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RTA - Eviction Relief [s.83]. Shearer v. Oz
In Shearer v. Oz (Div Court, 2024) the Divisional Court dismissed an appeal in an extended RTA struggle that continued years after the tenant had "moved out of the house about eighteen months later [SS: after the tenants taking possession], on July 26, 2019".
Here the court considers the mandatory 'eviction relief' provisions of RTA s.83(3) ['Power of Board, eviction - Circumstances where refusal required']:(b) Subsection 83(3) of the RTA
[33] The Tenants argue that, because the Landlords were not in compliance with the RTA, the Board was not entitled to order a termination of the tenancy and eviction.
[34] Subsection 83(3) of the RTA provides:... the Board shall refuse to grant the [eviction] 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;
(b) 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;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding. [35] The Tenants argue that the Board awarded the largest reported abatement amount in history, and that, by any measure, the Landlords seriously breached their responsibilities under the Act and the lease. The Tenants argue that the Board failed to address this argument and that it is simply obvious that it applies in the circumstances of this case.
[36] The Tenants are misreading s. 83(3). It applies to a “serious breach” that exists at the time of the Board’s order. That is the way the provision has been interpreted and applied by the Board in past cases, and that is how the Board addressed the issue in this case. The Board was satisfied that there were no continuing “serious breaches” (within the meaning of this provision).
[37] I appreciate that the Board made a large abatement order in this case. One reason it is so large is that these matters dragged on so long before the Board – the rent arrears, likewise, are very high. It is clear that the Board considered all of the issues raised by the Tenants to be minor matters, at best, aside from the heating issue. The parties contested, vigorously, the extent of any shortcomings in the house related to heating. The Board found that the premises were not uninhabitable. It ordered a partial rent abatement for failure to address insulation issues, and made an order for repairs, which it was satisfied was an appropriate way to deal with the issue. The Board was clear that it did not regard the heating problem as justification for the Tenants withholding their rent.
[38] The Board’s apparent conclusion – that the Landlord’s breaches were not “serious” within the meaning of s.83(1) of the Act, is a finding of fact, or a finding of mixed fact and law with no extricable question of law. The conclusion is reasonable on the evidence. I see no basis on which this court may intervene. . Salih v. Lacroix
In Salih v. Lacroix (Div Court, 2023) the Divisional Court dismissed an RTA s.83(1) ['relief from forfeiture'] appeal argument, here where the LTB applied it in favour of the tenants (which is rare):[7] Essentially, the Landlord argues that the Board erred in law in its application of the test under s.83(1) of the Act, as it failed to address an essential element of the test under that section – namely unfairness to the Landlord if the eviction is not granted. The Landlord also submits that s.83(1) imposes a positive obligation on the Board to inquire into the circumstances of the landlord, an obligation the Board failed to fulfill in this case. According to the Landlord, the focus of s.83(1) is meant to be on the circumstances of the Landlord and any unfairness that the Board’s orders may cause to the Landlord.
[8] As the Tenants correctly point out, courts have long recognized that the Act is remedial legislation with a tenant protection purpose. As such it must be given “a fair, large, and liberal construction” to ensure the attainment of its objects (Honsberger v. Grand Lake Forest Resources Ltd. 2019 ONCA 44, at para. 19). Most recently, in Smith v. Youth Link Youth Services 2022 ONCA 313, at para. 25, the Court of Appeal confirmed that the Act is “remedial legislation designed to address the imbalance of power between landlords and tenants”.
[9] One of the places where the Act’s tenant protection focus is enhanced is in s.83, which prohibits the Board from granting an eviction application, even where circumstances for terminating a tenancy are proven, unless it has considered all of the circumstances.
[10] The Landlord is correct that these circumstances include both the circumstances of the Tenant and the circumstances of the Landlord. The Landlord is incorrect when he maintains that this was not done in this case, or more particularly when he asserts that the Board failed to consider the circumstances of the Landlord. A review of the transcript makes it clear that the Board inquired about and received evidence from the Landlord as to why he chose to evict the Tenants. After hearing this evidence, the Board member stated explicitly that he was going to take all of that evidence into consideration when making his decision.
[11] The Board’s decision makes it clear that this was done. Paragraph 4 of that decision highlights those circumstances. The Board then considered the Tenants’ circumstances and found, in effect, that it would be more unfair to grant the eviction than to refuse the eviction. While the Board may not have expressed itself in precisely these terms, our task is not to demand formulaic precision or perfection from an administrative decision maker’s reasons, but to ensure that those reasons, reviewed in light of the record as a whole, demonstrate that the Board did what it was required to do under its governing legislation. In this case, we are satisfied that the Board met this threshold. . Chan v. Tralen Investments Ltd.
