This post is about the importance of RTA section 83 ("Power of Board, Eviction").
There is a common misconception that satisfying technicalities on an N12 / L2 and proving good faith on a balance of probabilities at the LTB (see more about this here) is all that is needed to ultimately obtain an eviction order. But in practice, it is not always the case, and sometimes an N12-based L2 application can be dismissed due to mandatory or discretionary refusal of an eviction under RTA section 83 (and this is true for other types of evictions, as well).
The LTB and Divisional Court rulings below are good illustrations, since some of them go into quite a bit of detail. This also highlights the importance of hiring legal professionals, so that they can argue your case well.
For a brief summary on RTA section 83, see LTB Guideline 12 (about N12 and N13 evictions) and LTB Guideline 7 (about relief from eviction).
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List of LTB examples below:
(1) TSL-02580-19 (Re), 2019 CanLII 87746 (ON LTB), <http://canlii.ca/t/j2hlr> (the landlord owns a condo and his father has 12 other apartments, while the tenant has no other options, N12 dismissed despite good faith)
(2) NOL-15753-14-RV (Re), 2014 CanLII 57596 (ON LTB), <https://canlii.ca/t/gdsz8> (the tenant has limited financial resources and has a disability making it hard to move, N12 dismissed despite good faith)
(3) TSL-60770-15 (Re), 2015 CanLII 69062 (ON LTB), <https://canlii.ca/t/glv0z> ("While the Landlord’s reasons for wanting to move into the unit are reasonable, in this case they are far outweighed by the Tenant’s health concerns about vacating the unit and his inability to find suitable accommodation")
(4) SOL-53030-14 (Re), 2015 CanLII 16020 (ON LTB), <https://canlii.ca/t/gh179> (The landlord issued an N12 after harassing the tenant for having guests)
(5) TEL-94843-18 (Re), 2019 CanLII 87154 (ON LTB), <https://canlii.ca/t/j2glh> (The landlord has other options, plus, mandatory refusal because the landlord did not accommodate the tenant's need to smoke cannabis for medical purposes.)
(6) SWL-37422-19 ("While I appreciate that the rental unit may be the most convenient one for the Landlord's son given his large and expensive equipment, this interest is far less compelling than the Tenant's interest in preserving a long-standing tenancy.")
(7) Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), <http://canlii.ca/t/245jf> (The tenant has disabilities and relies on the sister who lives in another unit in the building. N12 dismissed despite the finding of good faith.)
(8) Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII), <http://canlii.ca/t/hvqj3> (Mandatory dismissal, despite the finding of good faith, because the landlord's decision to move into the unit was triggered by the tenant's refusal to pay an illegal rent increase.)
(9) Yundt v. Parker, 2014 ONSC 1805 (CanLII), <https://canlii.ca/t/g6821> (Mandatory dismissal, despite the finding of good faith, because the landlord's decision to move into the unit was triggered by the tenant's refusal to pay an illegal rent increase.)
(10) McLeod v Pyatt, 2021 CanLII 139827 (ON LTB), <https://canlii.ca/t/jltn5> (Mandatory dismissal, despite the finding of good faith, because the landlord's decision to move into the unit was triggered by the tenant's refusal to pay an illegal rent increase.)
(11) CET-68675-17 (Re), 2017 CanLII 93910 (ON LTB), <https://canlii.ca/t/hq1vp> (N12 dismissed because it was issued in retaliation for maintenance complaints.)
(12) TSL-97138-18 (Re), 2018 CanLII 120848 (ON LTB), <https://canlii.ca/t/hwmbv> (N12 dismissed because the landlord failed to maintain sufficient temperature in the unit / serious breach)
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(13) TSL-76001-16 (Re), 2017 CanLII 28525 (ON LTB), <https://canlii.ca/t/h3qx8> (retaliation affecting the good faith claim, dismissal without even invoking RTA section 83)
Other examples:
(14) SWL-03462-09 (Re), 2009 CanLII 84377 (ON LTB), <https://canlii.ca/t/2bh0n> (Refused N4 / L1 eviction due to landlord's deliberate interference with supply of gas and electricity to the rental unit)
(15) TEL-99511-19 (Re), 2019 CanLII 126925 (ON LTB), <https://canlii.ca/t/j4jsz> (Refused N4 / L1 eviction due to landlord's failure to deal with a serious plumbing issue)
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Some other informative cases, including when eviction was granted, but with a delay due to the tenants' circumstances:
(18) Puterbough v. Canada (Public Works & Government Services), 2007 CarswellOnt 2222, [2007] O.J. No. 748, 55 R.P.R. (4th) 189 (serious breach must be in existence at the time of the hearing in order to be able to trigger RTA ss. 83(3)(a) mandatory refusal of eviction)
(19) Divisional Court in MacNeil v. 976445 Ontario Ltd., 2005 CarswellOnt 10528, [2005] O.J. No. 6362 ("The new legislation has replaced "a reason" with the narrower "the reason". This indicates that the landlord's sole or primary reason for the termination of the tenancy" must be retaliatory to trigger mandatory dismissal under RTA ss. 83(3)(c).)
(20) TSL-78756-16 (Re), 2017 CanLII 28518 (ON LTB), <https://canlii.ca/t/h3r09>
(21) TSL-70781-16 (Re), 2016 CanLII 39812 (ON LTB), <https://canlii.ca/t/gsb38>
(22) TSL-71705-16 (Re), 2016 CanLII 71624 (ON LTB), <https://canlii.ca/t/gv8d1>
(23) TNL-06234-18 (Re), 2018 CanLII 113896 (ON LTB), <https://canlii.ca/t/hwbkp>
(24) TSL-12596 (Re), 2009 CanLII 51178 (ON LTB), <https://canlii.ca/t/25tqk>
(25) TSL-51257-14-RV (Re), 2015 CanLII 22344 (ON LTB), <https://canlii.ca/t/ghds9>
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Excerpts from the rulings:
"the Landlord has several other options for places to live in Toronto. Not only is there another residential unit in the complex, the Landlord owns a condominium unit downtown with his father and his parents own 12 other apartments. This stands in sharp contrast to the Tenant who seems to have little to no other options."
"1. The application is dismissed because while I am satisfied on a balance of probabilities that the Landlord intends to move into the rental unit, the disclosed circumstances support granting relief from eviction.
The Landlord’s good faith intention
2. Based on the Landlord’s testimony, which is consistent with the information in his affidavit filed in support of the application and the testimony of his mother, IB, I am satisfied on a balance of probabilities that the Landlord, in good faith requires possession of the rental unit for the purpose of residential occupation.
3. The Landlord provided clear, consistent and uncontested evidence that he intends to move from Montreal, where he is currently living, to Toronto to manage the residential complex and be with his family. The Landlord’s parents live in Toronto and they currently manage the residential complex for the Landlord.
4. The Tenant also testified that his work is portable, which allows him to relocate easily. Specifically, the Tenant is a musician and his work includes song writing, mixing, mastering and recording.
5. The Tenant further testified that he already gave his own landlord in Montreal notice that he was terminating that tenancy effective April 30, 2019. The Tenant testified that his landlord is aware of these proceedings and he is willing to be flexible with the termination date.
6. I have no reason to doubt the accuracy and truthfulness of the Tenant’s evidence or his good faith intentions. However, as with any application for termination, this application must bear the scrutiny of section 83 of the Residential Tenancies Act, 2006 (the “Act”), which I consider below.
Section 83 considerations
7. Subsection 83(1) of the Act states:
Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) Refuse to grant the application unless satisfied having regard to all the circumstances, that it would be unfair to refuse; or
(b) Order that the enforcement of the eviction order be postponed for a period of time.
8. According to section 83, I am required to consider all the circumstances in the case including both parties’ situations to determine if it would be appropriate to evoke section 83 relief.
The Tenant’s circumstances
9. The Tenant is 57 years old. She has been living in the neighbourhood where the residential complex is located since she moved to Canada in 1974. She has lived in the residential complex for 20 years and in the rental unit for 11 years.
10. The Tenant has numerous physical and mental health issues. She has chronic depression despite being on numerous medications. She also has post-traumatic stress disorder, hypertension, osteoarthritis and is housebound due to agoraphobia. She is currently on disability and unable to work.
11. Her sole source of income is long-term disability payments and she receives $2,300 per month. Her monthly expenses total $2,275, which includes rent ($804), hydro ($80), cable ($80), internet ($31), food ($300), transportation ($130), cigarettes ($300), credit card payments ($500) and her dental plan premiums ($50).
12. The Tenant testified that she has very strong connections to her neighbourhood. The Tenant testified that due to her osteoarthritis, which affects both her knees, she cannot walk far distances because she starts to feel pain after walking for 10 minutes. The Tenant testified that due to her mental health conditions she does not socialize often and she stays inside most of the time. The Tenant feels safe going to local businesses that she is familiar with, including the pharmacy across the street and an ice cream store three doors down from her building. The Tenant testified that her doctor and dentist are also in the neighbourhood. The Tenant testified that when she is unable to leave her home, she relies heavily on two neighbours – one living in the other apartment in her building and the other living in the building next-door – to run errands for her. The Tenant testified that she feels safe living in the rental unit because she knows there are people closely who know her and she can rely on them to help her if needed. The Tenant testified that she is not in contact with any family members.
13. The Tenant submitted letters from her doctor, pharmacist, the owner of the ice cream store and her neighbours, which corroborate the existence and importance of these relationships to the Tenant. The Tenant’s doctor, NK, also testified that the Tenant has many supports in her neighbourhood and if she was forced to move she would lose those supports.
14. The Tenant testified that she cannot afford to move to another apartment in her neighbourhood. Based on the Tenant’s evidence about her financial circumstances, which seemed truthful and genuine, I find that the Tenant’s fixed income of $2,300 is barely enough to cover the Tenant’s living expenses. The Tenant submitted listings of other one-bedroom apartments in the neighbourhood that are being advertised for $1,200 - $1,700 per month, which the Tenant cannot afford. The Tenant testified that she has also researched bachelor units in the neighbourhood and they cost approximately $1,000 per month, which she also cannot afford. The Tenant testified that on account of her mental health conditions, which make it difficult for her to socialize and cause her to have night terrors, she also cannot live with a roommate to reduce her rent.
The Landlord’s circumstances
15. The Landlord testified that he wants to move from Montreal to Toronto to manage the residential complex and to be with his parents, who are aging and have various health issues.
16. Both the Landlord and his mother, IB, testified that the Landlord’s parents currently manage the residential complex, which includes a commercial unit on the ground floor and two residential units, one of which is the rental unit. Their testimonies indicate that the Landlord has never been directly or seriously involved in managing the residential complex. The Landlord testified that he wants to take over management of the building now because his parents are “too old”. However, IB testified that she and her husband own and manage two residential buildings of their own with a total of 12 units and while they have contemplated selling these buildings they have not done so. This indicates to me that the Landlord’s parents are still capable of managing the residential complex even if the Landlord does not move back to Toronto or into the building.
17. IB testified that the day before the hearing her doctor told her that she has a blocked artery and that she should avoid stress, heavy lifting and stairs. However, the medical report she submitted at the hearing does not clearly state that this is a serious health condition that requires urgent care and prevents either IB or the Landlord’s father from continuing to manage their properties or the residential complex. I also did not hear any evidence that the Landlord was intending to move to Toronto or into the rental unit in particular to provide any type of care to his mother.
18. Further, the Landlord has several other options for places to live in Toronto. Not only is there another residential unit in the complex, the Landlord owns a condominium unit downtown with his father and his parents own 12 other apartments. This stands in sharp contrast to the Tenant who seems to have little to no other options. The Divisional Court’s decision in Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC) allows me to consider the Landlord’s options for other places to live as part of my analysis under section 83.
19. When I consider the totality of the factors that were disclosed at the hearing, I find that the unfairness to the Tenant of granting the application far outweighs the unfairness to the Landlord of denying the application and the Tenant would experience significant physical, mental and financial hardship if she was forced to move out of the rental unit. The evidence does not support that the Landlord will be similarly prejudiced if his application is not granted. Accordingly, I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, and find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act."
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"12. There is no evidence the Landlord’s decision to issue this termination notice to the Tenant was discriminatory and based on either his disability or his receipt of disability pension. The decision to terminate the tenancy of this unit was based on NM’s circumstances and was in good faith.
13. I find that the Landlord, in good faith, requires possession of the rental unit for the purpose of residential occupation.
14. The leading decision concerning applications for termination of a tenancy for landlord’s own use is the Divisional Court decision of Beljinac v. Salter (June 15, 2001), Toronto Docket No. 715/00, 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792 (Div. Ct.) Re: TSL-21378. The Court found that the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal.’
15. However the Landlord’s right to take possession of a rental unit for his own use is not absolute.
16. Section 83 of the Residential Tenancies Act, 2006 provides that before issuing an order terminating a tenancy the Board must consider all the circumstances and this includes the Tenant’s request for accommodation of his disability under the Human Rights Code.
17. The Tenant has limited financial resources as a recipient of disability pension and his intellectual disability affects his ability to find new accommodations and relocate after six years in the rental unit.
18. NM’s circumstances have changed since the notice was served. NM is now fully employed with a reasonable annual income which increases his options regarding rental accommodations. The main factors regarding the Tenant’s unit is the proximity to central Port Arthur and to the Landlord.
19. The Landlord has also acknowledged he is involved with many rental complexes comprising 30 to 60 rental units, including the Tenant’s unit.
20. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.
It is ordered that:
1. The Landlord’s application is dismissed."
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"While the Landlord’s reasons for wanting to move into the unit are reasonable, in this case they are far outweighed by the Tenant’s health concerns about vacating the unit and his inability to find suitable accommodation"
"I find that, on a balance of probabilities, the Landlord does have a genuine intention to occupy the rental unit. The Landlord and JR are senior citizens. Their two children live near the residential complex and, in all likelihood, the daily drive from the couple’s North York home to the complex is becoming increasingly challenging for them—especially during the winter months. Also, while the evidence in this regard could have been more complete, I am satisfied, based on the medical evidence provided, and MV’s testimony, that JR does suffer from osteoarthritis in his left knee, which makes climbing stairs a challenge.
ii) Subsection 83(1) of the Act
The Tenant submits that the reason for the Landlord’s application is that the Tenant, in essence, has attempted to secure or enforce his legal rights and/or that the Tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards. The Tenant clearly relies on subsection 83(3) of the Act and such a finding would require that I dismiss the Landlord’s application as subsection 83(3) is mandatory, not discretionary: Blaker v. Chan, 2013 ONSC 6331 (CanLII).
I am not persuaded by the Tenant’s evidence and submissions in this regard. The Tenant is a very intelligent, articulate and resourceful individual. Yet, he has not brought a single tenant application to the Board in connection with any of the maintenance issues he has complained about during the course of the tenancy. All of the Tenant’s complaints have been made to municipal authorities and have been, albeit not to his satisfaction, addressed by the Landlord. With the exception of the downspout issue, all issues appear to have been addressed and/or finally resolved as far as the municipal authorities are concerned. While the Tenant states that the office of city councilor Joe Cressi is currently considering the ventilation issue, there is no evidence before me as to what action, if any, the councilor has taken or is taking. As such, the Tenant’s s. 83(3) submissions are dismissed.
