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RTA - Abandonment. Sepasi v. Foster
In Sepasi v. Foster (Div Ct, 2026) the Divisional Court considered a landlord's RTA s.210 appeal, this where the LTB "ordered a rent abatement of $3,939.54 and imposed a $20,000.00 administrative penalty", these related to illegal entries.
The court considers RTA s.37(1) ['Termination only in accordance with Act'], s.79 ['Abandonment of rental unit'] and s.39 ['Restriction on recovery of possession'] - here all in an 'abandonment' context:(b) Sections 37(1) and 79
[33] The appellant’s submissions respecting ss. 37(1) and 79 merit further analysis. Section 37(1) provides:37(1) A tenancy may be terminated only in accordance with this Act. Section 79 provides:79. If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy. Although not raised by the appellant, s. 39 is also relevant to the analysis:39. A landlord shall not recover possession of a rental unit subject to a tenancy unless,
(a) the tenant has vacated or abandoned the unit; or
(b) an order of the Board evicting the tenant has authorized the possession. [34] In his reasons, the Member noted that although the appellant had testified that he believed the appellant had abandoned the unit, he never applied for an order pursuant to s. 79. The appellant submits that the Member misinterpreted s. 79 as being mandatory, rather than permissive. In the appellant’s submission, although a landlord may apply for an order pursuant to s. 79, there is no requirement to do so. As a result, the Member wrongly “penalized” him for failing to obtain an order pursuant to s. 79.
[35] On the appellant’s interpretation, a tenancy could be terminated by the landlord deciding that the tenant has abandoned the unit and taking possession of it without any involvement by the Board. However, s. 37(1) clearly states that a tenancy can only be terminated in accordance with the Act, and there is nothing in the Act stating that a landlord can unilaterally terminate a tenancy by deciding that the unit had been abandoned. As noted by this court in George V. Apartments Ltd. v. Cobb, [2002] O.J. No. 5918 (Div. Ct.), at para. 19:What must be remembered is that abandonment neither serves as notice by the tenant to terminate nor as termination. The lease continues in effect until some action is taken by the landlord under the Act to achieve termination. [36] Section 39(a) provides that a landlord can recover possession of an abandoned unit, but it says nothing about whether the tenancy has been terminated. In my view, s. 39 has to be read together with s. 79, which also deals with the issue of abandonment as well as with the issue of termination of a tenancy. It is clear that when the two provisions are read in the context of the entire statute, a termination of a tenancy on the basis of abandonment can only occur if the Board had made an order pursuant to s. 79. Absent such an order, a landlord who takes possession pursuant to s. 39(a) does so “at some risk”: George V. Apartments, at para. 20.
[37] The word “may” in s. 79 signifies only that a landlord is not obliged to seek an order pursuant to s. 79. Once a landlord obtains such an order, he or she no longer has a claim to any arrears as the tenancy has been terminated. A landlord may conclude that the better course is to wait to determine if the unit has been truly abandoned. . Ieraci v Parsons
In Ieraci v Parsons (Div Court, 2024) the Divisional Court dismissed a landlord's motion to extend time to commence an RTA s.210 appeal of an LTB "finding that ... [the LL] illegally evicted Ms. Parsons".
The history of the dispute was that of a flooded basement apartment that the tenant 'left' due to it's uninhabitable condition and the LL treated as abandoned, a legal conclusion that the LTB disagreed with. The LTB continued to make a remarkable de facto reinstatement order [at para 14]:[6] The board did not accept the landlord’s evidence or submission that Ms. Parsons abandoned the tenancy. The board did not accept that the flood itself was an unforeseeable event that frustrated the lease. There was insurance in place for just such an eventuality. Repairs would normally be expected in short order.
[7] Rather, the board found that it was the gutting of the unit by the landlord and his failure to repair that led to the illegal exclusion of Ms. Parsons. Mr. Ieraci did not bring an application to terminate the tenancy for renovations using the board’s “N13” [SS: 'Form N13 - Notice to End your Tenancy Because the Landlord Wants to Demolish the Rental Unit, Repair it or Convert it to Another Use'] process that exists for landlords who wish to do so. Mr. Ieraci says he did not bring either an N13 application or an N4 for arrears of rent because, in his view, the tenant abandoned.
[8] The board made the following findings of fact about the landlord’s renovation of the premises:12. The Tenant submits that she had agreed with the Landlord, that she would still live at the unit while these repairs were being performed. At no point did the Landlord object to this arrangement, prior to unilaterally emptying her unit, and gutting it, making it impossible for her to continue to stay there.
13. On cross-examination, the Tenant confirmed that she did not rent a hotel room for the period she was locked out, rather, she stayed at a friend’s place because she did not have the money to do so.
