Barristers and Solicitors	German Spanish

   G. Brounstein, for the Landlord/Plaintiff.

   G. Hodder, for the Tenant/Respondent.

   ZELINSKI J.:—

THE ISSUE

   Erinway Holdings ("Landlord"), seeks an order terminating its tenancy agreement with Mr. Barrette, ("Tenant"), and consequential relief, based upon its entitlement to maximum rents approved by the Minister of Housing ("Minister") which remain unpaid. The Tenant has not paid these rents on the basis that they are inappropriate by reasons of allegedly inconsistent findings of Carter, J.

   In its narrowest terms, the issue before me can be stated as follows:
 

Do I have the jurisdiction to go behind a rent, determined by the Minister to be appropriate, when there has been a finding of this Court that the rent payable by the Tenant ("actual rent") is less than the lowest prior maximum rent ("base rent") upon which the determinations of the Minister were made.

THE FACTS

   The parties have filed a Statement of Agreed Facts as follows:
 

1.		Lease commenced November 1, 1982 at rent of $620.00 per month.
2.		Lease was renewed in writing at $615.00 November 1, 1984. Subsequently never renewed in writing.
3.		Previous to 1990, there were several notices of rent increase, but none were valid.
4.		On November 9, 1988, in DCO No. 9210/88, Honourable Justice A.M. Carter confirmed the rent at $615.00 per month "until rent review sets increase."
5.		Landlord applied for rent review increase on September 1, 1987, pursuant to S. 74 "Application for Whole Building." In the application, the tenant's basic unit rent was stated to be $730.00 per month for 1987.
6.		The order was made on March 21, 1989, by a Rent Review Administrator, setting out increases as follows:

	base rent	%	gov't %	new rent	effective date
	---------	----	-------	--------	--------------

$670.00		nil		670.00		Nov. 1, 1985
670.00		6.00	4.0	737.00		Nov. 1, 1986
737.00		6.00	5.2	819.54		Nov. 1, 1987
819.54		6.00	4.7	907.23		Nov. 1, 1988
907.23		6.00	4.6	1003.40		Nov. 1, 1989

7.

The landlord served a notice of rent increase on approximately January 25, 1990, specifying a 59.9% increase in rent from $615.00 monthly to $1003.40 monthly.

   As disclosed by these facts, the finding of Carter, J., was that the actual rent was $615.00 per month, in November, 1986. This was lower than any finding of the Minister upon which rental increases were determined. Indeed, in November, 1985, the lowest year for base rent, that rent was $670.00. As a consequence of compounding, the maximum permissible rent on November 1, 1988, was $907.23. This was 9 days before the finding of Carter, J.

   Counsel for the Tenant acknowledges that there have been a number of sales of the apartment building in which the subject tenancy is situate and that, for this reason, no impropriety by the Landlord in its dealings with the Minister is suggested. Neither counsel could provide any insight into the manner by which the base rent set out in the exhibits filed with and emanating from the Minister was determined.

   The finding of Carter, J. was made on consent. No formal order incorporating this finding was ever taken out. Counsel for the Landlord suggests that, for this reason, I can wake an inference that the finding of Carter, J., was inappropriate. The issue that was before Carter, J. was whether a Notice of Termination was appropriate when that notice was : based upon arrears attributable to rent increases claimed by the Landlord but which had not yet been approved by the Minister. The decision of Carter, J. was apparently the last determination made in a series of proceedings based upon similar grounds.

   The significance of the initial rent, as determined by the Minister, is substantial because of the compounding effect of subsequent percentage increases. Any inappropriate excess rent is also compounded. There was no appeal by the Tenant from the findings of the Minister.

   The Tenant asserts that no arrears based upon any increase allowed by the Minister should be recognized by me. His argument is that the base rent determined by the Minister was too high, as established by the findings of Carter, J. Succinctly, he states that the Minister does not have the authority to vary an Order of this Court, which was not appealed, and that the decision of the Minister must be construed as a collateral attack upon a finding of this Court whether made in ignorance of that finding, or in defiance of it.

   In default of a finding that no increase is appropriate, it is suggested that I should re-calculate the appropriate new maximum rentals for the subject premises on the basis of the percentage increases allowed by the Minister calculated on an initial base rent in the amount of $615.00 per month.

