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RTA - Appeals - Questions of Law [s.210] (2). 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.
Here the court considers the RTA s.210 appeal ground restriction to 'questions of law':A. Jurisdiction and Standard of Review
[18] This appeal is brought pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), which provides a right of appeal “but only on questions of law.” Examples of questions of law are whether the correct legal test was applied, the legal effect of undisputed facts, whether a statute was correctly interpreted, whether evidence was improperly admitted or excluded, and questions of procedural fairness: R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 294; R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at para. 68; Dixie X-Ray Associates Ltd. v. Ontario (Ministry of Health), 2025 ONSC 75 (Div. Ct.), at para. 3; Francis v. Ontario (Criminal Injuries Compensation Board), [2009] O.J. No. 187 (Div. Ct.), at para. 2.
[19] This court does not have jurisdiction to consider questions of fact or questions of mixed fact and law on an appeal pursuant to s. 210(1): Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658 (Div. Ct.), at para. 12. Questions of fact are questions about what took place. They include credibility findings and determinations as to how much weight evidence is given. Questions of mixed fact and law are about whether the facts satisfy the legal test: Canada (Direction of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35. . Bailey v. Capreit Limited Partnership
In Bailey v. Capreit Limited Partnership (Div Court, 2022) the Divisional Court heard a simple LTB appeal of a public housing tenant which the landlord did not oppose, and the court granted as a new LTB hearing. The appellant-tenant wanted the matter resolved to 'clear his name' but the court said that, as RTA s.210 only allowed appeals on 'questions of law', it could only order a new LTB hearing:[8] Justice Lederer explained to Mr. Bailey that the Divisional Court can only hear appeals from the Landlord and Tenant Board that deal with questions of law: Residential Tenancies Act, 2006, S.O. 2006, c.17, s. 210. Justice Lederer explained that the Court cannot reconsider factual findings made by the Board or substitute its decision for the Board on factual matters. Justice Lederer explained that all the Court can do is decide whether a legal error was made at the hearing before the Board. If an error was made by the Board, all this Court can do is order that the Board conduct a new hearing. Justice Lederer explained to Mr. Bailey that he can put the evidence he has before the Board at his new hearing and can make arguments at the new hearing about the authenticity and veracity of the landlord’s evidence. RTA appeal remedies turn on RTA 210(4-5) [and conceivably CJA 134 which is not considered here], which reads:RTA s.210(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Board with the opinion of the Divisional Court.
(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper. My concern is that the court has conflated the grounds of appeal - which they seemed to disregard analysis of, treating the landlord's position as a essentially a consent to allow the appeal, and the remedies - which, if you're going to consent to the appeal - should sensibly allow for a full rescission of the LTB order below, not just a re-hearing order. The court makes no mention of RTA 210(4) or (5) - and 210(5) seems tailor-made for the situation.
Am I missing something? Was the court acceding to the appellant's insistent of 'clearing his name' to the extent of him risking the outcome of a new LTB hearing? If so, did the self-repper appellant realize this risk?
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