I was, however, more impressed by the Tenant’s evidence and submissions regarding the discretionary relief available to him pursuant to s. 83(1) Act and which relief requires a consideration of fairness and “all the circumstances”.
While the Landlord’s representative submitted that the Board cannot consider whether the Landlord’s decision to occupy the unit is “fair or reasonable”, I prefer the Divisional Court’s pronouncement in Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), [2009] O.J. No. 2659) wherein the Court states:
“[11] The language of the section requires the Board to have regard to all the circumstances and there is no basis to preclude a consideration of unfairness to the tenant. Section 83(1) requires that the Board consider all the circumstances even if the Board member finds that the application is made in good faith.”
The Tenant testified that, upon being served with the N12 notice, he has spent an extensive amount of time looking for accommodation but has been unsuccessful. He has visited four apartments, which have proved unsuitable. He stated that, given his disabilities, he requires accommodation that has been cat-free for at least 10 years and dog-free for at least 5 years and that, if the Landlord’s application is granted, he would require a minimum of six to nine months to find rental accommodation. The Landlord opposed such a lengthy postponement of eviction.
The Landlord’s representative submitted that the Tenant’s “expectation of a surgical sterile environment is impossible in any building”. The Tenant stated that he wishes to remain in the unit and that, when the ventilation system is working properly, the residential unit meets his needs.
The Tenant provided ample medical evidence, dating back to 1996, regarding his various historical and current medical condition and disabilities. The Tenant has a history of severe asthma and atopy dating back to his childhood, severe coronary artery disease, chronic kidney disease, degenerative disc disease and extensive environmental sensitivity as described above. The Tenant’s medical evidence further reveals that, as late as April 2015, he was suffering from “severe airway disease requiring aggressive treatment”.
On the other hand, the Landlord’s evidence regarding JR’s knee problems—the main reason for her and JR’s wish to occupy the Tenant’s unit, consists of a one-sentence letter, from JR’s rheumatologist, stating that JR had “a knee-joint injection for osteoarthritis on May 6, 2015”.
While the Landlord and MV testified that JR might require knee-replacement surgery in the future, there is no medical evidence before me stating that such surgery is, or may be, required in the future.
I raised the scarcity of the Landlord’s medical evidence with the Landlord’s representative during the course of the hearing and I was informed that JR’s rheumatologist was unwilling to provide further correspondence because the Tenant contacted the rheumatologist’s office, between sittings, and the rheumatologist feared being called to testify during these proceedings. The Landlord’s representative is experienced and regularly appears before the Board and I am not swayed by his arguments. There is no property in a witness. Put simply, just because one party to the proceedings has taken a statement from a witness does not prevent the other party from also seeking to do so. Given that JR’s alleged physical disability is one of the main reasons for the Landlord’s desire to occupy the unit, more persuasive medical evidence about JR’s disability ought to have been presented or steps taken to seek a summons for the appearance of the rheumatologist. While MV testified that, in her opinion, JR is a candidate for a knee replacement, by her own admission she lacks the medical training and credentials to make such a diagnosis.
The evidence before me is that, for the last twenty-six years, and to the date of the hearing, JR has travelled to the complex, on a daily basis, to perform his managerial duties. To access the complex’s elevator, tenants and staff must climb either seven steps located at the rear of the building or five steps located at the front. While the Landlord and MV testified that the stairs in JR’s current family home are of paramount concern given JR’s left knee issues, they expressed no similar concern about the stairs in the complex. Indeed, the Landlord testified that, at least twice per year, JR climbs the vertical access ladder leading to the complex’s roof, to inspect the ventilation system. There is no evidence before me that JR intends, or is medically required, to stop his managerial duties any time soon or that the stairs in his current home are of concern to his rheumatologist.
MV testified that, given her busy practice and the fact that she treats JR, it would be convenient for JR to reside in the complex. As JR travels daily to the complex, I fail to see how it would be more convenient, for anyone, to have JR residing in the building for the purposes of receiving physiotherapy treatment.
Further, while the Landlord’s ability to live in another unit is not a proper factor to consider in determining good faith, such a factor is available to me, as per Caputo, supra, in a s. 83(1) analysis, where I am required to consider “all the circumstances”:
“[10] Finally, the appellant submits that the Board erred in law in considering that the appellant could live in one of the other units. While we would agree that pursuant to Salter v. Beljinac (2001) 2001 CanLII 40231 (ON SCDC), 201 D.L.R. (4th) 744, para. 26 (Div. Ct.), this factor could not be considered in the determination of whether the application was made in good faith, the legislation does not preclude this as a consideration in considering whether to exercise discretion under s.83(1).”
I am also of the opinion that s. 83(1) requires a broad interpretation of “all the circumstances”. In Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, a case concerning the exercise of discretion not to remove a permanent resident from Canada, the Supreme Court considered the ordinary and grammatical meaning of “all the circumstances of the case” and noted at paragraphs 29 and 30 that:
“An ordinary reading of “all the circumstances of the case” leads to a broad interpretation of s.70(1)(b). The first consideration is that these words appear in a provision establishing a discretionary or equitable jurisdiction. The words do not provide detailed guidelines as to how this discretionary jurisdiction is to be exercised, but instead leave the scope of the discretion open-ended.”
The second factor favouring a broad reading of s. 70(1)(b) is the grammatical sense of the phrase “all the circumstances of the case”. The word “all” is defined by the Concise Oxford Dictionary (8th ed. 1990), at p. 29, as “entire number of” or “greatest possible”. In this context, it would therefore mean considering the greatest possible number of factors relevant to the removal of a permanent resident from Canada. It is evident that one such factor is the conditions an individual would face upon removal.”
Apart from the Tenant being the last tenant to occupy a “large unit” in the complex, there is no evidence before me to the effect that other large units in the 36-unit complex, or in the other complex’s owned by the Landlord, are not equally suitable for, or available to, the Landlord.
The Tenant is a seventy-one-year-old man who lives with extremely debilitating environmental sensitivities and physical maladies on a daily basis. He took possession of the unit in August of 2012 and, when the complex’s ventilation system is working properly, the building suits his needs. Since early March 2015, when the Tenant was served with the current N12 notice, he has been unsuccessful, despite an “extensive” search, in finding suitable accommodation mainly due to his environmental sensitivities.
The Landlord requires the Tenant’s unit because, due to the osteoarthritis in her husband’s left knee, there is concern about the stairs in the couple’s current home and the daily drive to the unit is becoming taxing for JR. The couple also wishes to live closer to their two children.
While the Landlord’s reasons for wanting to move into the unit are reasonable, in this case they are far outweighed by the Tenant’s health concerns about vacating the unit and his inability to find suitable accommodation—all of which are supported by abundant medical evidence in contrast to the Landlord’s medical evidence, which is seriously lacking. In this regard, I note the comments of Dr. Abraham J. Saltzman, the Tenant’s cardiologist, who states in his letter of April 27, 2015 as follows:
“Accommodating [the Tenant’s] health needs and disability would provide at least some relief at this time. Given the potential for further destabilization of his medical conditions it would be medically inadvisable, to undertake anything as physically and emotionally stressful as moving at this time. Past experiences reveals [sic] this requires considerable time and diligence in order to provide an arrangement in which he can cope with his disabilities.”
50. As well, Dr. S.M, with the Family Practice Unit at St. Michael’s Hospital in Toronto, states in her letter, dated April 22, 2015, that the Tenant’s symptoms have worsened over the winter of 2014 and that his living accommodation must be accommodated “so that [the Tenant] avoids those triggers that aggravated his ongoing medical condition. This includes continuous ventilation and avoidance of stressful situations”.
I am satisfied that, given all of the evidence before me and based on fairness to the Tenant and considering the balance of convenience to the parties, the Landlord’s application must be dismissed pursuant to s. 83(1) of the Act."
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(4) SOL-53030-14 (Re), 2015 CanLII 16020 (ON LTB), <https://canlii.ca/t/gh179>
"68. I am of the opinion that, on a balance of probabilities, the Landlords’ son does have a genuine intention to occupy the rental unit; he is a grown man who has recently finished schooling and has been away from home for a number of years for that reason. Both the Landlords’ son and the Landlord that attended the hearing testified that it is stressful to have the Landlords’ son to be living with the Landlords.
Subsection 83(3)
69. It is submitted by the Tenant that the reason for the application being brought is that the Tenant has attempted to secure or enforce his or her legal rights, specifically, the Tenant’s right to have guests at the rental unit.
70. Such a finding would require the Board to dismiss the Landlords’ application as subsection 83(3) is mandatory not discretionary as was held in Blaker v. Chan, 2013 ONSC 6331.
71. Despite my finding that the Landlords’ son has a genuine intent to occupy the rental unit, I find that the reason for the Landlords bringing this application is because the Tenant has attempted to enforce his legal right to have guests at the rental unit.
72. The evidence of the Tenant was that the first sign of problems with the Landlord came after the 2013 party that the Tenant held at his rental unit. In order to avoid an issue the second time, the Tenant sent the Landlord a letter advising of his intention to host a similar party in 2014, of his intention to comply with his obligations with respect to noise, etc., and of his expectation that the Landlord treat his guests with respect. It was at this point that the Landlord took action to evict the Tenant and at this point that the harassment began.
73. Although it was submitted by the Landlords that they have always had the intention to move their son into the rental unit all along, I did not find these claims convincing. The evidence of both the Landlord that attended the hearing and that of the Landlords’ son was vague. Neither of them was able to even approximate a month in which such a discussion took place.
74. The evidence of both the Landlord that attended the hearing and that of the Landlords’ son was contradictory. The Landlord that attended the hearing testified that the plan all along was for her son to return home after schooling and take over the family business. The son testified that he is only helping out his father, that there is no plan and it was never discussed that he would take over the family business.
75. The only evidence that places the Landlords’ plan to move his son into the rental unit as being before the Tenant gave the Landlord the letter of intent to have a party in 2014 came from BM, the Landlord’s solicitor.
76. Even if I were to accept that the Landlord had plans to have his son move into one of his rental units, I still find on a balance of probabilities that this particular rental unit was chosen because the Tenant attempted to enforce his rights to have guests.
77. The Landlord did not approve of the Tenant having guests; he harassed the Tenant and attempted to interfere with the Tenant’s guests when they visited. During discussions about the Tenant’s right to have guests, the Landlord asked the Tenant if he wants to keep living at the rental unit. Given the fact that a notice of termination followed the next day, this question is reasonably interpreted as a threat and its connection to the Tenant’s enforcement of his right to have guests is transparent.
78. The pattern of activity that followed, and was found to amount to harassment in order SOL-51291-14/SOT-51457-14 is a further indication that the Landlord actively sought to interfere with the Tenant’s right to have guests.
79. Accordingly, I find that the reason for the application being brought is that the Tenant has attempted to secure or enforce his legal right to have guests at his rental unit."
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"31. A report by a resident psychiatrist at Mount Sinai Hospital dated November 27, 2018 indicates that T suffers from severe anxiety related to the potential loss of her current housing. The report states she has already lost much of her independence, freedom and future as a result of her chronic pain.
32. It is also reported that with the current housing situation in Toronto, T is unable to afford a similar unit in the same area where she is well supported by family and healthcare providers. She has access to public transportation in her current location and is within walking distance to important areas to her daily function such as shopping, parks and the like. She feels isolated because of her illness and feels that her neighbourhood relationships have helped her overcome this. An eviction which is likely to result in her losing most of her supports if she were forced to move to a different area will be very detrimental to her emotional and physical stability. The report concludes by asserting that at this time it is medically inadvisable to undertake a task as emotionally or physically stressful as moving.
33. T said her sister is he constant companion. She helps T to cook and clean, go to doctor’s appointments and acts as her entire support system. T said her sister lives about 4 minutes away from her but if T had to move out of the area the difficulty in helping her would be compounded by the need for her sister to attend also to her baby.
34. I am also satisfied that there are other reasonable options available to the Landlords. Although SV would prefer a one-bedroom unit to a studio unit, I am persuaded it would not be undue hardship for her to reside in the one studio unit owned by T which is in the same building while going to school.
[...]
36. In addition, pursuant to section 83(3) of the Act, I must deny the Landlords’ application because the Landlords are in serious breach of the landlords’ responsibilities under this Act. Based upon the medical evidence presented that supports Terri’s disabilities and right to have marihuana for medicinal purposes, I am satisfied the negative responses by the Landlords and the Condominium Corporation to T’s request for accommodation by allowing her to smoke marihuana outside on the terrace were inappropriate. The Landlords have a duty to accommodate T’s disabilities to the point of undue hardship. If she needs to smoke marijuana and it is prescribed, the Landlords must allow this to take place."
"Ongoing dispute between the parties
13. As discussed below, the Divisional Court has indicated that the Board should consider all of the circumstances respecting a tenancy in determining whether the Landlord has satisfied that required legal test in order to terminate the tenancy for landlord’s own use.
14. In this case, the circumstances include an ongoing dispute between the parties that began when the Landlords received a letter from a law firm calling itself “Lash/Condo Law” dated August 31, 2017 informing the Landlords that an unnamed tenant and guest were smoking marihuana on the 9th floor west terrace of the residential complex contrary to a provision of the Condominium Corporation’s rules and declaration. The letter demanded that the Landlords reimburse the Condominium Corporation pursuant to a provision in the declaration for the legal fees and disbursements it incurred for advice and a cease and desist letter totalling $587.60.
15. Terri said on September 1, 2017 A.D, who acts as the real estate agent for the Landlords, called her about this charge of $587.60. T said she would pay back the Landlords and proceed before the Human Rights Tribunal regarding the discriminatory policy of the Condominium Corporation. However, the Tenants did not pay the demanded amount.
16. The Landlords then served an N5 notice dated September 6, 2017 to terminate the tenancy of the Tenants on September 29, 2017 on the basis that a T, and her guest were smoking marihuana on August 31, 2017 and giving the Tenants seven days from September 6, 2017 to provide to the Landlord(s) $587.60.
17. On September 11, 2017, T wrote to all concerned informing them she has a medical prescription for marihuana due to several medical conditions and asked that the $587.60 “fine” charged to the Landlords be withdrawn. In that same letter she requested a medical accommodation pursuant to the Human Rights Code of Ontario to allow her to consume her medication on the outdoor terrace of the common elements of the Condominium Corporation.
18. In or about September 2017, T also filed a complaint with the Ontario Human Rights Tribunal against the Condominium Corporation, its corporate property manager and the Landlords requiring that they accommodate her medicinal needs by allowing her to smoke marihuana on the outdoor terrace.
19. By email dated October 4, 2017 addressed only to the real estate representative of the Landlords, the property manager of the Condominium Corporation informed her that it would not reverse the charge to the Landlords for legal fees it had incurred and it would not allow Terri to smoke marihuana in the common areas. In reaching its decision it would seem no distinction was being made between indoor and outdoor common areas. That email was passed on to Terri on October 7, 2017.
20. However, the N5 notice dated September 6, 2017 was not proceeded with. Instead, a new N5 notice dated October 14, 2017 to terminate the tenancy of the Tenants was served on November 15, 2017. It alleged the same conduct as in the earlier N5 notice, namely, the Tenant, without naming which one, and her guest were smoking marihuana on August 31, 2017 on the 9th floor terrace. The Landlords also sought reimbursement for the legal fees and disbursements paid by the Landlords to the Condominium Corporation.