In Chan v. Tralen Investments Ltd. (Div Court, 2023) the Divisional Court denied a RTA s.210 appeal, partially on the grounds that a RTA s.83 ['relief from forfeiture'] decision did not only raise a 'question of law':Did the Board Err in Declining to Order Discretionary Relief?
[17] The Appellants take the position that the Board erred in concluding that discretionary relief under s. 83(1) of the RTA was not warranted. The Appellants submit that the Board should have refused to order eviction or postponed it for at least seven months. The Appellants submit that the Board failed to consider all the relevant circumstances, including the highly prejudicial effects of an eviction order on the Appellants, in particular because of Ms. Chan’s mental health concerns and the Appellants’ financial circumstances.
[18] Again, the issue raised by the Appellants is not a question of law. The Appellants take issue with the Board’s findings on the evidence and her exercise of discretion. It is clear from the Decision that the Board took into consideration the fact that the Appellants had lived in the unit for over 20 years and that finding affordable housing would present a significant challenge, especially given one of the Appellants’ mental health concerns. However, the Board also recognized that the Appellants had the benefit of a two-year delay in having the matter heard on the merits and that the Respondent had experienced an extended inconvenience. . Faruk v. The Landlord and Tenant Board
In Faruk v. The Landlord and Tenant Board (Div Court, 2023) the Divisional Court considered a judicial review (not a RTA s.210 appeal, which would be more usual), grounded in administrative fairness and abuse of process, of interrupted RTA proceedings where the LTB member had resigned before the hearing was completed and the LTB ordered a de novo hearing. The substantive issues were COVID-era arrears of rent and s.83 relief form eviction.
In these quotes the court extensively addresses the tenants' s.83(3)(d) ['reason for application 'being brought' is membership in a tenant's association'] argument, and further whether that issue was still relevant after the application was commenced:3. Did the landlord initiate these proceedings because the tenants were members of a tenants’ association?
[17] These events took place in the context of the covid-19 pandemic. The Landlord and Tenant Board took account of the circumstances. Shortly after the pandemic began, on April 1, 2020, the landlord received a letter from three of its tenants demanding that it charge no rent during the pandemic and warning that any attempted evictions would result in “a collective appropriate response from our community”[19]. The letter “clearly implied that the authors intended to organize an association for the purpose of collectively refusing to pay rent opposing eviction for non-payment of rent[20]. At about that time the landlord filed an unusually large number of notices seeking to terminate tenancies because of arrears in rent. The 17 applications that were the subject of these proceedings were served between May and July 2020.
[18] The tenants saw a connection. They argued that the large number of applications should be found to be in retaliation against the formation of the Crescent Town Tenants’ Union. The Landlord and Tenant Board did not accept this submission. The applications made were consistent with the landlord’s long-standing practice of a written reminder that rent was overdue delivered around the 7th day of the month, service of notices to end the tenancy (N4 notices) on the 14th of the month and filing for eviction two weeks later, if the rent had not been paid.[21] There was a simpler explanation for the larger number of applications. As a result of the pandemic a number of the tenants had seen their incomes reduced and were unable to pay their rent. The tenants produced expert evidence suggesting that the community had suffered a disproportionate loss of income from the pandemic.[22]
[19] The tenants went so far as to suggest that the landlord’s motives were demonstrated by its having retained a particular law firm. The Landlord and Tenant Board was unprepared to draw that inference. Afterall, parties have a right to the counsel of their choice.[23]
[20] The Landlord and Tenant Board determined that during this period the landlord had no way of knowing which of its 1330 tenants were members of the Crescent Town Tenants’ Union. It had followed its normal policy in the filing of applications. The fact that the tenants were members of the Union was not the reason the applications were filed.[24]
4. Did the landlord continue these proceedings because the tenants were members of a tenants’ association? Was this a pertinent consideration?
[21] The landlord took the position that the Landlord and Tenant Board could not consider anything that happened after the applications were filed. This being so, having determined that the applications were not initiated contrary to subsection 83(3)(d), the issue of membership in the association no longer had any application to this case. In taking this position the landlord relied on the words “being brought” in the subsection as having a temporal context limiting its application to the commencement of the any application to terminate a tenancy. It would not matter whether, after the applications were filed the landlord continued on with them because the tenants were members of the union.
