comply with the statutory provisions regarding rent increases, may render the notice void: Towers v. Malokhatko, [1995] O.J.No. 1704 (Ont. Court of Justice - General Division - Pitt J.) (at paras. 3, 10 and 13), s. 14(6) of the Residential Tenancies Act, S.A. 2004(RTA 2004) (in force effective November 1, 2004). II. Background Facts [3] On December 11, 2006, the Applicant, Andrew S.

Botar, filed an Originating Notice (amended on September 4, 2007)against Mainstreet claiming, among other things, rent overpayment due to alleged invalid rental agreements and invalid rent increasenotices. There have been many intervening proceedings between the parties since December 2006. [4] On May 25, 2007, Mainstreet filed an Originating Notice against Mr. Botar, in another action (0703-06753), claiming arrearsin rent from January 1, 2007, when Mr. Botar admittedly ceased to pay any rent, and seeking termination of Mr.

Botar’s lease for failureto pay rent. [5] On May 31, 2007, Master Breitkreuz consolidated the two actions, under the current action number. [6] On September 19, 2007, Master Wacowich issued an Interim Order (upheld, as an Interim Order, by Justice Lee, on October11, 2007, 2007 ABQB 608) requiring Mr.

Botar to pay Mainstreet rental arrears of $3,150 from January 1, 2007 to September 30, 2007,based on $350 per month, and fixing, on an interim basis, the monthly rent thereafter at $350 a month (which I understand has been paidsince that time) pending determination of the dispute between the parties in this action. [7] I should note that some of the prior decisions relevant to these actions reference a "trial" of the issues, but the consolidatedaction before me arises out of an Originating Notice, for which the procedure is a form of Special Chambers hearing, which wasconducted in this case, pursuant to my December 14, 2011 Order.

Therefore, the hearing resulting in this Decision is the final hearingand decision, subject only to appeal, relating to the validity of the leases and rent increases in relation to the tenancy between Mr. Botarand Mainstreet from the time Mainstreet became the landlord on December 1, 2000. The previous landlord, Nordel Holdings, is not aparty to any of the proceedings. [8] The background history leading to this Decision goes back over 17 years. There were three written leases - or purportedwritten leases - between Mr. Botar and Nordel, over the period May 1, 1995 to May 31, 2000, and Mr.

Botar has lived continuously inthe apartment building since 1995. [9] On or about April 29, 1995, effective May 1, 1995, Mr. Botar, became a tenant in the #12 unit in an Edmonton residential apartment block, [...], owned by Nordel Holdings (Nordel)[1]. Under the terms of the written lease (the first lease) between the landlord and tenant, the tenancy was for one month, and continued on a month-to-month basis thereafter[2], at a rent of $250 per month. [10] On January 1, 2000, Mr.

Botar and Nordel entered into a second written lease for unit #1, for a one month tenancy endingFebruary 28, 2000 and continuing on a month-to-month tenancy thereafter, at a rent of $350 per month. Mr. Botar admits this lease wasvalid. [11] However, there is, on first blush, some confusion in the amount of rent, as, although the sum of $350 per month is in the(mostly) typewritten rental amount clause, there is a handwritten term that the rent was to increase to $385 on February 1, 2000.

Itappears that the intent was that the rent was $350 on the date of the lease (January 1, 2000), but was intended (and agreed) to beincreased to $385 effective February 1, 2000. Mr. Botar claims that this part of the lease is not a valid rent increase because the landlorddid not provide three months notification. [12] However, I find that this argument fails because Mr. Botar expressly agreed, as a matter of contract, to the term of $385 per month, which he then paid.

S.M.Waddams in The Law of Contracts, 6th ed (Scarborough: Canada Law Books, 2010) at p. 106 noted: Similarly one who signs a document is ordinarily held to have thereby manifested assent to its contents, even though he may not haveread them or understood their meaning. This is not to say that in every case a signer is bound by a document he has signed. He may berelieved on the ground of unconscionability or mistake or on the ground that the true agreement of the parties is misstated.

The pointmade here is that it is not what the signer inwardly intends, but what he appears to a reasonable promise to that is relevant. I note that this makes no difference until December 1, 2000, because there are no issues between Mr. Botar and Nordel before that date

I note that this makes no difference until December 1, 2000, because there are no issues between Mr. Botar and Nordel before that date when Mainstreet became the landlord. [ 13 ] The second lease was subsumed by the third lease (and therefore of no further legal relevance thereafter, unless the third lease is not valid) on May 12, 2000, when Mr. Botar and Nordel entered into a third and final written lease, signed on behalf of the tenant but not the landlord, for apartment #1, for a one month tenancy ending May 31, 2000 and continuing on a month-to-month tenancy thereafter, at a rent of $385 per month. [ 14 ] Mr.