THE LAW

   S. 82(2) of the Residential Rent Regulation Act, 1986, ("Act") provides for equalization of rents within larger residential complexes. The Act contemplates that a Landlord is entitled to an appropriate rental return for the entire building. s. 33(i) of the Act provides that, subject to an appeal, an order of the Minister "is final, binding and not subject to review". Part 7 of the Act sets out the appeal procedure.

   In Re Mascan Corp. and Ponzi et al. (1987) 56 O.R. (2d) 751 at 767-8 Griffiths, J.A. stated:
 

	I consider it an abuse of the process of the court to permit these proceedings to continue to challenge notices of rental increase given during the year between 1977 and 1983 when such issues could have been resolved by the commission, if timely objection had been raised.
	For other reasons, I believe that what amounts to a collateral attack on the decisions of the rent review tribunals, should not be allowed. In outlining the background facts I have stressed that the rent increases brought into question were fixed by the appropriate statutory tribunal on proper notice to the tenant and after a full hearing. The tenant had the right to oppose the increase at the hearing of first instance and under s. 117 of the Act to appeal to the full commission and finally under s. 118 to appeal further to this court, on a question of law ...
	In each instance when the rent review officer or commissioner increased the rent payable he was first required to consider the appropriate base rent and then determine what increase if any should be allowed on that base. If the tenant had taken the position that the base rent was wrong and in fact the rent charged as base was void because of defective previous notices of rent increase, then that issue could have been resolved by the commission ....
	It is a fundamental principle, that where any judicial tribunal having proper jurisdiction gives judgment then that judgment will be res judicata not only as to the point actually decided but also with respect to any other issues necessary to the decision:  see Bauer and Turner, The Doctrine of Res Judicata, 2nd ed. (p. 152).
	Here the base rent in each case was cardinal to the decision and must be taken to have been conclusively decided and any increase thereof validly granted. Whether on the basis that it is issue estoppel or res judicata the tenants should not now be entitled to call into issue again the very matter that was before the rent tribunal and essential to the final determination by those tribunals.

   Mr. Hodder, on behalf of the Tenant, argues that the case before me must be distinguished from Re Mascan on the grounds, essentially, that if the principles of res judicata have application it is the Minister who is bound by the determinations of this Court.

   With respect I must disagree. The finding of Carter, J. contemplated that the rent, as determined by him, would terminate when "rent review sets increase". As previously noted the decision of Carter, J. was arrived at on consent rather than on evidence. Most importantly however, implicit in the Tenant's argument is the conclusion that, at least in the first determination of the Minister, the base rent must be the actual rent. This is not necessarily so. The words "base rent" do not appear in the Notice of Phase In which is the Minister's release which gives rise to the "Agreed Facts." In that document (Exhibit #5), there are references to "prior maximum rents" and "new maximum rents" for the "basic unit." Additional charges and allowances are made each year, commencing with the preceding "prior maximum rent." No evidence has been given in this proceeding as to the basis upon which the Minister determined the initial "prior maximum rent". Indeed, the very words "prior maximum rent" which are used in the Notice suggest that the maximum rent which can be charged in the relevant year may differ from the rent actually charged. It contemplates the maximum rent which is appropriate. It can be based upon considerations which may relate to equalization of rents and proper returns for the building. In other words, we do not know whether the actual rent found payable by Carter, J. has been adjusted by considerations deemed appropriate by the Minister. I am therefore bound by Re Mascan. If the Tenant wished to dispute the findings of the Minister, he should have done so in the manner permitted under the Act.

   The maximum rent permissible at this time specifies an increase in January 1990, of 59.9% over what had previously been paid. Initially this seems unreasonable, however, it must be remembered that this is the result of maximum percentage increases based upon annual increases which the Minister has concluded will allow the Landlord a return which is justified on the basis of the Landlord's investment. For several years the Tenant has apparently had the benefit of lower rents than have been deemed to be appropriate maximums after the rent review process has taken place. As such there is no basis for relief on equitable grounds.

CONCLUSION

   The Landlord is entitled to the relief claimed by it. In the event that the parties are unable to agree upon the arrears now due and owing, I may be spoken to. The Landlord is entitled to its costs, to be assessed.

ZELINSKI J.