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RTA - Eviction Relief [s.83] (2)

. Kim v. Leung

In Kim v. Leung (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenant's RTA s.210 appeal, here from three related orders.

Here the court considers the RTA s.83 'eviction relief' provisions, which are rarely granted:

Did the Board err in its application of s. 83 of the Act?

[19] Finally, there was no error of law with respect to the Board’s application of s. 83(2) or s. 83(3) of the Act, as alleged. Subsection 83(2) requires the Board to review the circumstances and consider whether it should exercise its powers under s. 83(1) to refuse or postpone an eviction. In this case, the Board member specifically adverted to factors affecting the tenant, stating the tenant was vulnerable and would require more assistance to search for a high-security rental unit. This was because the tenant had stopped working and had a peace bond against her ex-spouse. The Board noted that the tenant had lived in the unit for a substantial period of time. Because of her concern for the tenant, the member extended the period for the tenant to vacate the unit until October 31, 2023. This occurred in a context where the original Board hearing was scheduled for April, then heard in August. The tenant had therefore had some time to search for other housing.

[20] Subsection 83(3) of the Act requires the Board to refuse to grant an application in certain circumstances. The tenant relies on s. 83(3)(c), which is where the “reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.” The tenant submits the provision applies because the landlord started the application after he tried to illegally increase her rent. The tenant did not raise this provision at the hearing, so no reasons are provided to address it. This is understandable since she was representing herself.

[21] However, it is implicit in the Board’s reasons that the Board member did not accept the landlord had started the application because of the tenant enforcing her legal rights. The landlord’s evidence, as summarized by the Board, was that he originally contacted the tenant about his intention to move into the unit in April 2023. He stated he wrote to the tenant about increasing her rent in August 2023 because it did not appear she was serious above moving out. The Board implicitly accepted this evidence by finding there was no evidence of bad faith on the landlord’s part. There is therefore no basis to apply s. 83(3).

. Steubing v. Drewlo Holdings Inc.

In Steubing v. Drewlo Holdings Inc. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenant's RTA s.210 appeal, here from "a Motion to Set Aside Order ... [which] terminated the tenancy ..." and the subsequent dismissed LTB review.

This is an RTA s.78(11) non-payment case [See 'Enforceable-Order-to-Eviction "Catch-Up Payment" and Tenant's One-Time Motion to Set Aside Eviction Order' - http://www.isthatlegal.ca/index.php?name=termination_non-payment.tenant_law_ontario#Enforceable-Order-to-Eviction%20Catch-Up%20Payment%20and%20Tenant's%20One-Time%20Motion%20to%20Set%20Aside%20Eviction%20Order].

Here the court considers the interaction of s.78 and s.83 ['Mandatory review' (eviction relief)]:

[36] As Mr. Steubing acknowledged that he had failed to comply with a term of the prior order, the only issue before the hearing adjudicator was whether, having regard to all the circumstances, it would not be unfair to set aside the prior order or make an order lifting the stay of the order effective immediately or on a future date specified in the order. The Appellants therefore had a reasonable opportunity to participate in the hearing as they received a reasonable opportunity to make provide submissions on whether the adjudicator should exercise this discretion.

[37] The Appellants submit that the LTB had a proactive obligation under subsection 83(2) to inquire into the circumstances relevant to whether it should order an eviction or impose another conditional order. To that end, the Appellants emphasize the wording of subsection 83(2), which states that the LTB “shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1)”.

[38] Although functionally similar to section 83, the provision of the RTA that governed the hearing Member’s options on the Appellants’ motion was subsection 78(11) of the RTA, whose mandatory language limited the Hearing Member as follows:

78 (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if any of the criteria set out in subsection (1) are not satisfied;

(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); or

(c) make an order lifting the stay of the order under subsection (6), and any order made under subsection (7) or (7.1), effective immediately or on a future date specified in the order.

[39] As there was no dispute that the Appellants had failed to pay the monthly rent on or before September 1, 2024 contrary to the Consent Order and that the Respondent was statutorily entitled to file the L4 Application pursuant to subsection 78(1) of the RTA, the Respondent submits, and I agree, that the Hearing Member had no authority to set aside the eviction order pursuant to paragraph (a). This left only the question of whether the Hearing Member should exercise his discretion under paragraphs (b) or (c) in light of all of the circumstances disclosed.

[40] The Reviewing Member correctly disagreed that the Hearing Member had failed in this obligation. The order indicates that the Hearing Member considered that the Appellants may require additional time to obtain new accommodations within their budget to pay in full and on time and specifically noted the remedial purpose of the legislation. Moreover, the Hearing Member otherwise gave Mr. Steubing ample opportunity to present his case. Further, in the order, the Hearing Member expressly referred to subsection 83(2), stating that he had “considered all of the disclosed circumstances in accordance with subsection 83(2) ...” The Hearing Member also delayed lifting the stay of the prior order to February 28, 2025, over three months after the date of the order. Postponing the eviction demonstrates that the Hearing Member had indeed turned his mind to the Appellants’ circumstances.

[41] This ground of appeal therefore fails.