21. T said A.D called her in November 2017 and told her that her mother would be moving into the unit because her mother cannot handle the stress dealing with the rental unit. Terri thereupon informed her that she would not be paying the charge back since the Landlords were intending to terminate her tenancy.
22. On October 26, 2017, the Landlords filed an L2 application with the Board based on the new N5 notice. That application was dismissed by Order HOL-02008-17 on the basis that that the Landlords had not proven the Tenants had not voided the N5 notice within the seven day period following giving it to them.
Analysis
23. In order to succeed, the Landlords must establish that in good faith possession of the rental unit is required for the purpose of residential occupation for a period of at least one year by SV.
24. In Feeney v. Noble, 1994 CanLII 10538 (ON SC), [1994] O.J. No 2049, 19 O.R. (3d) 762, the Divisional Court held that the test for determining good faith is that there must be a genuine intention to occupy the premises and not the reasonableness of the Landlord’s proposal. This principle was repeated in Salter v. Beljinac 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792, 201 D.L.R. (4th) 744 where the Ontario Divisional Court held that the “good faith” requirement simply means that the Landlord sincerely intends to occupy the rental unit. “The Landlord may also have additional motives for selecting a particular rental unit, but this does not affect the good faith of the Landlord’s notice.”
25. In the more recent case of Fava v. Harrison, 2014 ONSC 3352 (CanLII), the Divisional Court confirmed that motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.
26. Having considered both the Landlords’ evidence about their intentions for the rental unit and the history between these parties, I am persuaded that SV genuinely intends to move into the rental unit for at least one year. In reaching this conclusion I find it likely the Landlords tried by means of N5 notices to end the tenancy because T was smoking marihuana and thereby exposing them to financial charges and after T’s daughter was accepted to college they hit upon that as reason to issue the N12 notice to end the tenancy.
27. I am also aware that there has been no consideration by SV and her mother regarding how SV will manage to continue to work at Vaughn Mills Shopping Centre which is far away from the rental unit that is located in downtown Toronto.
28. In addition, the delivery of two N5 notices and two N12 notices following a discussion between T and T at the beginning of September 2017 to the effect that T’s mother cannot take the stress of the dispute with the Condominium Corporation regarding Terri’s smoking marihuana for medicinal purposes and therefore intends to occupy the rental unit suggests there has been a change of intended occupants of the unit. Nevertheless, I am satisfied SV is honest in asserting her desire to live in the unit while attending the remaining semesters of her three-year program at college and therefore the Landlords are entitled to evict the Tenants subject to considerations referenced in section 83 of the Residential Tenancies Act, 2006 (the “Act”), including whether it would be unfair to refuse to grant termination of the tenancy and whether the Landlords are in serious breach of the Act by failing to comply with their obligations under the Human Rights Code, RSO 1990, c H.19, as amended.
Section 83 Considerations
29. In accordance with subsection 83(2) of the Act, I must consider all of the disclosed circumstances and determine whether it would be unfair to deny eviction pursuant to section 83(1)(a) of the Act.
30. T has presented medical reports that show she has spinal stenosis with cervical myelopathy. As a result, she suffers from debilitating chronic myofascial pain, neuropathic pain and mechanical neck pain along with anxiety and depression for which marihuana, among other things, is prescribed. She was in a car accident in 2012. On December 17, 2015 she underwent a cervical laminectomy and instrumented fusion for her cervical myelopathy secondary to ossification of the posterior longitudinal ligament and some osteophytes. She has gait problems and imbalance, numbness in her arms and clumsiness in hands.
31. A report by a resident psychiatrist at Mount Sinai Hospital dated November 27, 2018 indicates that T suffers from severe anxiety related to the potential loss of her current housing. The report states she has already lost much of her independence, freedom and future as a result of her chronic pain.
32. It is also reported that with the current housing situation in Toronto, T is unable to afford a similar unit in the same area where she is well supported by family and healthcare providers. She has access to public transportation in her current location and is within walking distance to important areas to her daily function such as shopping, parks and the like. She feels isolated because of her illness and feels that her neighbourhood relationships have helped her overcome this. An eviction which is likely to result in her losing most of her supports if she were forced to move to a different area will be very detrimental to her emotional and physical stability. The report concludes by asserting that at this time it is medically inadvisable to undertake a task as emotionally or physically stressful as moving.
33. T said her sister is he constant companion. She helps T to cook and clean, go to doctor’s appointments and acts as her entire support system. T said her sister lives about 4 minutes away from her but if T had to move out of the area the difficulty in helping her would be compounded by the need for her sister to attend also to her baby.
34. I am also satisfied that there are other reasonable options available to the Landlords. Although SV would prefer a one-bedroom unit to a studio unit, I am persuaded it would not be undue hardship for her to reside in the one studio unit owned by T which is in the same building while going to school.
35. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), as stated above, and find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.
36. In addition, pursuant to section 83(3) of the Act, I must deny the Landlords’ application because the Landlords are in serious breach of the landlords’ responsibilities under this Act. Based upon the medical evidence presented that supports Terri’s disabilities and right to have marihuana for medicinal purposes, I am satisfied the negative responses by the Landlords and the Condominium Corporation to T’s request for accommodation by allowing her to smoke marihuana outside on the terrace were inappropriate. The Landlords have a duty to accommodate T’s disabilities to the point of undue hardship. If she needs to smoke marijuana and it is prescribed, the Landlords must allow this to take place.
It is ordered that:
1. The application is dismissed."
_____________________
"While I appreciate that the rental unit may be the most convenient one for the Landlord's son given his large and expensive equipment, this interest is far less compelling than the Tenant's interest in preserving a long-standing tenancy."
(6) SWL-37422-19
"[11] Based on all the evidence, I find that the Landlord's son genuinely intends to move into the rental unit for at least one year. Therefore, the Landlord has satisfied the "good faith" test contained in section 48 of the Act.
[12] However, before terminating the tenancy, I must consider all the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and determine whether it would be unfair to deny or delay eviction pursuant to subsection 83(1) of the Act. In making this determination, I must balance the interests of both sides in deciding whether to terminate the tenancy and evict the Tenant.
[13] The landlord's son, on the one hand, would find other units in the residential complex suitable but for his large and expensive equipment. It would appear then that the equipment played a huge role in the Landlord's decision to file to evict the Tenant. On the other hand, the Tenant has resided in the rental unit for about eight years and finds it affordable and close to her place of work.
[14] Having considered the interests of both parties and the effects of termination of the tenancy on both parties, I find that it would not be unfair to deny eviction. A denial of the Landlord's application will not significantly affect her son's life as he can wait until another one-bedroom unit becomes vacant, irrespective of what floor it is on. The opposite is the case for the Tenant who would have to pack up and seek alternative accommodation after eight years in the rental unit and will likely be faced with increased rent. While I appreciate that the rental unit may be the most convenient one for the Landlord's son given his large and expensive equipment, this interest is far less compelling than the Tenant's interest in preserving a long-standing tenancy."
_____________________
"the appellant submits that the Board erred in law in considering that the appellant could live in one of the other units. While we would agree that pursuant to Salter v. Beljinac (2001) 2001 CanLII 40231 (ON SCDC), 201 D.L.R. (4th) 744, para. 26 (Div. Ct.), this factor could not be considered in the determination of whether the application was made in good faith, the legislation does not preclude this as a consideration in considering whether to exercise discretion under s.83(1)."
"[2] The appellant applied to the Board to terminate the respondent’s tenancy and evict her on the basis that the appellant wanted to occupy the rental unit for his own use. The application was made in good faith by the landlord who has a genuine desire to move into the rental unit with his fiancée.
[3] The property has four rental units and is the only property owned by him. The tenant suffers from financial, physical and mental health challenges and relies upon her sister who occupies another rental unit in the building.
[4] The Board found: “on balance, the eviction of the tenant seems more unfair than denying the landlord his application to evict” and refused to grant the application pursuant to s.83(1) of the Residential Tenancies Act, 2006 S.O. 2006, c-17.
[...]
[8] The appellant submits that having found that the application was made in good faith, the Board must grant the application except in exceptional circumstances such as misconduct by the landlord.
[9] The appellant accepts that the Board may consider and balance all the circumstances but submits that the Board erred in law by weighing the unfairness between the landlord and the tenant. The appellant submits that once the Board finds that it is unfair to the landlord to refuse, then the Board cannot rely on s.83(1)(a). The Board member cannot balance the unfairness to both, but only the circumstances of both.
[10] Finally, the appellant submits that the Board erred in law in considering that the appellant could live in one of the other units. While we would agree that pursuant to Salter v. Beljinac (2001) 2001 CanLII 40231 (ON SCDC), 201 D.L.R. (4th) 744, para. 26 (Div. Ct.), this factor could not be considered in the determination of whether the application was made in good faith, the legislation does not preclude this as a consideration in considering whether to exercise discretion under s.83(1).
[11] The language of the section requires the Board to have regard to all the circumstances and there is no basis to preclude a consideration of unfairness to the tenant. Section 83(1) requires that the Board consider all the circumstances even if the Board member finds that the application is made in good faith.
[12] The legislature has given the Board broad discretion to refuse to grant an application for an order evicting a tenant, notwithstanding a finding that the application was made in good faith and that the landlord genuinely intends to occupy the residential unit.
[13] As stated in Salter v. Beljinac, supra, at para. 30:
“The Board member is entitled to weigh the overall circumstances relevant to the situation of both the landlord and the tenant to provide what the Tribunal perceives to be a fair result.”
[14] Reading the Board decision as a whole and bearing in mind that the Board member is not legally trained, we are satisfied that she did not fail to consider the landlord’s property rights or the absence of misconduct.
[15] Once the Board member has made her findings under s.83(1), having considered all the circumstances, as in this case, a court on appeal should afford the member’s decision a great deal of deference.
[16] We are satisfied that the Board member made no error in principle, considered relevant circumstances and her decision is not unreasonable. The appeal is therefore dismissed."
____________________
"[18] The Board found as fact that the application was brought by the Landlord because the Tenants attempted to enforce their legal rights. Specifically, the Board found that the Tenants had refused to agree to a rental increase beyond that to which the Landlord was lawfully entitled, and this is ultimately why the application was brought by the Landlord.
[...]
[20] Even if we were persuaded that this ground of appeal is properly before us, we are not convinced there was any error. The inferences to be drawn from the evidence are practically irrefutable. If the Tenants had agreed to the Landlord’s unlawful demands they would have been allowed to continue to occupy the premises. Because they did not, the Landlord determined he would evict the tenants and move into the property himself. The precipitating event was not the Landlord’s desire to occupy the premises himself. It was the Tenants’ refusal to accede to his unlawful demand. Counsel argued that many facts pertinent to the Landlord were not considered by the Board. We disagree. The Board indicated that its decision was based on consideration of the facts before it. Indeed most, if not all, of the facts referred to as missing from the Board’s analysis must have been considered by it in reaching the conclusion that the Landlord held a good faith intention to move into the premises."
__________________
(9) Yundt v. Parker, 2014 ONSC 1805 (CanLII), <https://canlii.ca/t/g6821>
"[18] As noted earlier, it is undisputed that after purchasing the camp in April of 2010, the Landlords attempted to raise the Tenants’ rent from $1,500 per year to $7,500. The Tenants fought the increase on the basis that the property was subject to the Act and that the proposed increase grossly exceeded the rate allowed by law. The Board agreed and denied the increase.[23] The Board found as a fact that the Landlords’ cclear historic intent has been to either increase the rent charged to the Tenants or terminate the tenancy. Raising the rent was Plan A. Terminating
[29] Since there is only one available outcome from the facts as found by the Board, this is not a case where it is necessary to remit the matter to the Board for a rehearing. This court is in a position to replace the ruling that was made by the Board with the ruling that ought to have been made, as contemplated by s. 209(4)(a) of the Act.
[30] The appeal is allowed, and the application is dismissed."
[19] The Landlords then brought an application to the Superior Court of Justice seeking to terminate the tenancy and evict the Tenants. This too was unsuccessful.
[20] The Landlords then brought the present proceeding, which also sought to terminate the tenancy and evict the Tenants for the commission of an illegal act.
[21] As can be seen from the reasons set out above, the Board dismissed the Tenants’ claim for relief from eviction based on s. 83(3)(c), for the following reasons:
- The Landlords’ application was not brought in bad faith;
- The application was not brought for an improper purpose;
- The substantive issue is justiciable and not frivolous.
[22] It is readily apparent that none of these factors form any part of the test for relief under s. 83(3)(c). The sole question to be asked is whether the reason for the application being brought isthat the tenant has attempted to secure or enforce his or her legal rights. From the factual findings of the Board, there is no question that that is the case.
the tenancy was Plan B. When Plan A was attempted, the Tenants fought back, and enforced their legal rights before the Board in successfully resisting a rental increase beyond the allowable limit. Therefore, the Landlords moved to Plan B and sought to terminate the tenancy, first unsuccessfully before the Superior Court and then before the Board. It is a simple proposition of cause and effect. The present proceedings would not have been brought had the Tenants not successfully resisted the rental increase.
[24] The Board clearly applied the wrong test in considering whether the application was brought in bad faith. Such a consideration sets the bar far too high, and imports an element of moral turpitude into an issue that is merely one of cause and effect. Similarly, it is inappropriate to enquire whether the application was brought for an improper purpose. Seen objectively, one might conclude that it was quite proper for the Landlords to seek to terminate the tenancy, when the amount of rent being paid was a pittance as compared to what a comparable property would rent for on the open market. However, that is not relevant to s. 83(3).
[25] It is similarly irrelevant whether or not the application is justiciable and not frivolous. According to the test prescribed in this section, even an application that has objective merit must be refused if it was brought because the tenant has enforced or attempted to enforce his legal rights.
[26] Both counsel agree that the standard of review on this issue is one of reasonableness.
[27] In Dunsmuir, Bastarache and LeBel JJ. described this standard in the following terms:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[6]
[28] In our view, a legal analysis that considers a test that is contrary to the one prescribed by law cannot be said to be justifiable or intelligible. Furthermore, the outcome does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. Given the Board’s clear findings as to the Landlords’ historic intent, there can be only one logical conclusion on the facts: that Plan B was implemented because the Tenants foiled Plan A by standing up for their rights. Furthermore, there can be only one possible legal outcome from this factual finding: the application must be dismissed. Section 83(3) is in mandatory terms. The Board “shall” dismiss the application where the test has been met.
__________________
(10) McLeod v Pyatt, 2021 CanLII 139827 (ON LTB), <https://canlii.ca/t/jltn5>
"8. Subsequent to purchasing the rental unit, the Landlord retained the services of a property manager. That property manager attempted to secure the agreement of the Tenant to increase the rent from $910.09 to $1,200.00.
9. In a text exchange between the property manager and the Tenant on January 29, 2021, the property manager confirmed that if the Tenant agreed to pay $1,200.00 she could remain in the rental unit ‘indefinitely’. In texts exchanged between the property manager and the Tenant on February 2, 2021, the property manager advised that ‘[d]eal is $1200 (sic) you can stay so mortgage and costs can be covered’ and ‘[t]hey thought they’d be nice to you and let you stay. But they need costs covered. They can’t afford $900. That doesn’t cover expenses.’ In another text, the property manager told the Tenant that it was her choice whether she stayed or vacated. In the context of the other exchanges between the property manager and the Tenant, I interpret that to mean that the Tenant could stay if she agreed to pay the $1,200.00 or the Landlord would proceed to seek an order from the Board terminating the tenancy and evicting the Tenant.