14. The Tenant clarified that on July 5, 2021, the rental unit still had its walls, kitchen, bathroom and the Landlord removed the door as well as these structures afterwards. Photographs were submitted into evidence showing the structures present on July 5, 2021 and the unit gutted three days later.
...
30 ... in this case, as of the hearing date in February 2023, the Landlord’s evidence was, he was still under the process of renovating since July 2021, since it was financially difficult for him to do so, all at once. I find that the delay in the repair work has more to do with the Landlord’s choice of performing it himself, than the actual nature of the repair work that is required to be completed. [9] The landlord’s evidence to the board, repeated to me in his submissions, is that after the flood Ms. Parsons said she could no longer live in the unit. It was just common sense that she was abandoning. But that is not abandonment. The unit was under two inches of water and needed repair. The landlord offered to put Ms. Parson’s goods in storage and he offered her other units while hers was under repair. It was only after she left that the landlord gutted the unit.
[10] The parties were not able to agree on terms for the alternative units offered by the landlord. The tenant kept a dog and two cats in her apartment apparently despite a “no pets” clause in her lease. She was not willing to accept an alternative unit with no pets allowed. Neither was she willing to share a unit with a male stranger as offered.
[11] Mr. Ieraci says that he also insisted that the tenant bring her arrears of rent up to date to take on a new unit as well.
[12] The board ultimately held:33. In the absence of an order issued by the Board terminating the tenancy and evicting the Tenant or evidence that she either abandoned or vacated the rental unit, I find that the Landlord was in breach of section 24 of the Act on July 5, 2021 when they unlawfully evicted the Tenant ... [13] The landlord says that the tenant pretended to live in a hotel and asked him to pay for it when, in fact, she was living with a friend. The board recited this evidence. But, even if she was untruthful as to her expenses, the tenant’s ongoing request for the landlord to find her accommodation at his cost is inconsistent with the theory that she abandoned the lease. She continued to rely on the landlord having obligations to her.
[14] On finding that Mr. Ieraci had illegally evicted Ms. Parsons, the board held that it was only fair that he gives back what he took away. It ordered:1. The Landlord shall forthwith complete the repairs to the rental unit.
2. The Landlord shall return vacant possession to the Tenant as soon as the unit is habitable and continue the tenancy at the same monthly rent charged had the tenancy not been interrupted.
3. On or before January 3, 2024, and until the repairs to the rental unit are completed, the Landlord shall ensure that the Tenant is provided with a hotel room or another rental unit that is pet-friendly at no expense to the Tenant.
4. If the Landlord fails to comply with paragraph 2 of this order, the Tenant may file this order with the Court Enforcement Office (Sheriff) so that the order directing the Landlord to return possession to the Tenant may be enforced. The Tenant is entitled to deduct from the rent any fee charged by the Court Enforcement Office (Sheriff) for this service.
5. Upon receipt of this order the Court Enforcement Office (Sheriff) is directed to give possession of the rental unit to the Tenant on an expedited basis.
6. If the Landlord fails to comply with paragraph 3 of this order, the Board may consider levying a $1,000.00 fine per day, up to $35,000.00 maximum (LTB jurisdiction), or until the Landlord complies.
7. The hearing of the balance of the Tenant’s T2 application is adjourned to a date to be scheduled by the LTB. This application shall be scheduled with the Tenant’s T6 application LTB-T-036939-22.
8. Should the Tenant wish to amend their applications, they must do so on or before January 31, 2024 and ensure a copy of the amended application is served to the Landlord and the Board in compliance with Rule 15 of the LTB’s Rules of Procedure.
9. As soon as possible and no later than TEN days prior to the hearing, the Tenant and the Landlord shall give to the other and file with the Board a copy of any undisclosed document, photograph, receipt, recording or like thing upon which they intend to rely at the hearing. Filing with the Board may be done by uploading onto the Board’s TOP portal or by e-mail to LTB.evidence@ontario.ca.
10. Pursuant to Rule 19.7 of the Board’s Rules, a party who does not comply with an order for disclosure may not be permitted to rely on any evidence not properly disclosed. The Timing of Events
(a) The Next Hearing
[15] It is apparent that the application is not yet completed before the board. A further hearing is required to consider monetary compensation issues. The board determined that this hearing should be held with the tenant’s other applications seeking relief against the landlord.
[16] Counsel for the board advises that the hearing is now scheduled for April 30, 2024.
[17] Counsel for the Ms. Parsons and for the board accept that the order finding that the landlord had unlawfully evicted the tenant, based on a finding that the tenant had not abandoned the premises, was a final order that is appealable to this court despite the hearing before the board continuing on other issues.
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