[22] The Landlord and Tenant Board did not accept this position. As it saw the issue, the words “being brought” are ambiguous. They could refer to an event in the past or to an ongoing process. As a practical matter, to propose that, having commenced an application for reasons other than the tenant’s membership in an association, a landlord could continue the same application because of that membership, would render subsection 83(3)(d) meaningless. It would not be hard for a landlord to work around the limitation at the outset and then continue on in order to impede membership in a tenant’s association. As found by the Landlord and Tenant Board, this would run counter to the intention of the legislation to protect tenants from selective eviction.
[23] In considering this question the Landlord and Tenant Board took up the assertion made on behalf of the landlord that, in fact, the Divisional Court had already determined the meaning of the phrase “being brought” as it appears in subsection 83(3)(d). This referred to MacNeil v. 976445 Ontario Ltd.[25] As recorded by the Landlord and Tenant Board, that case was an appeal from the Ontario Rental Housing Tribunal under the Tenant Protection Act. (In 2006 the Tenant Protection Act was repealed and replaced by the current Residential Tenancies Act. The Ontario Rental Housing Tribunal was dissolved and replaced by the Landlord and Tenant Board). In that case, as with this one, the tenants argued that the landlord had initiated eviction proceedings against them in retaliation for them complaining to a government authority. They asked that eviction be refused. The Divisional Court upheld the decision saying that the Tribunal had “correctly decided the issues of law and fact”. Contrary to the submissions that were made on behalf of the landlord, the Landlord and Tenant Board found that there was no suggestion in the decision that the tenants had asked the Tribunal to consider anything that happened after the notices seeking eviction were served. In such circumstances there was nothing in McNeil that would lead to a finding that the phrase “being brought” was limited to the point of initiation and that anything that happened thereafter was outside the scope of subsection 83(3)(d).[26]
[24] It follows that it was appropriate for the Landlord and Tenant Board to consider whether in continuing the applications for eviction the landlord had acted in a fashion contrary to subsection 83(3)(d). It did so. The Landlord and Tenant Board considered the discussion that had taken place between the landlord and tenants who were not members of the Crescent Town Tenants’ Union and those who were. These two sets of discussions were undertaken by different employees of the landlord.
[25] The employee dealing with those that were not members was prepared to offer twelve-month repayment plans and was amenable to considering longer term agreements. If asked if some portion of the arrears could be waived, he was prepared to include a waiver once the remainder of the arrears was paid. In considering the financial circumstances of the individual tenants, he did not ask them for documents that served to confirm their situation. He took them at their word.
[26] In October 2020 some of those tenants who were members of the Crescent Town Tenants’ Union delivered offers to the landlord. They summarized their financial circumstances, proposed that there be a waiver of some of their arrears and plans for payment of the remainder. Each of these proposals included a clause that the “Tenants and Landlord acknowledge that this Agreement is formed with support of the Crescent Tenants’ Union. Any renegotiation of its terms will occur between Tenant, Landlord and a representative from the Tenants’ Union.”[27] The employee that considered these proposals wrote back to each tenant stating that the landlord would not accept the proposal and making a counter proposal. He did not explain why the landlord had not accepted the proposals that had been made.
[27] Those tenants took the position that they had been treated differently. The landlord submitted that to establish that would require cross-examination directed to that point. The Landlord and Tenant Board did not agree. No one was challenging what either of the two employees had said. In both cases the testimony accurately set out the approach that each of them had taken.
[28] With these issues dealt with the Landlord and Tenant Board was ready to respond to three questions that it determined would have to be answered to respond to whether subsection 83(3)(d) applied to protect the tenants who were members of the Crescent Town Tenants’ Union from eviction:[28]
a. Were the tenants members of an association?
[29] The Landlord and Tenant Board pointed out that the landlord knew or should have realized that the tenants who sent payment proposals in October were members of the Union. It was clear from reading the proposals.[29]
b. Would the landlord have pursued the applications differently if the tenants had not been members of an association?
[30] The landlord treated the members of the Crescent Town Tenants’ Union, who made proposals to deal with their arrears, differently than those who were not. For those who were not members, supporting documents demonstrating their financial circumstances were not required. There was a willingness to consider waiving some portion of the arrears and some waivers were agreed to. For those tenants who were members of the union, supporting documents were required and waivers were not considered.