10. The property manager presented the Tenant with a new lease that not only increased the rent to $1,200.00, but also, if accepted by the Tenant, would have taken away certain rights that the Tenant had vis-à-vis the rental unit.
11. While she admitted to be being responsible for the property manager when cross- examined by Ms Dempsey, when re-examined by Mr. Mobberley the Landlord attempted to distance herself from the actions of the property manager by denying that it was her intention to increase the rent. I do not accept this assertion. The Landlord’s evidence in this regard was inconsistent with the evidence she gave when cross-examined and the Landlord’s written submission to the Board. There is no evidence that the Landlord in her own meetings with he Tenant ever repudiated the property manager’s offer that the tenant could remain in occupation of the rental unit if she agreed to pay increased rent of $1,200.00
12. In Yundt v. Parker, 2014 ONSC 1805 (CanLII) the Divisional Court found that para 83(3)(c) was applicable where raising the rent was a landlord’s ‘Plan A’ and terminating the tenancy was ‘Plan B’. In Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII), the Divisional Court found that the Board properly dismissed an application brought pursuant to section 48 of the Act based on para 83(3)(c) where there was evidence that if the tenant had agreed to an illegal rent increase she would have been allowed to continue to occupy the rental unit. [See also Yundt v. Parker, 2014 ONSC 1805 (CanLII), para 23]13. I am satisfied on the balance of the probabilities that the Landlord delivered the N12 and commenced this application because the Tenant attempted to enforce her legal rights in the sense that she refused to agree to an illegal rent increase. In my view, the text exchanges with the property manager leave little doubt that if the Tenant had agreed to pay increased rent of $1,200.00, the N12 would not have been served and this application would not have been filed. It is my finding that whatever the intent was prior to the Landlord purchasing the rental unit, the N12 upon which this application is based was the direct result of the fact that the Tenant would not agree to pay increased rent to allow the Landlord to finance the purchase of the rental; unit from her in-laws. The Landlord admits that the Tenant was approached in an effort to increase the rent ‘to reflect the realities of the housing market’ and the cost of carrying the debt incurred to purchase the rental unit.
14. The Landlord asserts that at no time was a notice of rent increase delivered to the Tenant and at no time did the Landlord arbitrarily raise the rent.
15. The fact that no notice of rent increase was delivered and that the Landlord did not purport to unilaterally increase the rent is not particularly relevant for the purposes of my analysis under para 83(3)(c). Based on Loc Le v. O’Grady and Yundt v. Parker, the question that I am required to ask is whether, had she agreed to the rent increase demanded by the Landlord, the Tenant would have been allowed to continue to occupy the rental unit. As noted above, I have found the answer to that question to be yes.
16. The Landlord asserts that there was only an ‘appearance of impropriety’ and that there was no malice intended.
17. Whether or not there was impropriety or malice is, in my view, not particularly relevant for the purposes of para 83(3)(c). Based on the test developed by the Divisional Court in Loc Le v. O’Grady and Yundt v. Parker, once I determined that the reason this application was brought is that the Tenant has attempted to secure or enforce her legal rights—i.e. the Tenant would have been able to continue to occupy the rental unit had she agreed to pay the $1,200.00—I am required to dismiss the Landlord’s application. [See Yundt v. Parker, 2014 ONSC 1805 (CanLII), para 24 and 25]__________________
N12 failed - issued in retaliation for complaining about maintenance:
"29. YC stated that she has lived with her daughter, AL, and AL’s family for twenty years, her grandchild is now 16 years old and she is ready for some peace and quiet. Her husband resides in a nursing home close to the rental unit. She would be able to travel by bus to visit him. Currently, since her daughter’s home is in another town, it is a half hour drive to the nursing home.
30. The Tenant submitted that she believes that the N12 notice was served in response to the T6 application filed. According to the Tenant, in the past AL has threatened to serve a N12 notice after the Tenant complained about a maintenance issues. The Tenant submitted that these past eviction threats were made in person, over the phone and in text messages. Copies of text messages between the Tenant and AL were submitted into evidence.
31. The Divisional Court’s decision in Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792 (‘Salter’) held that the question to be determined in this type of application is whether a landlord intends to occupy a rental unit in good faith, not whether that intention is reasonable.
32. Therefore, I find on a balance of probabilities based on the evidence before me that YC in good faith intends to occupy the rental unit.
33. It should also be noted that paragraph 30 of the Salter decision stated the following:
The legislature has conferred upon the Tribunal a broad discretion in s. 84(1)(a) to refuse an order granting eviction "... unless satisfied, having regard to all the circumstances, that it would be unfair to refuse [the landlord]". The Tribunal can weigh the overall circumstances relevant to the situation of both the landlord and the tenant to provide what the Tribunal perceives to be a fair result.
[...]
35. Subsection 83(2) of the Act goes on to say that “the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).” More specifically, subsection 83(3)(c) of the Act says that: “without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that, the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.”
36. Based on the evidence before me, I am satisfied that this application for eviction is solely in retaliation to the Tenant’s attempts to enforce her legal rights to require the Landlords to maintain the rental unit. Not only has the Landlord threaten eviction by way of a N12 notice in the past in response to the Tenant’s requests for maintenance, this N12 notice was given to the Tenant on August 16, 2017 exactly two weeks after the Tenant finally filed this maintenance application, CET-68675-17. Those facts, coupled with the Landlords belief that they do not have to complete the repairs because YC has limited financial means, satisfy me that the eviction must be refused in accordance with subsection 83(3)(c) of the Act."
_______________________
"Further and in any event, the Tenant has led persuasive evidence that the Landlord is in serious breach of his obligations to maintain a sufficient temperature in the unit. Refusal of this application is mandatory under s.83(3)(a) of the Act where I am satisfied that the Landlord is in serious breach of his responsibilities under the Act."
"7. Here, based upon the totality of evidence before me, and drawing inferences from the evidence as I am permitted to do in Fava; I am not satisfied that the N12 Notice was served in good faith. While perhaps a fine distinction, the mere act of ousting the Tenant from his incumbency will make the unit available for the Landlord’s residential use. However, I am satisfied, based upon the evidence provided, that the service of the N12 was done to evict this Tenant, rather than a desire on the part of the Landlord to re-integrate the separate parts of his home for his own living use.
8. While the Landlord described that he simply wants to retire and stop being a Landlord, he conceded in response to questions, that he rents out two other properties to tenants in Brampton. He qualified this original statement in his affidavit – required under s.72(1) of the Act – but I find this does not burnish the credibility of his evidence.
9. On the totality of evidence provided, I prefer the evidence of the Tenant and LG to the Landlord. The Tenant described that he and the Landlord had a reasonably amicable relationship until about the Fall of 2017 when the Landlord discovered that LG had moved into the unit and the Tenant and LG were living there as a couple. The Tenant described that the Landlord’s initial negative reaction to LG living in the unit is reflected in the N7 Notice of Termination served upon the Tenant by the Landlord in or about February 2018 (which was submitted into evidence at the hearing). In that notice, the Landlord contended “The Landlord rented the basement to the Tenant with the expectation [that] only one person would reside there, since the Landlord pays the utilities he can show the Board the utilities have increased as a result of another person [LG] living their [sic]…”
10. The totality of evidence before me leads me to an inference that the N12 was served, not to reclaim the unit for the purposes of residential use, but to oust this tenant. I do not believe this constitutes “good faith” for the purposes of the Act.
11. The Landlord’s application fails the good faith requirement under s.48(1) of the Act and it must be dismissed.
12. Further and in any event, the Tenant has led persuasive evidence that the Landlord is in serious breach of his obligations to maintain a sufficient temperature in the unit. Refusal of this application is mandatory under s.83(3)(a) of the Act where I am satisfied that the Landlord is in serious breach of his responsibilities under the Act.
13. The Landlord has an obligation to provide a heating system capable of maintaining a room temperature of 21 degrees. The Tenant presented persuasive evidence, including various temperature readings across a wide number of dates, showing that the temperature in the unit was far below this required level required under the Toronto Municipal Code and stayed that way.
14. While the Landlord did not seriously dispute the Tenant’s allegations that the furnace in the home is not capable of generating a sufficient amount of heat for the unit, he contended that the Tenant’s temperature readings resulted from the Tenant holding open the door to the unit during his exterior smoke breaks. I do not find this evidence from the Landlord to be credible or compelling or in any way responsive to the Tenant’s allegations of serious breach.
15. Based upon the totality of evidence before me, I am satisfied that the Landlord is in serious breach of his obligations under the Act as the residential complex does not have a heating system capable of maintaining a temperature in the unit of 21 degrees. As such, under s.83(3) of the Act, notwithstanding my conclusions re: the good faith of the notice, refusal of this application is mandatory in any event.
16. In light of my conclusions above, the application shall be dismissed. It is unnecessary for me to address the myriad of other grounds raised by the Tenant at the hearing for dismissing this application."
____________________________
As well, even before we consider RTA subsection 83(3)(c), the act of retaliation for the tenant complaining / filing applications can throw doubt on the bona fides / genuine intent to occupy the unit for residential use, which is exactly how this N12 was dismissed without even invoking RTA subsection 83(3)(c).
"6. The Landlords did not contest any of the Tenant’s evidence about this part of the history between the parties. It is uncontested that the Tenant has continued to complain frequently about many issues in the rental unit, to both the Landlords and to the City of Toronto, from the date of his first written complaint. The Tenant has filed three T2 applications (all in 2015) and more recently he has filed a T2/T3/T6 application.
7. At the hearing the Tenant submitted a copy of a handwritten note from LB, dated July 27, 2015. This note addresses a request from the Tenant for air conditioning and then goes on to say: “If you not happy again, we don’t need any more complite [I read this as ‘complaints’] I make my decition[sic] to give a notification to move out [illegible] 60 day.”
8. On or about September 19, 2015 the Landlords served the Tenant with an N5 Notice to End your Tenancy For Interfering with Others, Damage or Overcrowding (‘N5 notice’) and an N7 Notice to End your Tenancy For Causing Serious Problems in the Rental Unit or Residential Complex (‘N7 notice’). The termination date on both of the notices is October 11, 2016.
9. At the hearing the Tenant submitted a copy of a handwritten note from LB, dated September 27, 2015. This note reads as follows: “I did not [receive] an answer about you move out by the end of the month. Tomorrow I going to get a court order and the sheriff to put outside your property.”
10. On September 28, 2015, the Landlords filed an L2 application to terminate the Tenant’s tenancy based on the N5 notice and the N7 notice (file number TSL-66798-15).
11. Also on September 28, 2015, the Tenant filed a T2 application against the Landlords, alleging that they substantially interfered with his reasonable enjoyment by occupying a storage space within the rental unit (file number TST-66833-15).
12. On October 28, 2015 the parties attended the hearing of the Landlords’ L2 application based on the N5/N7 notices. At that hearing the Board found that the N5/N7 notices were defective and so the Landlords withdrew their application.
13. On December 9, 2015 the parties attended the hearing of the Tenant’s T2 application. On December 23, 2015, order TST-66833-15 was issued, finding for the Tenant and ordering the Landlords to pay the Tenant $375.00.
14. On December 30, 2015, the Landlords served the Tenant with an N12 notice to terminate the tenancy for own use (the ‘first N12 notice’). This N12 notice indicates that LB intends to move into the rental unit. The Tenant testified that in the envelope with this N12 notice there was also a copy of order TST-66833-15 and a cheque for $375.00. The Landlords did not contest the Tenant’s evidence about what was in the envelope with the first N12 notice.
[...]
22. At the hearing the Tenant submitted that the Landlords do not, in good faith, intend to have RB move into the rental unit. The Tenant submitted that the Landlords’ primary intention is to evict the Tenant because he complains about tenancy issues.
23. It is not easy to prove that a Landlord does not have a genuine intention to possess a rental unit for their own residential occupation, even in circumstances where there is evident animosity between the parties. However, in this case, based on the uncontested evidence (as weighed against RB’s testimony), I am not satisfied, on a balance of probabilities, that the Landlords genuinely intend for RB to occupy the rental unit. I say this for the following reasons.
24. The Landlord LB wrote a note to the Tenant on July 27, 2015, telling the Tenant that if he complains any further, LB will make a decision to give the Tenant 60 days’ notice of termination. The gist of this note is that if the Tenant complains, the Landlords will give him notice of termination. It is possible, given that English is not LB’s first language, that the “if” at the beginning of the note should not be given much weight and that the gist of the note is that because the Tenant has complained the Landlords will give him notice of termination. Either way, this note is evidence of the Landlords’ intention to evict the Tenant if he continues to complain or because he has complained.
25. Two months after the July 2015 note, in September 2015, the Landlords followed through with their threat, serving the Tenant with N5 and N7 notices. The Landlords then filed an application to evict the Tenant. On October 28, 2015, the parties learned that this application was unsuccessful. Having not succeeded with this application, the Landlords served the first N12 notice in late December 2015. A further indication of the Landlords’ intention is that this N12 notice was in an envelope with the Board’s order on the Tenant’s T2 application and the payment the order requires the Landlords to make. The fact that these items were packaged together is an indication that the Landlords connected the Tenant’s application (and its result) with their N12 notice.
26. The first N12 notice was defective, the application based on the second N12 notice was dismissed, then the Landlords served the N12 for this application.
27. Based on the handwritten note of July 27, 2015 and all of the subsequent events, it appears more likely than not that since making the threat to evict the Tenant for complaining, the Landlords have had a continuing overriding intention to evict the Tenant, who continued (and continues) to complain. This continuing intention is demonstrated by the fact that, since the note of July 27, 2015, the Landlords kept serving the Tenant with notices of termination and with applications to evict him. When they were unsuccessful in their first L2 application (based on the N5 and N7 notices), they served the Tenant with multiple N12 notices (including the one that is the basis for this application) and another N7 notice.
28. Landlords are entitled to enforce their legal rights through the service of notices of termination and the filing of applications. Doing so is not, in itself, evidence that calls into question a landlord’s good faith intention to occupy a rental unit. However, in the context of LB’s threat to evict the Tenant for complaining (or if he complains) and the Tenant’s continued complaints, the Landlords’ third N12 notice appears to have been served, more likely than not, mainly for the purpose of evicting the Tenant because the Tenant continues to complain about problems in the rental unit (and because the Landlords’ other attempts to evict the Tenant were not successful).
29. The Landlords have the burden to establish, on a balance of probabilities, that the Landlords have a genuine good faith intention that RB will occupy the rental unit. As stated above, based on the uncontested evidence as weighed against RB’s testimony, I am not satisfied that the Landlords have met this burden.
30. The Landlords’ application shall therefore be dismissed."
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Other examples:
Refused N4 / L1 eviction due to landlord's deliberate interference with supply of gas and electricity to the rental unit:
"3. The Tenant owes $2,570.00 in arrears of rent and costs for the period ending November 30, 2009.
4. I have considered all of the disclosed circumstances as required under subsection 83(2) of the Residential Tenancies Act, 2006 (the ‘Act’) and find that, as the Landlord was in serious breach of his statutory obligations at the time this application was heard, eviction must be refused pursuant to subsection 83(3)(a) of the Act.