Botar reviewed, signed and received a copy of each of the first, second and third leases. No new written lease agreement was ever entered into by Mr. Botar and Mainstreet. Thus, the written lease agreement that exists between them (if any) is the third and final lease agreement, but for a month-to-month tenancy, unless it is invalid. [ 15 ] On or about December 1, 2000, Nordel sold the building to Mainstreet, which, by that fact, became the landlord as a matter of law: s. 65(1) of the Law of Property Act , R.S.A. 2000, c. L-7. III. Issues [ 16 ] Almost everything is or seems to be in dispute between Mr.

Botar and his current landlord, Mainstreet. More specifically in this Decision, the dispute is about the validity of the third lease and rent increases attempted to be implemented by Mainstreet since it became landlord. [ 17 ] As noted, I must determine the validity of the third lease. The first and second leases have no relevance, except background, if the third lease is valid since a new lease terminates a previous lease as a matter of law ( G 400 Holdings Ltd. (c.o.b. Only Womens Fitness Centres) v. Yeoman Development Co. , 2008 ABQB 667 (Romaine J.) (at para. 61 ).

If the third lease is invalid, the first and second leases may also then be relevant to determine what the appropriate rent was or should have been at any particular time. Thus, there are three issues before me: 1. whether the third lease is valid; 2. whether any of the notices to increase rent were valid; and 3. how much is owing and to whom. [ 18 ] Based on the evidence and argument before me, my analysis addresses these three issues and determines some additional facts (some for background only) and the legal conclusions that relate to them.

I note that I am focusing only on those facts that are relevant and material to the decision I need to make. IV. Validity of Third Lease [ 19 ] Mr. Botar argues that the third lease (executed May 12, 2000) is not valid because it was never signed by the landlord, as required by s. 16 (1) of the RTA 2000. However, RTA 2000 is not applicable to the third lease because that legislation was only effective from April 1, 2002 to October 31, 2004. Nevertheless, the same provision is present in the previous Act, the Landlord and Tenant Act , R.S.A. 1980 (LTA 1980), s. 15(1).

That provision requires that: If a residential tenancy agreement is in writing . . . the landlord shall . . . serve on the tenant a copy of the written residential tenancy agreement signed by the landlord . (Emphasis added). [ 20 ] Mr. Botar points to a May 17, 2000 letter, under which he claims to pay rent "under duress & under protest" because Nordel failed to sign the third lease. [ 21 ] He is correct that it was not signed by the landlord, but it was signed by him and he reviewed, signed and received it, and paid rent pursuant to it.

Moreover, he enjoyed the tenancy resulting therefrom. [ 22 ] I find that the landlord ’ s failure to sign the third lease does not make the third lease invalid. Rather, the only remedy that is available to a tenant to a lease that is not signed by the landlord is for the tenant, by virtue of s. 15(2) of LTA 1980, to withhold rent until he receives a signed copy: A tenant may withhold payment of rent until the tenant is served with a copy of the residential tenancy agreement under subsection (1). (Emphasis added). [ 23 ] Mr. Botar never received a signed copy.

However, he never exercised his right ( at any time ) to withhold paying rent. Rather, at all times thereafter, he paid rent (even if "under duress or protest") as required under the month-to-month tenancy under the third lease after May 31, 2000, until his objection to a rent increase in early 2006, which is dealt with infra . In the result, while he protested and paid "under duress", he never withheld rent which was his only right under the statute, while at the same time getting the advantage of the tenancy. [ 24 ] There was no lease signed by Mainstreet and Mr.

Botar; Mainstreet merely inherited the lease from Nordel upon becoming the landlord. Additionally, Mr. Botar never withheld rent from Mainstreet pursuant to either s. 15(2) of LTA 1980, or later under RTA 2000, although after his objection to the rent increase in 2006, he withheld the purported increase pursuant to other provisions of RTA

2004. [25] Estoppel is a contractual variation of enforcement of strict rights by the parties’ conduct. In Maracle v. Travellers IndemnityCo of Canada, (SCC), [1991] 2 SCR 50 at para. 13 the Supreme Court of Canada said: The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which wasintended to affect their legal relationship and to be acted on.