[31] The Landlord and Tenant Board relied on Yundt v. Parker[30] which determined that making a finding that applied subsection 83(3) did not require bad faith on the part of the landlord. Whatever the reason for the different approach, the effect was that the landlord treated members eviction proceedings differently than those who were not associated with the union. The purpose of subsection 83(3)(d) was to protect tenants from such differential treatment.[31]
c. Is the differential treatment the reason for the applications “being brought”?
[32] The Landlord and Tenant Board did not know which of the tenants who were members had made proposals and which had not. It found that those who had not made a proposal could not benefit from subsection 83(3)(d) since they had not participated in the negotiations. For those who had, the Landlord and Tenant Board found that different treatment was the reason why the application to evict “continued to be brought” and allowed for the protection from such treatment under subsection 83(3)(d). The Landlord and Tenant Board observed that but for that different treatment those cases might also have settled.[32] . Westdale Properties v. Reisher
In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal on being of "devoid of merit", in part because of inadequate reasons (here regarding the LTB's treatment of the RTA 83(1) 'unfairness' discretionary dismissal, which is a mandatory consideration):[36] I disagree. The LTB speaks through its reasons. The reasons are the place where parties may expect to see the important issues and relevant legal tests applied, and explained meaningfully, particularly in matters of significance, such as in eviction cases. While the transcript may go some way to demonstrating that the LTB was alive to the issues, it is the process of explanation and elucidation in reasons which puts on record how those issues were balanced and determined. Here, the reasons from the Hearing Decision do not discuss the impact on Ms. Reisher or any of the evidence from her support team. The reasons include only a one-line, conclusory sentence without any explanation of the circumstances and the requirements found in s. 83. I therefore find that there is an arguable point that the LTB erred in law by not meaningfully considering s. 83, an important provision in the overall scheme of the RTA. . Reisher v. Westdale Properties [for numbered case cites see main link]
In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court considers the s.83 'relief from eviction' provisions in a difficult mental disability case:Issue 2: Did the Landlord and Tenant Board, pursuant to s. 83 of the Residential Tenancies Act consider all the circumstances relating to relief from eviction?
[38] This leaves the question of whether the Board erred in law in not exercising its discretion to refuse to order the eviction of Jeanette Reisher. The Notice of Appeal refers to and the submissions made relied on s. 83 of the Residential Tenancies Act. Subsections (1) and (2) state: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 eviction order be postponed for a period of time.
(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). [39] In this case the Decision being appealed refers to relief from eviction being sought under s. 78(11)(b):78 (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,
.......
(b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6) [40] Subsection 78(6) states:If the Board finds that the landlord is entitled to an order under subsection (1), the Board may make an order terminating the tenancy and evicting the tenant. [41] The thrust of the two sections is the same. An order for eviction will be set aside unless it is unfair to do so; the determination of which requires that regard be had to “all the circumstances”.
[42] The submissions made on behalf of Jeanette Reisher suggest that the Board’s reasons are to identify, outline and consider all of the circumstances that bear on any decision made as directed by s. 83 of the Residential Tenancies Act. I point out there is a difference between “having regard to” and outlining and reviewing each circumstance in reasons for decision. Be that as it may, this a place where the understanding that we cannot hold tribunals like the Landlord and Tenant Board to the same standard as the court and where the need to bear in mind the status and role the Landlord and Tenant Board are relevant and important considerations. In this case the Landlord and Tenant Board was aware that Jeanette Reisher suffers from mental health issues, that she continues to interfere with the reasonable enjoyment of other tenants, that she continues to call them rapists, yells at them, threatens them, and bangs on their door in the middle of the night and that there was no reasonable expectation that her behaviour towards the other patients would change. The Board referred to and understood that there had already been a Consent Order granting relief from eviction, on agreed terms but the difficulties with her behaviour continued.[35]
[43] The relevant circumstances leading to an order that, pursuant to s. 83(1)(b) of the Residential Tenancies Act (or s. 78(11)(b)), it would not be unfair to provide Jeanette Reisher with additional time to find alternative accommodation and support. The member exercised his discretion to postpone the eviction under s. 83, but did not refuse to grant it bearing in mind all the circumstances including those arising from the impact on the other tenants and Westdale Properties.
[44] Ultimately, this was a discretionary order dealing with the remedy to be applied in circumstances where there has been a breach such that an eviction is justified. As such the decision is owed deference:In this case, as was found in the Second Review Order, the Board considered all of the disclosed circumstances and whether to grant relief from eviction and ultimately found that it would be unfair to do so, but did find that it was appropriate to delay eviction. The Board’s exercise of discretion in this regard, absent an error in principle, is entitled to deference from this Court.[36]
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