5. The Landlord has deliberately interfered with the supply of gas and electricity to the rental unit. This was contrary to the Act.
6. The Ministry of Municipal Affairs and Housing’s Investigations and Enforcement Unit had already informed the Landlord that such actions were illegal when it directed him to have gas service to the unit restored just two weeks before he had the electricity to the unit cut off in the same manner.
7. As eviction could not be ordered under this application, arrears of rent could only be ordered up to the end of the month in which the application was heard. The Landlord is also entitled to recover is application filing fee.
It is ordered that:
1. Termination of the tenancy is refused pursuant to subsection 83(3)(a) of the Act.
2. The Landlord shall immediately cause hydroelectric service to the unit to be restored and shall not unlawfully interfere with it again.
3. Non-compliance with this order by the Landlord may be reported to the Investigations and Enforcement Unit for such further action as that agency may deem appropriate in the circumstances.
4. The Tenant shall pay to the Landlord $2,400.00 in arrears of rent for the period ending November 30, 2009.
5. The Tenant shall also pay to the Landlord $170.00 for the cost of filing the application.
6. If the Tenant does not pay the Landlord the full amount owing on or before December 11, 2009, the Tenant will start to owe interest. This will be simple interest calculated from December 12, 2009 at 2.00% annually on the balance outstanding."
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Refused N4 / L1 eviction due to landlord's failure to deal with a serious plumbing issue:
"22. Pursuant to s. 83(3)(a) of the Act the Board must refuse to grant eviction where it is satisfied that the landlord is in serious breach of the landlord’s responsibilities. Failing to deal with a significant plumbing issue for months is a serious breach of a landlord’s responsibilities. The Landlords here are not entitled to an eviction order."
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"Did the LTB Fail to Review the Circumstances?
[25] Prior to ordering an eviction, the LTB must consider and apply the relief from eviction provisions contained in s. 83 of the RTA:
s. 83(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[26] Once the LTB has considered the circumstances of both parties, it may exercise its discretion to refuse or delay an eviction:
s. 83(1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the order of eviction be postponed for a period of time.
[27] In addition to this discretion to refuse an eviction, the LTB is obliged to refuse an eviction if it is satisfied, among other things, that the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards, or the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights. [see s. 83(3) (b) and (c)].
[28] Section 204(1) of the RTA allows the LTB to include in an order whatever conditions it considers fair in the circumstances. This provision allows the LTB, in refusing to evict a tenant, to attach conditions that one or both of the landlord and tenant must follow.
[29] In my view, the LTB made two errors of law in its s. 83 analysis.
[30] The first is that it did not, in its decision, deal in any way with the appellants’ contention under s. 83(3) that the application for eviction was brought in retaliation for their having complained to the City about the lack of heat in their rental unit. This issue was clearly raised by the appellants and cannot fall under a general consideration of circumstances under s. 83(2).
[31] The second is that although it considered all of the circumstances in determining the eviction should be postponed, it failed to consider all of the circumstances in determining whether the eviction order should issue at all or with conditions.
[32] The powers under section 83 are generally regarded as relief from eviction powers. It provides an avenue to tenants for relief from eviction in two ways: In subsection (a) by allowing the LTB to refuse the eviction order on conditions that may be imposed under s. 204(1), provided it is not unfair to the landlord to do so; or in subsection (b) by ordering the postponement of the eviction.
[33] The complaint by the respondents was that the appellants were refusing to pay their share of the utility costs. The appellants were refusing based on their understanding that the costs of utilities were included in the rent. Once the LTB concluded that utilities were to be paid in addition to rent, it was incumbent upon it to consider whether to refuse eviction on conditions such as payment of the utilities by the respondents on an ongoing basis along with the payment of arrears, whether the appellants would be able to make such payments if ordered, and whether such an order would be unfair to the respondents. Its failure to do so amounts to an error in law.
[34] The court recognizes that the LTB deals with a high volume of cases and that it is not required to address every issue raised or argument made by the parties. However, in this case, the reasons are perfunctory and there is no indication that the LTB considered the matters it was required to consider in sections 83(1) and 83(3) of the RTA.
[...]
Conclusion
[37] The appeal is granted in part. The matter is remitted to the LTB for a new hearing on: (1) Whether the reason the eviction was sought by the respondents is that the tenant complained to a governmental authority of the respondents’ violation of a law dealing with health, safety, housing or maintenance standards; (2) Whether the reason the eviction was sought is that the appellants attempted to secure or enforce their legal rights; and (3) Whether, having regard to all of the circumstances, it should refuse to grant the application with or without conditions and whether to do so would be unfair to the respondents."
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Failed attempts to invoke mandatory refusal of eviction under RTA section 83 (while discretionary relief / delay of eviction was sometimes granted):
"Alleged errors of law
A. Did the Member consider Section 83(3) of the Act?
[11] The tenant/appellant suggests that the Member’s reasons were insufficient in terms of considering Section 83(3) of the Act. We disagree. The Member was alive to the application of Section 83. He had before him evidence of the tenant's complaints regarding the landlord's management of the premises. He referred to Section 83(2) which requires that the Board, "not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its power under (1)".
[12] Section 83(3) states:
Without restricting the generality of (1) the Board shall refuse to grant the application where satisfied that…
[13] The subsection then lists certain specifically enumerated circumstances.
[14] In his reasons, the Member indicated that he "considered all of the disclosed circumstances in accordance with Subsection 83(2) and finds that it would not be unfair to postpone the eviction."
[15] Sufficiency of reasons does not demand that a member enumerate every subsection and describe its impact. It is clear from the entirety of the reasons that the Member considered whether to extend or truncate the tenancy and, based upon his finding of the tenant being a superintendent, he chose not to extend same. Inherent in this finding is consideration of the related Subsection 83(3) which would have caused the Member to refuse the application."
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"The wording in s. 84(2)(a) makes it clear that the landlord must be in serious breach of its responsibilities at the time of the hearing. This subsection is not triggered by the landlord having been in serious breach of responsibilities at some point in the past. Nor is it triggered by the potential as of the date of the hearing that the landlord will be in serious breach at some time in the future."
(18) Puterbough v. Canada (Public Works & Government Services), 2007 CarswellOnt 2222, [2007] O.J. No. 748, 55 R.P.R. (4th) 189
"20 The balance between landlord and tenant rights is achieved through the caveats contained in ss. 84(2), (3) and (4). In interpreting s. 84(2)(a), it is instructive to consider the nature of the restrictions in the other subsections of s. 84(2). Subsections 84(2)(b) to (e) deal with situations where tenants have been pursuing their legal rights as tenants, and in order to thwart their efforts, the landlord is seeking to evict them. The Tribunal is instructed not to grant an eviction order in these circumstances because the landlord is acting illegally, unfairly or in bad faith. Section 84(2)(a) should be interpreted as part of this effort to ensure that landlords cannot thwart the legitimate rights of tenants through seeking eviction orders. Read in context, the goal of s. 84(2)(a) is to ensure that landlords cannot resort to the eviction of tenants as a method of abdicating or sidestepping their mandated responsibilities under the Act. Additionally, landlords cannot be the cause of the circumstances upon which they then rely in order to have tenants evicted from the premises.
21 To accept the Tenants' argument that all breaches of a landlord's responsibilities that raise health and safety concerns trigger s. 84(2)(a) would render meaningless the word "serious" in that subsection — at least in regard to a breach of the landlord's responsibility under s. 24(1) to comply with health and safety standards in regard to a rental unit. The Act could be worded such that any breach of a health or safety standard would require the Tribunal to deny an application for an eviction order, but it is not. Instead, in regard to all landlord responsibilities, it adds the qualifier that any breach has to be serious before the Tribunal is obliged to deny the landlord's application for an eviction order. Something more than the fact of a breach of one of the identified responsibilities is required to make the breach a serious breach.
22 Common sense also dictates that the term "serious breach", in the context of the landlord's ss. 24, 25 and 26 responsibilities, means more than the rental premises being in poor condition and in need of significant work. To accept the Tenants' strict liability interpretation would reduce eviction to an option rarely available to a landlord despite the structure being old and in need of extensive and costly repairs and the property being of insignificant value. Such an interpretation could require a landlord to make significant capital improvements to rental property simply to get permission to evict the tenants and demolish the premises. That flies in the face of common sense. In short, a serious breach of the landlord's responsibilities is not established simply by the rental premises being in need of extensive repairs.
23 This is supported by Lypny v. Rocca (1988), 63 O.R. (2d) 595 (Ont. Div. Ct.), a case in which the Divisional Court considered the sections in the Landlord and Tenant Act, R.S.O. 1980, c. 232 that virtually mirrored ss. 24, 53(1), and 84(2) (a) of the Act. One notable difference was that there was no requirement under the old s. 121(3)(a) [now s. 84(2)(a)] that the landlord's breach of responsibilities be a serious breach.
24 In Lypny, the landlord had been required by the municipality to make certain structural changes to the demised premises or to convert them to non-residential use. The landlord could not afford the structural changes, nor could she afford to correct other identified defects. She brought an application for a writ of possession on the ground that she wanted to convert the premises to non-residential use. The tenant objected and counterclaimed for an abatement of rent. The Divisional Court found that the landlord wished to terminate the tenancy for the purpose of complying with the municipal order in the only way it was possible for the landlord to do so; namely, by converting the use of the premises into a non-residential use. The Court concluded that:
"a landlord who seeks possession which is essential in order to comply with s. 96 and thereby cure a breach is not ... in breach of her responsibilities" under the Landlord and Tenant Act within the meaning of s. 123(3)(a) of that legislation. This case focused on the landlord's response when faced with defects or deficiencies, and whether that response had been reasonable and responsible; it did not focus simply on the existence of defects or deficiencies.
25 The only case to which the Court has been referred regarding the meaning of "serious breach" in s. 84(2)(a) of the Act is Sage v. Wellington (County), [2005] O.J. No. 5727 (Ont. Div. Ct.), where the Divisional Court stated:
The term "serious breach" found in s. 84(2) of the TPA is a statutory standard. The seriousness of the breaches by the County is shown by the failure of the water supply to meet the water quality standards of the Ministry of Health and Ministry of Environment that apply throughout the province. I find that the breaches were on-going for several years, there was a causal connection between the breaches and the contaminated well water, the County took no steps to fix the cause of the contamination, and the risk to health and safety was grave. The breaches were serious for the above reasons.
26 Although the reasons are brief, they do imply that a balanced and contextual approach was adopted in interpreting s. 84(2) (a) — one that took into account such factors as the length of time during which the deficiency existed, the causal connection between the landlord's failure to repair and the resulting deficiency, the absence of any efforts on the part of the landlord to deal with the deficiency, and the severity of the health and safety risks produced by the deficiency.
27 In all but the Puterbough decision, the Tribunal referred to Sage v. Wellington and Interpretation Guideline 7 — "Relief from Eviction: Refusing or Delaying an Eviction" published by the Tribunal to assist parties in understanding the Tribunal's usual interpretation of s. 84 of the Act and to provide guidance to Members so as to promote consistency in decision-making. Members of the Tribunal are not required to follow the Guidelines, and the Guidelines have no bearing on this Court's interpretation of s. 84(2)(a). Nevertheless, it is of interest that Guideline 7 recommends that, in deciding whether a breach of a landlord's responsibility to repair is serious within the meaning of s. 84(2)(a), the Tribunal consider a variety of factors, such as whether the breach of the duty to repair has resulted in a health or safety concern, the impact any repair problem has had on the tenant, what actions the landlord has taken to deal with the repair problem, whether the tenant complained to the landlord about a longstanding repair problem, whether the landlord was aware of the problem prior to any application being brought, and whether the tenant contributed to the problem. In my view, all of these factors are relevant to a s. 84(2)(a) analysis of whether a breach of the landlord's duty to maintain premises in a good state of repair is a serious breach and illustrate that a pragmatic, balanced and contextual approach should be applied in the interpretation of the meaning of "serious breach of the landlord's responsibilities" under s. 84(2)(a) of the Act.
(b) Breach in Existence at time of Hearing
28 The wording in s. 84(2)(a) makes it clear that the landlord must be in serious breach of its responsibilities at the time of the hearing. This subsection is not triggered by the landlord having been in serious breach of responsibilities at some point in the past. Nor is it triggered by the potential as of the date of the hearing that the landlord will be in serious breach at some time in the future. This latter point is particularly important in the context of these five appeals. In a number of cases, inspectors warned that major repairs or renovations would have to be made to the rental unit in the near future if the unit were to continue to be used for residential purposes. This does not necessarily mean that, at the time of the hearing, the landlord was in breach of any responsibility."
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"The new legislation has replaced "a reason" with the narrower "the reason". This indicates that the landlord's sole or primary reason for the termination of the tenancy is retaliatory. While the termination of may be partially vindictive in the eviction of Mr. Walton, I do not find it to be the substantive reason when viewed with the overall impact of evicting the "innocent". Mr. Culliton's request to deny the termination of the tenancies based on section 84(2)(b) and (c) is therefore denied."
(19) Divisional Court in MacNeil v. 976445 Ontario Ltd., 2005 CarswellOnt 10528, [2005] O.J. No. 6362
"Tribunal Findings
24 Board McKaig stated the landlord gave good faith notice to all tenants to vacate the rental unit. In determining good faith I must look at the intent of the landlord at the time the notices were given. I find that the landlord made a business decision, rather than a personal decision, to close the mobile home park. I am satisfied that Ms. Becker explored the alternatives to a reasonable degree and made her decision based on those reasons. The test is not whether hex' business decision was good, bad or indifferent, but whether or not it was made in good faith.
25 While it is evident, based on the evidence, that there have been long-standing tensions between the landlord and the Waltone, I find it unreasonable that there was motive to evict the entire mobile home park to retaliate for a dysfunctional relationship with one tenant. Only one case precedent is on point with the current applications. In consideration of Mr. Culliton's submission of Kingsway Villa Ltd. v. Ethier [1993 CarswellOnt 3084 (Ont. Gen. Div.)], the case draws a very similar chronology and relies on the previous Landlord Tenant Act. Mr. Cappa correctly argued that in that case, the landlord proceeded to evict complainants only, and as such should be distinguished from the application before me where there seemed to be only one complainant and all others were being evicted as well. I agree with the argument of Mr. Cappa, and additionally find this case distinguishable based on the wording of the successor Tenant Protection Act, 1997. I rely on paragraph 74 of the decision that includes the wording of the previous legislation.
s. 121(3) (b) a reason for the application being brought is that the tenant has complained to any governmental authority of the landlord's violation of any statute...or by-law;
s. 121(3) (c) a reason for the application being brought is that the tenant has attempted to enforce his or her legal rights.
26 The new legislation has replaced "a reason" with the narrower "the reason". This indicates that the landlord's sole or primary reason for the termination of the tenancy is retaliatory. While the termination of may be partially vindictive in the eviction of Mr. Walton, I do not find it to be the substantive reason when viewed with the overall impact of evicting the "innocent". Mr. Culliton's request to deny the termination of the tenancies based on section 84(2)(b) and (c) is therefore denied.