Furthermore, the representee must establish that, in reliance on therepresentation, he acted on it or in some way changed his position. [26] Romaine J. in G 400 Holdings noted that in Deerfoot Mall (Calgary) Ltd. v. Burt et al, (1987), 1987 ABCA 83 , 37 D.L.R. (4th) 429 (Alta.C.A.), the Court of Appeal held that estoppel applies to the landlord and tenant relationship. In the result, I findthat, having never withheld rent pursuant to s. 15(2) of LTA 1980, or s. 16(2) of RTA 2000, and having enjoyed the resulting tenancy,Mr.

Botar has, by his conduct, indicated his intention to affect the legal relationship, and is now, estopped from withholding rent underthat provision, notwithstanding his letter where he says he was paying same under duress or protest. [27] If I am wrong in the result, because of his claim of payment under duress or protest, his claiming the lease was not validwould not assist him because, at law, if it were invalid he would be a month-to-month tenant at the same rent of $385 per month, as amatter of law: s. 12 of LTA 1980, and/or s. 13 of RTA 2000. [28] Accordingly, the result is the same - either a month-to-month tenancy by the specific terms of the May 31, 2000 third lease,or a month-to-month tenancy by virtue of s.12 of LTA 1980 and s.13 of RTA 2000.

These provisions indicate that where the lease hasterminated, as the second lease did, and there is no subsequent lease, which would be the effect if the third lease was invalid, the tenancybecomes a month-to-month tenancy. The rent was $385 per month either under the third lease or the statute.

So, there is no real relevantdifference in the two alternatives of legal status. [29] Nevertheless, even if the proper conclusion in law were that the statute, rather than the lease, provided month-to-monthtenancy, it seems preferable to follow the terms and provisions of the lease agreed to by the parties, in fact, even if not signed by thelandlord.

This is because the lease contains other terms relevant to the parties such as parking, furniture, security deposit, and other terms(mostly identical to all three leases) by which the landlords and tenant have operated under for more than 17 years. [30] Thus, I find that there is a valid month-to-month tenancy on and after May 31, 2000 between Mr. Botar and Nordel, and fromDecember 1, 2000 between Mr. Botar and Mainstreet, which continues to the current time, whether by lease or statute. V.

Limitations Act [31] Mainstreet argued that the Botar claim regarding the third lease was statute barred by the Limitations Act. Mr. Botarreferenced that Act (R.S.A. 2000, s. 3(1)), claiming that he did not know of the legal right to commence an action until late August 2006and commenced his action on December 11, 2006, within a few months of gaining this knowledge. He claims, in effect, that he did notknow of the "injury" to which he seeks relief before. Mainstreet argued that this is not ignorance of a fact of injury, but ignorance of thelaw. [32] Mr.

Botar argues that even a mistake/ignorance of the law protects tenants in such situation, relying on Re DiPetta andMardarowicz, (1989) (ON SC), 69 OR (2d) 143 (MacDonald D.C.J.), in particular at p. 146. He also relies upon theobservations of Seidel v. Kerr, 2003 ABCA 267, at paras. 42 - 44, regarding continuing conduct. However, I will proceed to theconclusions in my Decision on the merits otherwise applicable - as if there is no limitations issue, that is, without determining thisdispute under the applicable limitations legislation (ss. 3(1) and 3(2) of the Limitations Act, RSA 2000, c.

L-12) that applied between thedate of the third lease on May 12, 2000 and the commencement of Mr. Botar’s Originating Notice of Motion on December 11, 2006. VI. Rent Payable under the Third Lease or Statute [33] The next issue is the rent payable for the month-to-month tenancy under the third lease, or, alternatively, pursuant to statute,from time to time. [34] It is clear from the face of the third lease that the rent thereunder is $385, and thus the rent payable since May 1, 2000 is aminimum of $385, plus any valid rent increases issued since that time.

Alternatively, the rent at the end of the second lease was $385,and if the third lease is not valid, rent in that amount still continued, as a matter of law, under s. 12 of LTA 1980. Thus, the rent payableat May 1, 2000 is $385 under either scenario. [35] In the result, I find that the rent at the time Mainstreet became landlord on December 1, 2000 was $385 per month. [36] On December 16, 2000, Mainstreet served on Mr.

Botar a first notice of rent increase, dated December 18, 2000, declaring a rent increase effective April 1, 2001 (more than three months after the date of the notice[3]) setting the rent at $475 a month. [37] Mainstreet claims that the notice "contained the electronic signature ‘The Management’". The notice identifies the landlord asMainstreet and at the end says "Yours truly, The Management" (this script is identical to the document). However, Mr. Botar argues thatit was not signed as required by RTA 2004.

[ 38 ] This argument fails because RTA 2004 was not in effect until November 1, 2004, and there is no provision in the applicable LTA 1980 (effective until April 1, 2002), or the later RTA 2000, that requires a rent increase notice to be signed by the landlord. It was not until November 2004, and the implementation of s. 14(2) of the RTA 2004, that a rent increase notice required a signature. Thus, any notice before that date does not require a landlord’s signature to be valid.

Therefore, that initial rent increase is valid, effective April 1, 2001 to $475 per month and I need not consider the arguments regarding whether the notice was signed. Indeed, Mr. Botar paid rent pursuant to this notice. [ 39 ] A year later, on December 31, 2001 (still within the provisions of LTA 1980), Mainstreet served a second notice of rent increase, dated January 1, 2002, on Mr. Botar declaring a rent increase from $475 to $500, effective April 1, 2002 (three months after the date of the notice, and more than six months after the last rent increase effective April 1, 2001 [4] ).

This bears the written name of the then Operations Manager and what appears to be his initials - specifically, the notice ends with the words "Yours truly, Mainstreet Equity Corp.", below which appears written in ink, " D.R. ", and below that appears in type "Don Rever, Operations Manager".

However, because there is no requirement in LTA 1980 that the notice be signed, I need not consider the arguments about the signature. [ 40 ] Thus, I find the second rent increase notice valid to raise the rent to $500 per month effective April 1, 2002 (the same date as RTA 2000 came into effect, also without a requirement that a rent increase notice be signed). Again, Mr. Botar paid the rent as increased. [ 41 ] Four years later, on January 28, 2006, Mainstreet served a third notice of rent increase on Mr.

Botar, dated January 27, 2006, declaring a rent increase from $500 to $570 effective May 1, 2006 (more than three months after the date of the notice and more than one year after the last increase [5] ). However, by this time, the provisions of s. 14(2) of the RTA 2004, did require a signature. This notice bears the following writing at the end: Kind Regards, Linda Smith, Edmonton Regional Manager, Mainstreet Equity Corp.... [ 42 ] Mainstreet admits that it "does not contain a person ’ s signature". While Mainstreet maintains that this writing constitutes a "signature" in law, I find that it does not.

In that regard, Mr. Botar relies on Webster ’ s New World Dictionary (no year or cite provided) for a definition of a signature as "a person ’ s name, hand-written by that person". I accept that definition, and find that this is clearly not "hand-written by that person". [ 43 ] Let me pause to note that there may be other handwritings (such as initials) that might meet the signature requirement, although not relevant here, because there is no handwriting.

Specifically, I know of nothing in law that states how a person must sign a signature - indeed, many signatures are not even legible (see, for example the purported signature of Travis J. Mynzak in the August 29, 2006 fourth notice, as produced at Tab 24 of Mr. Botar ’ s brief). Thus, even an initial, if handwritten, may mean that the notice has been "signed" as required by RTA 2004. To add to this, it seems to me that a signature is something handwritten by a person that causes that person to identify himself/herself as the person signing. It does not have to be a full name.

Future cases can pursue this when relevant. [ 44 ] Again, similar to the first and second rent increase notices, Mr. Botar acknowledged in questioning that he received the notice, that he knew that Mainstreet served it, and that he initially believed he had to pay the increased rent. Normally, if the tenant, on receiving a valid notice of a rent increase, fails to give notice to terminate under s. 14(5) of RTA 2004, he would be "deemed to have agreed to the increase in rent" [6] .

However, that does not answer the question in this case because, rather than acquiescing in the notice and paying the increased rent, on April 30, 2006, before the increase was to take effect, and rather than terminating his tenancy under a valid rent increase, Mr. Botar served Mainstreet with an objection to the rent increase based on an alleged invalid notice.