27 The landlord is not in serious breach of her obligations under section 110 of the Act. While the tenants may have their own claims against the landlord for failing to adequately maintain the roads and snow removal. I heard no evidence to suggest that they were in such poor shape as to be considered a "serious breach". With respect to s. 110(1) (c), I find that although problems exist with the sewage system, the landlord has issue by taking remedial action and a septic system is currently in place and remains so except as directed by the municipality. Mr. Culliton's request to deny the termination based on section 84(2) (a) is therefore denied."
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Failed on mandatory refusal under RTA section 83, but discretionary relief (in the form of delay of eviction) granted:
"Section 83
39. The Tenant submitted that the Board must deny the eviction pursuant to subsection 83(3)(a) of the Act because the Landlord failed to provide adequate heat in the unit from October 2016 to December 2016.
40. In the Tenants’ position, this constitutes a serious breach of the Landlord’s responsibilities for the purposes of s.83(3)(a) of the Act. Therefore, this provision of the Act prevents me from granting the Landlord’s application for termination and eviction.
41. The wording in s. 83(3)(a) is in the present tense meaning that the serious breach must be ongoing at the time of the hearing before the Board (see Puterbough v. Canada (Public Works & Government Services [2007] O.J. No. 748 (Ont. Div. Ct.) at para. 28).
42. The undisputed evidence is that the problems with the heat in the unit were, for practical purposes, resolved in December 2016 and that the City of Toronto officially closed its file on February 1, 2017 (the day before the hearing).
43. I therefore conclude that, the Landlord was not in serious breach of its obligations under the Act/regulations to provide heat to the unit as of the date of the hearing.
44. Because I have no evidence of any present or ongoing breach by the Landlord of its obligations under the Act, I am not precluded from granting the Landlord’s application by s.83(3) of the Act.
45. Further, I am not satisfied that the N13 was issued because of the Tenants’ complaints about heat in the unit. The evidence shows clearly that the renovation project involving all units – and the N13 notices – were contemplated long before the Tenants complained about the lack of temperature in their unit.
46. The Tenants have requested that I use my discretion under 83(1) of the Act to delay the eviction until June 30, 2017. The Tenants have been residing in the unit for nearly 20 years. They have strong ties to neighbourhood including having a child in a local school. It was the plain to me that the entire process has been stressful on the Tenants.
47. The Landlord largely opposed any long delay in granting an order of eviction citing that Tenants have been aware of the construction project since May 2016. Therefore, the Landlord’s legal representative agreed to only a short postponement in any eviction.
48. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act and find that it would not be unfair to postpone the eviction until May 31, 2017 pursuant to subsection 83(1)(b) of the Act.
49. Under the circumstances, I think it is reasonable, given the longstanding residency of the Tenants, to grant a short delay in the eviction process to allow them to order their affairs. In this way, the interests of the Tenants may be balanced against the interests of the Landlords in proceeding with their renovation project."
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Failed on mandatory refusal under RTA section 83, but discretionary relief (in the form of delay of eviction) granted:
"10. I am satisfied based on the evidence before me that the Landlord’s son and family genuinely intends to move into the rental unit and therefore I am satisfied the Landlord has met the “good faith” requirement set out in subsection 48(1).
Section 83:
11. Although the case law as stated above dismissed the ‘motives’ test in interpreting good faith; all applications for termination including those brought under section 48 of Act, must bear the scrutiny of section 83. This section contains both a mandatory [83(3)] and discretionary [83(1)] component.
12. Pursuant to subsection 83(3) of the Act:
Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;….
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights; [Emphasis added]
13. The Tenants submitted that the Board must deny the eviction pursuant to subsection 83(3)(a) of the Act because the Landlord is in serious breach of the Landlord’s responsibilities under this Act or of a material covenant in the tenancy agreement. The wording in subsection 83(3)(a) is in the present tense meaning the serious breach must be ongoing at the time of the hearing before the Board.
14. The Tenants raised the following maintenance issues: insufficient quantity of hot water, cold draught in the living room, basement not maintained to 20 degrees Celsius on very cold days, the electric stove is working however not able to modulate burners with any degree of certainty, basement door cannot be locked properly in the summer months because the wood swells, lock is broken on 2nd floor sliding glass door, and a hall light is out.
15. As I stated at the hearing, the issues raised individually or collectively do not support a finding that the Landlord is in serious breach of a material covenant in the tenancy agreement namely maintenance.
16. It is also the Tenant’s position that the N12 notice was done in retaliation because they had attempted to secure their legal rights by calling the City of Toronto Municipal Standards Office and subsequently filing a Maintenance and a Tenant’s Rights application with the Board in 2014. There is no dispute that there are no outstanding orders issued by the City.
17. As I stated at the hearing, having regard for the evidence and the circumstances in this case, I am not satisfied that the Landlord had initiated the N12 notice because the Tenants had attempted to secure their rights under the Act. The events are too remote to suggest the N12 notice was an act of retaliation. I am satisfied that the catalyst for filing the N12 notice was the Landlord’s recent diagnosis and the Landlord’s son’s desire to have more room for his family.
18. Subsection 83(1) of the Act requires that I consider all the circumstances in the case including the Tenants’ and the Landlord’s situations to determine if it would be unfair to refuse to grant eviction. Subsection 83(1) states:
Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
19. It was the Tenants’ evidence that SM has been diagnosed with papillary thyroid cancer 13 years ago. He is currently engaged in self-administered alternative therapies that are demanding both in time and money. While the side effects of these therapies can be severe, debilitating and unpredictable, the Tenants do not wish to stop or abandon these procedures to spent time organizing a change in residence due to the Landlord’s wishes. It is important that SM has a stress free environment as possible during his treatment. In addition, the Tenants do not have the funds to finance the cost of the move let alone the additional expense of a higher rent. The Tenants have been living in the unit for the last eight years. If they were required to vacate the unit they request that the eviction be delayed until September or October to facilitate finding another place to live.
20. The Landlord was not opposed to the delay of one month to April 30, 2016 however any further delay would be prejudicial to the Landlord citing her own condition and the need of a care giver to assist her.
21. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, including the competing and very compelling needs of the parties and find that it would not be unfair to postpone the eviction until May 31, 2016 pursuant to subsection 83(1)(b) of the Act."
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Failed on mandatory refusal under RTA section 83, but discretionary relief (in the form of delay of eviction) granted:
"Analysis
15. It was first argued that the sequence of events demonstrated that the Landlord did not, in good faith, require the rental unit for residential occupation. The Tenant relied on a Landlord and Tenant Board (the ‘Board’) decision (TSL-19173/TST-02088 issued February 17, 2009), with which I concur, that says:
On any application before the Board, the burden of proof rests on the person asserting any given fact to lead sufficient evidence to establish that fact on the balance of probabilities. This means that in this application, the onus is on the Landlords to prove that it is more likely than not that the female Landlord’s true intention is to live in the rental unit and not just stay there temporarily until she decides in her own mind what is happening in her marriage.
16. I find the Landlord has met that burden on a balance of probabilities for the following reasons:
(a) I was satisfied after hearing the testimony of the Landlord and his spouse that their marriage was at an end and that their separation was genuine. Their testimony, especially that of the spouse who was excluded from the hearing room while the Landlord testified, was consistent as to their frustrations with each other and the reasons they were separating;
(b) I was satisfied that they were currently living separate and apart in the unit above the rental unit for the time being, something that often occurs until separation terms are arrived at;
(c) I was satisfied that the arrangement the Landlord and the spouse contemplated, where the spouse and child would live below the Landlord’s unit, was not suspicious and is, in fact, ideal considering the best interest of the child. It would allow them to live separate and apart, yet provide for convenient access to the child by the Landlord;
(d) I was satisfied that, apart from the question of the Landlord’s income, there were no material terms of the separation agreement which should arouse suspicion. It was a standard form agreement, particularly as to reconciliation which is a term commonly inserted into such agreements. There was no indication before me that the parties had added the clause so that they could simply reconcile after evicting the Tenants; and
(e) I am satisfied it is not unusual for separated parties to remain separated for years or forever without obtaining a divorce.
17. As noted above, the only odd circumstance before me involved the issue of the Landlord’s income. This is because the Landlord appeared to suggest on the one hand that CPP is a significant source of his income and that he relies on the rental income from the unit, while the separation agreement says his income is $100,000.00.
18. I am not satisfied however that this suggests bad faith. The Landlord also testified that he owns rental properties abroad, which may account for some additional income not spoken of at the hearing. It may also be that the Landlord did not, in fact, know that he had acknowledged that income where he did not receive formal independent legal advice. It may also be the case that the Landlord is winding down assets unmentioned at the hearing, where the Landlord also testified as to having been told he has only two or three years to live as a result of the health problems above. In any event, his decision to repossess the rental unit need not be a reasonable one (Salter v. Beljinac, [2001] O.J. No 279 (Div. Ct.)).
19. I therefore find the Landlord in good faith requires possession of the rental unit for the purpose of residential occupation.
Section 83 of the Act
20. In Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), [2009] O.J. No. 2659 (Div. Ct.) (‘Caputo’), a landlord appealed a Landlord and Tenant Board (the ‘Board’) decision which said that: “on balance, the eviction of the tenant seems more unfair than denying the landlord his application to evict” pursuant to subsection 83(1) of the Act, which provides that:
Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
21. The court in Caputo concluded that: “section 83(1) requires that the Board consider all the circumstances even if the Board member finds that the application is made in good faith.” It continued: “the legislature has given the Board broad discretion to refuse to grant an application for an order evicting the tenant, notwithstanding a finding that the application was made in good faith and that the landlord genuinely intends to occupy the residential unit.”
22. On balance, I find it would be unfair to refuse to grant the Landlord’s application in these circumstances. The Landlord proved on a balance of probabilities that his separation from his spouse was genuine and that he requires the rental unit for her occupation with their son. In fact, this solution seems ideal in the circumstances and objectively in the best interests of the child.
23. This is not to suggest that the Tenant does not have good reasons to want to stay in the rental unit. Her concerns, however, are primarily pecuniary in nature, where the monthly rent is below market rent and where the Tenant is concerned about finding a similar rent in the same neighbourhood where she wants to remain for the sake of her children. These are issues that are appropriately addressed by postponing eviction, not refusing it.
24. It was also suggested that the Landlord’s misbehaviour should affect consideration of section 83 of the Act, and that it should result in the refusal of this application for termination. I disagree for two reasons. First, because I am not satisfied that the Landlord “is in serious breach of the landlord’s responsibilities (my emphasis)” in the Act pursuant to subsection 83(3)(a) of the Act, where he might have been in the past. The wording in subsection 83(3)(a) is in the present tense, meaning the serious breach must be ongoing at the time of the hearing before the Board, and the evidence before me is that it is not. Second, these are issues that could have been resolved in applications before the Board when they were occurring. Section 83 of the Act requires consideration of all of the circumstances but I am not satisfied that these should have any bearing on the issue of relief.
25. In view of the Tenant’s concerns about schools and finding accommodation in the same neighbourhood, I instead find that a lengthy extension of eviction to December 31, 2016 would be appropriate.
26. Therefore, having considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, and find that it would not be unfair to postpone the eviction until December 31, 2016 pursuant to subsection 83(1)(b) of the Act."
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Failed on mandatory refusal under RTA section 83, but discretionary relief (in the form of delay of eviction) granted:
"11. The Tenant testified that the Landlords imposed an illegal rent increase of $20.00 per month, and made it clear that they wished to increase the rent by a larger amount. The Tenant, while agreeing to pay the $20.00 per month increase, after obtaining information from the Board, wrote to the Landlord claiming that the increase was illegal. The Tenant also claimed that she has complained to the Landlord about excessive noise, illegal entries and other problematic conduct. The Tenant has brought her own application against the Landlords that is currently scheduled to be heard on August 23, 2018 [TNT-06365-18]. The Tenant suggests that the notice of termination given to her on June 25, 2018 and this application are retaliation by the Landlords for these complaints by the Tenant and for the insistence by the Tenant on asserting her legal rights.
12. While I accept that there are currently difficulties in the relationship between the Landlords and the Tenant, I am satisfied on a balance of probabilities that the Landlords’ daughter in good faith intends to occupy the rental unit for residential purposes. As stated previously, it does not matter that the Landlord may have other additional reasons for wanting her daughter to move into this unit, or that there might be other options. The testimony of the Landlords’ daughter and of the Landlord, NN was not significantly shaken or undermined on cross-examination. The rationale for the intent to occupy the rental unit was clear and logical, and I find that the timing of the decision to give the termination notice has more to do with the beginning of HN’s school year than with any actions on the part of the Tenant.
13. I find that the Landlords in good faith require possession of the rental unit for the purpose of residential occupation by their daughter for a period of at least one year.
Subsection 83(3) Mandatory Refusal of Eviction does not apply
14. The Tenant argued that the reason the Landlords’ application is brought is that the Tenant attempted to secure or enforce her legal rights by refusing to agree to an illegal rent increase and by her complaints about noise and other conduct that are the subject of the Tenant’s application. She also argues that the Landlords are in serious breach of the Landlords’ responsibilities under the Act. She submits that, in such circumstances, subsection 83(3) of the Act requires that the Board must refuse to grant eviction.
15. Subsection 83(3) of the Act provides in part that the Board shall refuse an application for eviction where it is satisfied that the Landlord is in serious breach of their responsibilities under the Act [subsection 83(3)(a)], or that the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights [subsection 83(3)(b)].
16. In order to engage the mandatory refusal of eviction under subsection 83(3)(a), the Landlord must be in serious breach of the Act, and that breach must be continuing at the time of the hearing. Even if the allegations made by the Tenant are true, I am not satisfied that they constitute serious and continuing breaches of the Act. There is no evidence that the alleged illegal entries are continuing, and the other conducts described, although arguably breaches of the Act, do not rise to the level of “serious” breaches so as to trigger mandatory refusal of eviction.
17. In order to engage the mandatory refusal of eviction under subsection 83(3)(b) regarding enforcement by the Tenant of her legal rights, I must be satisfied that the Landlords sole or primary reason for the termination is retaliatory; it is not sufficient that retaliation or vindictiveness is part of the reason [MacNeil v. 976445 Ontario Ltd., [2005] O.J. No 6362 at para. 26 (Ont. Div. Ct.), leave to appeal to C.A. refused (‘MacNeil’)]. The provisions are triggered if the retaliation was ‘the reason” for the application. This is to be contrasted with the provisions of earlier legislation (the Landlord and Tenant Act) which mandated refusal of eviction if retaliation was “a reason” for the application.
18. I am not satisfied that the reason for the Landlords application is either the complaints by the Tenant or the attempts by the Tenants to enforce her legal rights. Rather, as I have already stated. I am satisfied that the reason for the Landlords’ application is that the Landlords’ daughter in good faith intends to occupy the rental unit for residential purposes. I also observe that the Landlord’s N12 notice of termination was given on June 25, 2018 and this application was filed on June 28, 2018, both of which predate the filing on July 4, 2018 of the Tenant’s application, so that application cannot have been the reason for this application. While the complaints and refusal to pay increased rent may well have been factors in the Landlords’ decision (as to which I make no determination), I am not satisfied that they are “the reason” for the application.
19. Therefore, I find that the provisions of subsection 83(3) requiring mandatory refusal of eviction do not apply in this case.