In his notice he pointed out that under RTA 2004, section 14(2) provides that a notice of rent increase "must be ... signed by the landlord", and, confirming his acquiescence in previous rent increases, stated that he would "continue to pay the rent for my apartment suite at the same rate ( $500 /month ) as before, until a legally valid Rental Increase notice is received." (Emphasis in original). Thus, as he argues, relying on s. 14(6), "A notice of increase in rent that does not comply with or is not given in accordance with this

section is void". He makes reference to the cases that come to the same conclusion under this or similar legislation: Joma (supra) , where Manderscheid J. upheld Myers, P.C.J. ( 2009 ABPC 196 ). I agree. [ 45 ] As, contrary to statute, the notice was not signed, and Mr. Botar did not acquiesce to the increase, I find that the notice was invalid, and that the rent remained at $500 per month. [ 46 ] Eight months later, on August 31, 2006, Mainstreet served on Mr.

Botar a fourth notice of rent increase, dated August 29, 2006, declaring a rent increase from $500 (therefore some acquiescence by Mainstreet of the lack of validity of the third rent increase notice and the validity of the objection of Mr. Botar to pay more than $500 per month) to $625, effective December 1, 2006. This notice ended like the third rent increase notice, although the name of the Regional Manager had changed.

However, in any event of the signature, Mainstreet suggested in its brief that this notice was "invalid because less than 365 days had passed since the last rent increase", Mainstreet quoting s. 3(1) (

b) of Residential Tenancies Ministerial Regulation , Alta. Reg. 211/2004. This is also provided for in s. 14(4) of the RTA 2004. Presumably Mainstreet took this position because it was relying on the validity of the third rent increase to have been effective May 1, 2006. [ 47 ] However, as noted above, I did not find that third rent increase notice was valid. I found that the last valid rent increase was to $500 a month effective on April 1, 2002. Therefore, this fourth increase was more than one year later and accordingly would be valid (if signed).

Thus, the timing issue is not fatal. [ 48 ] That leaves the issue of whether the notice was signed as required. The facts are not clear on this - the document from

Mainstreet (presumably from its file) is not signed (Mainstreet ’ s Brief, Tab 9 and Mr. Botar ’ s Brief, Tab 20). However, Mr. Botar says that he received a copy pursuant to an undertaking from Mainstreet on August 27, 2007, which was signed (Mr. Botar’s Brief, Tab 24).

In face of this contradictory evidence, I find that Mainstreet has not met the onus on it to prove that the notice was signed when it was served . [ 49 ] Therefore, I find this purported fourth rent increase is not valid because it was not signed, not because it was served within a year of the last increase. [ 50 ] Finally, on February 28, 2007, Mainstreet served on Mr.

Botar a fifth notice of rent increase, dated February 29, 2007, declaring a rent increase to $670 a month effective June 1, 2007 (thus meeting the three months notice as required under s. 14(1) of the RTA 2004), signed by Don Murray, VP Operations of Mainstreet (as required by s. 14(2) of the RTA 2004). Section 14(4) and s. 3 of the Regulations under the RTA, both require the passage of a year since "the last increase in rent".

Mainstreet did not admit that this notice was invalid - indeed, it did not address it in its brief, but in oral argument submitted that they had argued before Master Wacowich that it was valid. However, Mr. Botar submitted that it was invalid because there was less than the minimum required one year interval between notices. Mr. Botar did not object to it at the time, because the matter was already in litigation and he was already withholding rent from January 1, 2007.

In oral arguments, he admitted that the notice was, in itself, valid, but argued that it was invalid because of the argued invalidity of the third lease, an argument which I have rejected. [ 51 ] I find that all of the requirements of RTA 2004 had been met in this fifth notice: the rent increased to $670 a month effective June 1, 2007.

The last valid increase was under the January 1, 2002 notice that took effect on April 1, 2002, almost 5 years earlier. [ 52 ] Specifically, I find that a notice that is issued less than a year after the last invalid notice does not prevent that notice from being valid if it is issued more than a year after the last valid notice.

In other words, a invalid notice does not start the one year clock running, but rather the clock runs from the last valid notice. [ 53 ] Moreover, there is nothing in law of which I am aware, nor in the order of Master Wacowich or the appeal decision of Justice Lee, which prevents a valid notice of rent increase being issued in accordance with the statute, while the matter of the validity of previous notices is in dispute and in litigation. [ 54 ] Thus, there are no rent overpayments owing to Mr. Botar. On the contrary, there are rent underpayments owing to Mainstreet. VI.