20. I wish to make it clear that there has been no determination on the merits during this hearing of any claims by the Tenant relating to the conduct alleged against the Landlords or the claims that the Landlords have breached any obligations under the Act. No evaluation of the existence or extent of any breach or whether a remedy is warranted has been made. Those claims are the subject of the Tenant’s application to be heard on another day.
Section 83 Discretion to Refuse or Delay Eviction
21. The Tenant has lived in the rental unit for more than 6 years, and does not wish to move. She states that she has been unable to find new accommodation, although she has been looking. While the Tenant has an understandable wish to remain in the rental unit, I must also consider the interests of the Landlords who, as the owners of the building, wishes to exercise their ownership rights so that their daughter can occupy the rental unit. On balance and in all the circumstances, I am satisfied that it would be unfair to refuse eviction entirely.
22. I conclude that, in the circumstances of this case, the Tenant ought to be allowed a further period of time in which she will have the opportunity to locate and secure alternate living arrangements and to move. There is no fixed and firm date by which the Landlords’ daughter must move to the basement. Given the circumstances, it would not be unfair to postpone eviction until September 30, 2018, to allow the Tenant more time to find new accommodation and move.
23. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to postpone the eviction until September 30, 2018 pursuant to subsection 83(1)(b) of the Act."
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"Whether the eviction should be delayed or denied
I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, and find that it would not be unfair to postpone the eviction until April 3, 2010, pursuant to subsection 83(1)(b) of the Act. As noted above, it is difficult for the Tenant to find suitable accommodation and therefore more time would be required for the Landlord and the Tenant to work together to find a mutually acceptable solution.
It is also pertinent to note that one of the Landlord’s arguments for resorting to conversion is that the litigation over the demolition permit would take a long time to conclude, so the Landlord would not be in a position to demolish the residential complex any time soon. This gives the parties more time to find a suitable home for the Tenant. I am also mindful that the repairs done to the residential complex by [Contractor’s name removed] are temporary and that further repairs would have to be done if the complex is not demolished. However, the temporary repairs should suffice for at least the coming year and it is unlikely that the Landlord would have to spend unreasonable amounts of money on maintenance during the delay in the eviction.
In my view the Tenant’s needs would be better served by delaying the eviction as opposed to denying it. [Street name removed] is not off the beaten track: it is an arterial road. Even if the Tenant remains in the residential complex, extensive renovations (rewiring, roofing etc.) would have to be done on the complex and her doctor testified that it is unlikely that the Tenant could remain in the complex during such work. Assuming she could stay in the complex, she cannot afford the rent for the whole complex, which would be preferable, as living in close proximity to others is likely to subject her to chemicals from the daily living of other tenants. The Tenant receives $990.00 a month from the Ontario Disability Support Program. Before her mother moved out, they shared the rent and in the absence of her contribution the Tenant is vulnerable to an eviction for non-payment of rent. The Landlord’s plan has the advantage of finding her affordable accommodation. The Landlord would purchase a suitable home and rent it to the Tenant for $500.00 including utilities. Denying the eviction would not be helpful to the Tenant in the long run."
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"Section 83:
30. The Tenant submitted that the Board must deny the eviction pursuant to subsection 83(3)(a) of the Act because the Landlord is in serious breach of the Landlord’s responsibilities under this Act or of a material covenant in the tenancy agreement. The wording in s. 83(3)(a) is in the present tense meaning the serious breach must be ongoing at the time of the hearing before the Board.
31. The Tenant raised a number of issues in support of his claim that the Landlord is in serious breach of its obligations.
32. First, the Tenant raises maintenance issues including: the Tenant’s window not being weather-tight, elevators not in very good condition, a one-time occurrence involving a flood in the locker room due to a burst pipe, and occasional issues involving the HVAC. These problems do not rise to the level of “serious” as contemplated by s. 83(3)(a) of the Act.
33. Second, the Tenant raises the discontinuance or reduction of services and facilities. Essentially the facts are not in dispute. When the hotel in the complex closed on or about June 15, 2012, a number of the hotel services or facilities that were available to the residential tenants were discontinued or reduced. The following services or facilities were discontinued: front entrance/lobby, valet parking, concierge, restaurant, outdoor patio, lounge, pool, convenience store, wake-up service, room service, and foreign exchange service provided at the front desk. The size of the gym and the amount of equipment available there was reduced as were the laundry facilities. Although the loss of these facilities is ongoing it is no longer a breach of the Act. I say this because s. 130(5) of the Act sets out a one year limitation period for the loss reduction of facilities. As it is more than one year since these reductions or discontinuances occurred it cannot be said the Landlord is in serious breach of the Act with respect to them. As for it being a serious breach of the tenancy agreement, please see the discussion below.
34. Third, as the redevelopment work has already begun there is significant construction and demolition activity; the complex is a construction zone. The entrance to the building has been changed and as a result, the Tenant has lost independent access to the building. The Tenant requires the construction security firm to permit him to access the complex and the laundry room. At times when security is not at their station he is required to wait until their return. It was the evidence before me that part of security’s duties required by the City involves a “fire walk” through the construction and garage areas where the life safety systems have been terminated. The Tenant has been provided with security’s cell phone number to contact them in the event they are not at their station when the Tenant arrives.
35. The Tenant also takes exception to the construction security firm keeping a log of his comings and goings. The log book kept by security is a requirement of the Ministry of Labour.
36. Forth, there were number of issues raised by the Tenant that were not ongoing at the time of the hearing and therefore not relevant to s. 83(3)(a). These include the auctioning of the contents of the hotel, a letter sent to the tenants by the Landlord in April 11, 2014, and correspondence from a previous tenant sent in 2013 identifying himself as a quasi-representative for the Landlord in which he attempted to get other tenants to accept a financial package offered by the Landlord to vacate their units. These events shall not be considered. (See: Puterbough v. Canada(Public Works and Government Services), [2007] O.J. No. 748 (Ont. Div. Ct.)).
37. There is really no dispute that living in a construction zone is stressful and difficult. Pursuant to s. 8(3)(b) of Ontario Regulation 516/06 it is not open to the Board to find that the construction work constitutes a breach of the covenant for quiet enjoyment read into every tenancy agreement unless the Tenant establishes the work could not be done in a more reasonable manner. That is not the case here.
38. More importantly perhaps, it seems to me that applying s. 83(3)(a) to the facts of this case would constitute an impermissible abuse of process. The Landlord wishes to develop its property which it has a right to do. The relevant City authorities have scrutinized the Landlord’s proposal and approved it; in doing so it required the Landlord to give to the Tenant benefits in terms of notice and compensation that he would otherwise not be entitled to. To do as the Tenant asks would be to make that approvals process a nullity. I do not believe that is the intent of the legislation.
39. Section 1 of the Act says one of the purposes of it is to balance the rights and responsibilities of residential landlords and tenants. Given the existence of the development regime managed by the City and the Landlord’s navigation of it, the fact that the approvals process took into account the Tenant’s interest and gave him rights he would not otherwise have, it would not be a fair balance of the rights of the Landlord and the Tenant to permit him to use s. 83(3)(a) to essentially stop the Landlord from redeveloping the property.
40. The Tenant requested that the Board use its discretion under 83(1) of the Act to delay the eviction in excess of 6 months. The Tenant has been residing in the unit for 40 years. He has strong ties to neighbourhood including medical support services. It was the evidence before me that the entire process has been stressful on the Tenant.
41. The Landlord submitted that the Tenant’s continued occupation of his rental unit requires special construction safety considerations including separation, lifesaving systems, asbestos removal considerations, and other factors that affect the construction. Working around the remaining sitting tenants has resulted in the Landlord having to incur additional costs in the amount of $250.000.00. In addition, the Tenant’s continued occupation of the rental unit is also delaying construction of the 78 replacement rental units. The Landlord also submitted that they have offered the Tenant a compensation package of $43,333.39 if he would vacate the unit and move into the replacement unit or in the alternative,$120,000.00 if he would waive his right of return to a replacement rental unit.
42. The Landlord was opposed to any relief from eviction citing that the City ordered that the Tenant receive twice the notice period required under the Act. The first N13 notice was served on the Tenant on September 27, 2013.
43. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to postpone the eviction until April 30, 2015 pursuant to subsection 83(1)(b) of the Act."
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(26) Okoye v. De Melo, 2021 ONSC 6201 (CanLII), <https://canlii.ca/t/jj909>
"[1] This is a statutory appeal from two decisions of the Landlord and Tenant Board. In the original Order dated June 20, 2018, Member Mitchell terminated the tenancy because the landlord required the unit for her family’s use. In the July 23, 2018 Review Order, Vice-Chair Sangmuah dismissed the tenants’ request for a review.
[2] The tenants appeal on the basis that the Member misapplied the legal test under s. 83(3)(c) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) in determining whether the eviction application should be refused. The tenants also argue that they were denied procedural fairness at the hearing. The appeal is dismissed for reasons set out below.
Factual Background and Decisions Below
[3] The tenants had occupied a rental unit since 2011. The landlord filed an application under s. 48(1) of the RTA on May 7, 2018 to terminate the tenancy because she required the unit for her own use. The landlord claimed that her sons required the unit because they needed to move to downtown Toronto for work. Section 48(1) provides:
48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,
…
(c) a child or parent of the landlord or the landlord’s spouse
[4] The matter came to the Landlord and Tenant Board (the “LTB”). The Member heard the evidence of the landlord, her husband, and their two sons who planned to occupy the unit, as well as the evidence of one of the two tenants. The Member found that the landlord, in good faith, intended to possess the rental unit for residential occupation by a child of the landlord in accordance with s. 48(1) of the RTA.
[5] The Member then turned to the issue of whether he must refuse the eviction under s. 83(3)(c) of the RTA because the reason for the landlord’s application was that the tenants had attempted to enforce their legal rights, in contravention of s. 83(3)(c) of the RTA:
83(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
…
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights…
[6] The Member recognized that if he determined that the reason for the landlord bringing this application was because the tenants had attempted to secure or enforce their legal rights under the RTA, he must dismiss the application.
[7] The tenants argued that they attempted to enforce their legal rights concerning three different breaches of the RTA by the landlord. The tenants filed two applications with the LTB on June 29, 2018. These applications concerned two illegal entries, an attempt to illegally increase rent, and various maintenance issues. The Member found on the facts that the reason for the landlord's application was not because of the tenants' request for rent receipts or demands with respect to repairs.
[8] The Member carefully considered the evidence of the illegal rent increase demands. He found it more likely than not that the landlord’s husband had indicated to the tenants that the landlord required a rental increase for the unit to be economically viable. However, he held that this fact does not of itself support a finding that the landlord's failure to extract a rental increase was the reason behind the present application. He found that the timing of the landlord’s application – seven months after the conversation about the rent increase – was consistent with the evidence about the timing of the landlord's recognition of the need for her children to occupy the unit.
[9] The Member considered the relevant RTA provisions. He distinguished Barnum v. Parker [2014] O.J. No. 1294 (Div. Ct.), where the court found that the only logical conclusion was that the landlord's application was brought because of the tenants' successful resistance to rental increases. He found that was not the case here.
[10] Accordingly, the Member granted the landlord’s application to terminate the tenancy. The tenants requested a review of the Order. In the July 23, 2018 Review Order, Vice-Chair Sangmuah refused the request.
COURT’S JURISDICTION:
[11] The Divisional Court has jurisdiction to hear an appeal of an order of the LTB under s. 210(1) of the RTA, but only on a question of law.
STANDARD OF REVIEW:
[12] An appeal from a decision of the LTB is restricted to questions of law. Since this is a statutory appeal on a question of law, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law.
[13] On questions of procedural fairness, the court must determine whether the appropriate level of procedural fairness was afforded.
ISSUES:
[14] The tenants raise two issues. First, did the Member err by failing to properly apply RTA s. 83(3)(c)? Second, did the Member deny the tenants procedural fairness by denying them a reasonable opportunity to present their case?
Issue #1: Did the Member err by failing to properly apply RTA s. 83(3)(c)?
[15] The tenants argue that the Member erred in law by misapplying s. 83(3)(c) when he found that the landlord’s application was not caused by the tenants’ attempts to secure or enforce their legal rights. They argue that had the Member properly considered their evidence about refusing to pay an illegal rent increase, demanding repairs, and contesting illegal entries by the landlord, the Member would have been required, under s. 83(3)(c) of the RTA, to refuse the landlord’s eviction application.
[16] The Member’s determination that the landlord’s eviction was not retaliatory for the purposes of s. 83(3)(c). It was based on his findings of fact and assessment of evidence. The tenants are essentially arguing about the weight assigned to the evidence. On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the law or legal standard relevant to the facts found by the decision-maker. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29.
[17] Here, the Member considered all the evidence and made findings of fact available to him. The Member directed himself to the proper question: was the reason for the landlord’s eviction application that the tenants had attempted to secure or enforce their legal rights? The wording of the RTA is that the tenant’s attempt to secure or enforce legal rights must be “the” reason for eviction, not “a” reason for eviction. In other words, retaliation must be the “sole or primary” reason for eviction. This approach is consistent with both judicial and Board jurisprudence. On the facts as found by the Member, he concluded that the attempts by the tenants to secure or enforce their rights was not the reason for the application. The legal test was correctly identified and applied to the facts found by the Member. There was no error of law in the Member’s decision.
Issue #2: Did the Member deny the tenants procedural fairness by denying them a reasonable opportunity to present their case related to s. 83(3)(c)?
[18] The tenants argue that they could not properly present their case under s. 83(3)(c) because the Member determined that the test for relief from eviction under s. 83(3)(c) was not distinct from the test for good faith under s. 48(1), and that any attempts by the tenants to exercise their rights would go to the question of good faith under s. 48(1), rather than forming a distinct inquiry under s. 83(3)(c). They further assert that because of this misunderstanding, the Member prevented the tenants from advancing any evidence or argument on the issues relating to s. 83(3)(c).
[19] It is clear from a review of the transcripts that the Member may have initially conflated the two issues. However, after hearing initial submissions by the tenants, and after adjourning the matter, the Member on his return clearly recognized the argument that the application was a retaliation for the tenant's complaints, and the Member stated that he was bound by s. 83(3)(c). The tenants were allowed to provide evidence and cross-examine on all issues relating to their claim of retaliation. The tenants made closing submissions about s. 83(3)(c) and their attempts to assert their legal rights as the basis for the retaliation. The tenants had an adequate opportunity to present their case, and there was no breach of procedural fairness.
Costs
[20] The appeal is dismissed. The appellants are to pay the respondents costs of $5,000.00, inclusive, within thirty days."
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Eviction for Personal Use, Demolition, Repairs and Conversion
"LTB Order and Relief from Eviction
After holding a hearing, the LTB may issue an eviction order if the landlord has proven their case. The eviction enforcement date cannot be before the termination date on the N12 or N13 notice.
Even where the LTB finds that the landlord or purchaser requires the unit in good faith or intends to carry out the activity described in the notice, under section 83 of the RTA the LTB must consider, having regard to all the circumstances, whether to refuse to grant the application or to postpone the eviction. In some cases, refusing or delaying the eviction is discretionary. See for example: TSL-60770-15 (Re), 2015 CanLII 69062 (ON LTB); NOL-15753-14-RV (Re), 2014 CanLII 57596 (ON LTB); TSL-71705-16 (Re), 2016 CanLII 71624 (ON LTB); TSL-70781-16 (Re), 2016 CanLII 39812 (ON LTB); TSL-12596 (Re), 2009 CanLII 51178 (ON LTB). In other cases, refusing the eviction is mandatory. See for example: SOL-53030-14 (Re), 2015 CanLII 16020 (ON LTB); TSL-51257-14-RV (Re), 2015 CanLII 22344 (ON LTB).
If the landlord does not provide the tenant with the required compensation, as discussed above, the LTB must refuse the eviction. If the landlord pays the tenant the required compensation and the LTB dismisses the landlord's application, the tenant may be ordered to re-pay the landlord.
See also Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), and Guideline 7: Relief from Eviction: Refusing or Delaying an Eviction."
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Relief from Eviction - Refusing or Delaying an Eviction
"Discretionary Refusal of an Eviction
If a hearing is held, the Board must review and consider all the circumstances to determine whether or not to exercise its discretion to refuse an eviction. For example:
- in a case involving an allegation of tenant "fault" (such as eviction for arrears or illegal act), consider whether the reason is serious enough to justify eviction,
- in a case involving a landlord's allegation of interference with reasonable enjoyment, consider whether refusing to evict the tenant would result applications against the landlord by other tenants for interference with their reasonable enjoyment, or
- consider whether refusing to evict the tenant would result in an unreasonable financial hardship to the landlord.
In "having regard to all the circumstances" the Member shall consider the relevant circumstances of the tenant and landlord and the impact on other occupants in the residential complex in delaying or denying eviction. Therefore, if the tenant's request presents a possible reason for refusal, the landlord may then explain why the refusal to evict would be unfair to them or to other occupants in the residential complex.
Where the Board exercises its discretion to refuse to evict a tenant, the Board may attach conditions to such an order that one or both parties must follow.
Circumstances Justifying Discretionary Refusal
The tenant's conduct has been an important consideration in many past decisions. For example:
- If the tenant got far behind in their rent payments, but has recently made extra payments to catch up, and owes relatively little now, the discretion may be exercised in their favour.
- In a case of persistent late payment of rent, the tenant had financial problems when he became unemployed, but for months since he found another job, payment has been right on time. The eviction may be refused despite the earlier months of late payments, due to the tenant's good conduct. In such circumstances, the Member may order that on-time rent payments are to be made, by the tenant to the landlord, for a specified number of months following the hearing.
- A tenant is not excused from paying rent even if the landlord has greater financial resources (e.g., a public agency or large corporate landlord). Other relevant factors may include whether the current reason for eviction has been repeated, the impact this tenant is having on the landlord or other tenants, whether the tenant has taken positive steps to reduce or eliminate the reason for the eviction, and other indications of good faith on the part of either the landlord or the tenant.
Landlord actions or conduct which led to the eviction should also be considered. For example, if the landlord unreasonably prevented a tenant from repairing damage done by a guest or child, this would be relevant. If the landlord has excused many other tenants from a minor breach, an arbitrary eviction of one tenant for the same breach may be refused, depending on all of the other circumstances.
Discretionary Delay of an Eviction
The Board must review and consider the circumstances to determine whether or not to exercise its discretion to delay an eviction.
Although the time period is not set out in the RTA, Board orders commonly provide that a tenant has 11 days after an order for arrears of rent and termination of the tenancy is issued to pay all of the rent arrears and costs owing to the landlord. If the tenant does not make the necessary payment, the tenant can be evicted for failure to pay rent starting on the 12th day after the order is issued. This period of time takes into account such matters as the time it takes for the tenant to receive the order in the mail and acquire the rent money to pay to the landlord. Therefore, a decision of the Board to postpone the enforcement of an eviction order under clause 83(1) (b) of the RTA often means the order would provide that the order could not be filed with the Court Enforcement Office until more than 12 days after the date the order is issued.
Generally, the Member would take into account the time that it will normally take the landlord to enforce the order through the Court Enforcement Office.
Even if "all of the circumstances" did not justify refusal of the eviction, the Member may look at the same issues of unfairness to each party, and decide whether or not to delay the eviction. Eviction may appear to be unfair if no other accommodation is available to the tenant (e.g., a social housing tenant). However, a case in which the landlord is in a better financial position than the tenant does not justify refusal of the eviction. Ordinarily, the tenant's lack of resources will be considered as a reason to delay an eviction, not to refuse it. However, all circumstances must be considered.
The following are some examples that illustrate situations in which a delay may be considered:
- The tenant asserts that the market conditions in the locality are unusually "tight" and that it will take some time to find suitable accommodation.
- The tenant shows that they are affected by a severe medical condition which makes it difficult to find other accommodation, and there are no persons who can help him or her search for a vacant unit.
- The tenant's family is very large and they require at least five bedroom accommodation, similar to their current unit. There are very few such units in the local market, and none are in the current advertisements.
Rent Arrears that Arose During COVID-19
On July 21, 2020, the following provision was added to the RTA:
83(6) Without restricting the generality of subsections (1) and (2), if a hearing is held in respect of an application under section 69 for an order evicting a tenant based on arrears of rent arising in whole or in part during the period beginning on March 17, 2020 and ending on the prescribed date, in determining whether to exercise its powers under subsection (1) the Board shall consider whether the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant's arrears.
What this means is that when deciding whether to grant discretionary relief from eviction for an application about rent arrears on or after March 17, 2020, the Board must consider whether the landlord tried to reach a payment agreement with the tenant before the hearing. Therefore, at the hearing the parties or their representatives must be prepared to discuss whether the landlord and the tenant tried to reach an agreement. If the parties tried to reach an agreement but were not successful, the details of the negotiations should not be discussed during the hearing.
Subsection 83(6) applies to rent arrears that arose, at least in part, starting on March 17, 2020, and ending on a date to be proclaimed by the Lieutenant Governor. As of September 2020, the ending date had not been proclaimed.
Mandatory Refusal of Eviction
Mandatory refusal applies to situations which the RTA provides are serious enough to justify refusal - regardless of any other circumstances. If a tenant raises circumstances which might fall into subsections 83(3), 83(4) or 83(5), the Member must decide whether it applies.1 Further, if it is found that any of those subsections apply, the Member must refuse the eviction.2
Serious Breach of Landlord Obligations
The Board must refuse an eviction if the landlord is in serious breach of the landlord's responsibilities under the RTA or the tenancy agreement.
Many claims are related to the landlord's maintenance obligations. A health or safety concern due to lack of repair may be serious enough to justify refusal. Conditions which deprive the tenant of the full use of the premises will usually be serious, particularly if it affects the kitchen, bathroom or sleeping areas. Members must decide whether other repair problems constitute a "serious breach" of obligations, considering the landlord's actions to resolve the problems as well. Other factors such as how long the breach was ongoing or the level of risk to the tenants may also be relevant.3
In cases related to the obligation to repair, the tenant's conduct may also be relevant. For example, if the tenant has never before complained to the landlord about a long-standing repair problem, they may have shown they did not consider it to be serious. Further, if the landlord was not aware or could not reasonably have been expected to be aware of the problem, the Member may find that the landlord is not in serious breach. Further, the tenant should not have contributed to the problem, such as by obstructing the landlord's repair efforts.
In cases related to the obligation to repair, the age of the property and the landlord's intentions for the property may be factors for the Member to consider. For example, if the landlord is intending to demolish the property and the tenant was served a notice to terminate for that reason, the Member would consider these factors before deciding to refuse to evict.4
The tenant may raise a breach of another obligation of the landlord under the RTA. For example, the RTA imposes on landlords the obligation not to illegally enter a unit, nor to harass a tenant. The Member must decide the issue and, if satisfied that the facts presented show a serious breach, they must refuse the eviction. However, mandatory refusal of eviction is generally accepted to refer to serious breaches existing at the time of the hearing, not breaches from the past that have been remedied.5
If the tenant raises a breach of the tenancy agreement, they must present facts to show that it is a serious breach and that it relates to a significant provision of the agreement.
Even if the breach is not found to be serious and there would be no mandatory refusal, the lack of repair or other breach of obligation may still be considered. It would be one of the circumstances of unfairness to consider in deciding whether discretionary refusal is appropriate.
Retaliatory Actions by the Landlord
The Member must refuse the eviction if the reason the landlord applied for eviction is described in clause (b) to (e) of subsection 83(3) (these clauses are quoted on page 1). The tenant would explain what actions they took which they believe caused the landlord to seek the eviction. However, the tenant has a higher onus. They must prove that the reason for the application is one of the above motivations6. It is difficult to prove another person's state of mind. The landlord will assert that the reason stated in the application was the reason for the application.
The tenant may try to show from the landlord's conduct that the motivation was retaliatory. For example, the tenant may be able to show that the landlord has evicted other tenants who asserted their rights. The tenant might also show that the landlord ignored the same issue that is the basis for this eviction, for other tenants. A pattern of conduct may be considered by the Board, but it may also be explained by the landlord.
Even if the tenant does not establish to the Member's satisfaction that the reason for the application was retaliation and, thus refusal is not mandatory, the facts that supported the tenant's claim could be one of the circumstances considered in deciding whether there should be discretionary refusal of the eviction.
Applications Under Section 77
Under subsection 77(4) of the RTA, the Board may make an order terminating the tenancy and evicting the tenant without notice to the tenant and without a hearing (ex-parte), if the landlord has filed an application with the Board under subsection 77(1), based on either an agreement between the landlord and the tenant to terminate the tenancy or a notice of termination given by the tenant.
Decisions Made Ex Parte
An application (L3) filed by a landlord pursuant to subsection 77 (1) of the Act is generally resolved by an ex parte order issued pursuant to subsection 77 (4).
The tenant may file a motion pursuant to subsection 77(6) to set aside the ex parte order. The Board then holds a hearing to consider the tenant's motion. As a hearing concerning such a motion does not arise upon an application for an order to evict a tenant, subsection 83(1) does not apply. Instead, the Board exercises similar discretionary relief under subsection 77(8), which provides:
If the respondent makes a motion under subsection (6), the Board shall, after a hearing,
- make an order setting aside the order under subsection (4), if
- the landlord and tenant did not enter into an agreement to terminate the tenancy, and
- the tenant did not give the landlord notice of termination of the tenancy;
- make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or
- make an order lifting the stay of the order under subsection (4), effective immediately or on a future date specified in the order.
When having regard to all the circumstances, pursuant to clause 77 (8) (b) the Board should consider circumstances that occurred with regard to the signing of the agreement to terminate the tenancy and thereafter or circumstances that occurred after the giving of the notice of termination by the tenant to the landlord.
Decisions Made When a Hearing is Held
In those cases where an application filed under subsection 77(1) is sent to hearing and therefore is not decided ex parte, subsection 83(2) provides that the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
With respect to the exercise of discretion under section 83, Members hearing a subsection 77(1) application will consider the circumstances that occurred with regard to the signing of the agreement to terminate and thereafter or circumstances that occurred after the giving the notice of termination.
Applications Under Section 78
Under subsections 78(6) & (7) of the RTA, the Board may issue an order evicting the tenant and ordering the tenant to pay arrears of rent without a hearing (ex-parte), if the landlord has filed an application with the Board under subsection 78(1).
Decisions Made Ex Parte
An application (L4) filed by a landlord pursuant to subsection 78 (1) of the Act is generally resolved by an ex parte order issued pursuant to subsections 78(6) & (7).
The tenant may file a motion pursuant to subsection 78(9), to set aside an ex parte order issued under subsections 78(6) & (7). The Board then holds a hearing to consider the tenant's motion. As a hearing concerning such a motion does not arise upon an application for an order to evict a tenant, subsection 83 (1) does not apply. Instead, the Board exercises similar discretionary relief under clauses 78(11) (b) & (c).
Pursuant to clause 78(11)(b) the Board may make an order setting aside the ex parte order issued if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order.
This provision gives the Members discretion to grant relief to the tenant by setting aside the ex parte order, notwithstanding the fact that the tenant has breached a condition required in the conditional order or mediated agreement.
In their consideration of this provision, Members should take into account:
- Circumstances that occurred after the date of the mediated agreement or conditional order that caused the party to be unable to meet the terms of the agreement or order. (Circumstances that occurred prior to the issuance of the conditional order or the signing of the mediated agreement should have been considered at the time the conditional order was made or the mediated agreement was signed, with respect to the previous application.)
- The circumstances of both the landlord and tenant and the impact on other occupants in the residential complex in delaying or denying eviction.
It is also important to remember that setting aside the ex parte order results in the original mediated agreement or conditional order remaining in full force and effect. In some cases, it may be impossible for the tenant to fulfill the remaining conditions contained in the mediated agreement or conditional order (i.e. the deadline for payments has now passed), and/or the parties wish to consent to new conditions.
The matter may be resolved in one of the following ways:
- The parties can consent to be bound by a new mediated agreement containing new terms or conditions, and in addition agree that the ex parte order would be set aside by order of the Member which order would also acknowledge that the L4 application had been resolved through a mediated agreement.
- The parties can consent to be bound by a new hearing order to be issued by the Member containing new terms or conditions.
- The Member may, in an order, revise the terms of a Board mediated settlement or an order made with respect to the previous application if the Member considers it appropriate to do so, (e.g. a revised payment schedule). In exercising this authority, the Member may, subject to the consideration of fairness, wish to consider ordering new conditions that are as close as possible to the original conditions imposed in the original order or mediated agreement.
If the tenant's motion to set aside the ex parte order is denied and clause 78(11)(b) has not been applied, the Board may make an order lifting the stay of the ex-parte order effective immediately or on a future date. Clause 78 (11)(c) directs the Member to lift the stay of the ex parte order, thus permitting the landlord to enforce the ex parte order. The discretion given to Members to lift the stay on a future date is similar to the relief from eviction provided by clause 83(1)(b) which gives the Member authority to postpone the enforcement of the eviction for a period of time.
In considering such relief, the Member should take into account the same criteria as set out for clause 78 (11)(b).
Decisions Made When a Hearing is Held
In those cases where an application filed under subsection 78(1) is sent to hearing for clarification, therefore is not decided ex parte, subsection 83(2) provides that the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
With respect to the exercise of discretion under section 83, Members hearing a subsection 78(1) application will consider the circumstances that occurred with regard to the signing of the mediated agreement and thereafter or circumstances that occurred after the date of the hearing which resulted in the conditional order.
1 See Forgie v. Widdicombe Place [2002] O.J. No. 2956 (Div. Ct.)
2 See Chin v. Hunt (1986), 17 O.A.C. 267 (Divisional Court)
3 Sage v. Corporation of the County of Wellington (April 25, 2005), London Docket No. 1471 (Div. Ct.)
4 Puterbough v. Canada Public Works and Government Services (unreported decision of Divisional Court, February 12, 2007)
5 Supra, fn. 4
6 MacNeil et al. v. 976445 Ontario Ltd. (June 6, 2005), London Docket No. 04-1465 (Div. Ct.)"
What if a landlord asks you to vacate for a sale? (At risk of N12)
Can an N12 be issued for storage purposes?
Can a landlord sue their tenant for failure to vacate base on an N12?
If an N12 fails, can a new one be issued? (res judicata cases)
Is there recourse for bad faith eviction for tenants who vacated without a proper N12?
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Thank you for posting this, I will be using most of them in my upcoming N12 hearing! I truly appreciate you putting this together.
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