Conclusion - Rent Owing, Interest Payable and Costs [ 55 ] In conclusion and

summary, I find that the third lease, dated May 12, 2000, is valid for a month-to-month tenancy [7] , and that the rent per month thereunder, pursuant to valid rent increase notices was and is: a. December 1, 2000 – March 31, 2001- $385 a month; b. April 1, 2001 – March 31, 2002 - $475 a month; c. April 1, 2002 to May 31, 2007 - $500 a month; and d. June 1, 2007 - present - $670 a month. [ 56 ] Thus, Mainstreet will have a judgment for rent calculated at these amounts, less amounts paid. It appears that those amounts were paid monthly until December 31, 2006.

Thereafter, the Order, on an interim basis, of Master Wacowich (upheld by Justice Lee) was $350 per month from January 1, 2007, and a judgment in that amount was given (and, I presume, paid) effective to September 30, 2007.

On that understanding the interim order of $350 per month effective January 1, 2007, would be short by $150 per month for 5 months, equalling $750 to May 31, 2007, and short by $320 per month for 61 months from June 1, 2007 to June 30, 2012, equalling $19,520, for a total of $20,270. [ 57 ] The third lease does not provide for payment of interest on underpayments, but clause 13 provides for a $25 service fee for late payment. I believe that this was intended to only be a one-time charge for late payment and not for amounts owing over time, as in this application.

I conclude that this fee does not apply here. [ 58 ] Mainstreet claims interest under the Judgement Interest Act , R.S.A. 2000, c. J.-1 , and I therefore direct that Mr. Botar shall pay simple interest, on an annual basis on the amounts owing at the end of each calendar year to the date of judgment. Interest thereafter will continue under the same Act until paid. [ 59 ] As to costs, Mainstreet sought solicitor-client, or alternatively party-party costs.

The lease provided (clause 14) that the tenant shall "pay all lawyers ’ fees and expenses of the Owner incurred in enforcing any of the obligations of the Tenants under this lease". The parties may speak to costs payable - indeed, knowing these parties that will undoubtedly spawn another set of hearings. However, recognizing there was mixed success in this case, with a view to preventing further cost and litigation, in the absence of submissions to the contrary, I would award Mainstreet costs in a minimum of Column 1 of

Schedule C to the Alberta Rules of Court for all proceedings since the filing of the Mr. Botar’s Originating Notice relating to the validity of the leases and the amount of rent, less any costs previously awarded and paid on those issues. If this result is accepted without submissions, the amount may be agreed between the parties or assessed by the assessment officer, and the parties may return to the Court for determination of any issue beyond the

jurisdiction of the assessment officer. If the minimum result is not accepted by the parties, I will hear further submissions on the claim for up to the amount of solicitor client costs. Heard on the 28 th day of March, 2012. Dated at the City of Edmonton, Alberta this 26 th day of June, 2012. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Andrew S. Botar Self-Represented Christopher D.C. Ruttkay for the Respondent [1] It is presumed, as a matter of legal status, that Nordel was a limited company, but the documentation does not make that clear. [2] Such a month-month is specifically provided for by the terms of each of the three leases discussed herein.

Section 13 of Residential Tenancies Act , R.S.A. 2000 ("RTA 2000") is not applicable (except perhaps the third lease - see infra ) because its provisions only apply to a situation where a lease has terminated or is not in effect, whereas here the leases specifically purport to continue on a month-to- month basis. [3] RTA 1980 (s. 13(1)) required a three month notice for a rent increase.

There was never any argument, and I do not find, that the notice time provisions were inadequate in the notices until the arguments pertaining to the fourth notice which, by virtue of s. 14(4) RSA 2004, and applicable regulations (see infra ), was a year ’ s notice. [4] The 6 month gap between rent increases ( s. 3 (

b) of the Residential Tenancies Ministerial Regulation , Alta. Reg. 229/92, under the LTA 1980) is not in dispute. [5] 5 As required by s. 3(1) (

b) of the Residential Tenancies Ministerial Regulation , Alta. Reg. 211/04, under s. 14(8) , consistent with the statutory provisions of s. 14 ((4) of the RTA 2004, is not in dispute. [6] Mr. Botar ’ s argument that this provision does not apply, relying on the Edmonton Landlord Tenant Advisory Board and the Alberta Residential Tenancies Dispute Resolution Service statements to the contrary, is without merit because he could not provide anything that supported those assertions, which, even if he had, would not be binding on me.

However, this is no problem for him because he is successful on this notice for other reasons. [7] 7 Alternatively, had I found it invalid, the result as to the rent owing under valid notices of rent increases under a statutory, as opposed

to a lease, month-to-month would result in the same conclusion for the reasons stated above.