[42] The LTB did not fail to consider all the circumstances. Rather, the Hearing Member considered the Appellants’ circumstances but found that it was not appropriate to grant relief from eviction given that the same economic circumstances existed at the time of past orders. The LTB was entitled to take into account that the Appellants had entered into an agreement in which they committed to pay the rent on or before the date that it was due, despite the length of the tenancy and other circumstances not disclosed at the hearing on November 19, 2024. While the Appellants may have relied upon health conditions at earlier proceedings before the LTB, on November 19, 2024, Mr. Steubing “testified honestly and candidly and makes no excuses for his inconsistent payment history.” In other words, although submissions on his medical difficulties may have been relevant to the Member’s consideration of all of the circumstances, Mr. Steubing voluntarily chose not to raise these issues at the hearing and instead focus on the technical aspect of the breach as a valid strategic decision.

[43] The Appellants submit that the LTB ought to have been more empathetic to the Appellants in a situation where there was a technical breach of the prior consent order, but where they had ultimately paid the missed rent two days later. It is not the role of this Court to interfere in the LTB’s exercise of discretion, absent an error of law. While the Appellants disagree with the LTB’s decision in the context of all the circumstances, they have not identified an error of law that should lead to this Court’s intervention. That the Appellants did not like the outcome, does not make it an error of law.

[44] In addition, although the prior breaches of prior orders were not directly relevant to the late payment that prompted the Respondent to apply for termination, the Appellants’ past history of failed consent orders was relevant as “all of the circumstances” on the issue of whether it would not be unfair to set aside the ex parte order despite the subsequent full payment.

[45] The hearing adjudicator considered all of the circumstances as required by subsection 78(11) to determine whether to exercise that discretion. “All of the circumstances” necessarily includes circumstances that do not assist the Appellants, but may instead militate against setting aside the prior order. As a result, the submissions from the Respondent’s legal representative on the Appellants’ past history of breached conditional orders was relevant to the proper exercise of that discretion.

[46] The LTB reasonably exercises its discretion to refuse to grant relief from eviction where the ongoing conduct of a tenant suggests that such conduct is unlikely to change. There is no basis for this Court to intervene in such circumstances. The decision to deny the motion on a proper exercise of discretion is not a denial of procedural fairness.

[47] If information that the Tenant Duty Counsel intended to add related to the Appellants’ medical conditions, this would logically relate to postponing lifting the stay of the prior order, not setting it aside since the balance of the evidence indicated that the Appellants “have struggled to pay their monthly rent over the last six years, which has resulted in six applications being filed to the Board.” Mr. Steubing made no submissions or representations before the Hearing Member that the Appellants’ medical conditions impaired his ability to participate in the proceedings.

....

[52] The LTB made findings of fact and mixed fact and law to conclude that the Appellants breached a condition of a previous consent order, which required the Appellants to pay their rent on time. The LTB exercised its discretion under s.78(11) of the RTA to deny the Appellants’ motion to set aside the eviction order that resulted from their breach. After considering all the surrounding circumstances, the motion Member found it would be unfair to set aside the eviction order. The Member exercised their discretion to postpone the lifting of the stay order. The Appellants requested a review of the motion order, which was denied without a hearing being held.

. Mason v. Azubalis

In Mason v. Azubalis (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, here where "the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation".

Here the court considered the 'mandatory refusal' [RTA s.83(3) - 'Circumstances where refusal required'] termination defence provisions:

Section 83(3): Mandatory Refusal

[36] Under s.83(3), the Board must grant relief from eviction if (b) the reason for the application being brought is that the tenant has complained to a government authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards, or (c) the application was brought because the tenant attempted to secure or enforce her legal rights.

[37] Whether there are circumstances that give rise to relief from eviction under s. 83(3) concerns a finding of fact or mixed fact and law and would only rise to an error of law if, for example, the Board failed to consider whether any of the factors set out in s. 83(3) had been met: see for example Jackson v. Capobianco, 2017 ONSC 3324. That is not the case in this appeal. The Board considered the factors set out in s. 83(3) and made a finding of fact that the application had not been brought as a result of the Tenant's complaints.

[38] However, when considered in the context that the Board comingled the intent of the Landlord and the intent of the Landlord's son, the Board's conclusion on s. 83(3) is also confusing. As set out above, when considering s. 83(3), the Board concludes that "I find that it is more likely than not that the application was brought because the Landlord genuinely intends to move in." It is therefore not clear if the factors considered by the Board related to the Landlord or only to the Landlord’s son.

. Linton v. Daley

In Linton v. Daley (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 appeal, here from "an Order of the Landlord and Tenant Board (the “Board”) dated September 16, 2024, that evicted him from his basement apartment on the grounds that the rental unit is required by the Landlords for their daughter and her husband".

The court considers an RTA s.83(3) ['Circumstances where refusal required'] tenant defence issue, here where the appellant had mental health problems:

Did the Board Member Err in Failing to Find that the Landlords Breached their Duty under Section 23 of the RTA and in Failing to Refuse to Grant the Eviction under Section 83 of the RTA?

[19] Section 23 of the RTA states:

A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.

[20] Section 83 of the RTA states in part:

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).

(3) 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; ...

[21] At paragraphs 37-42 of the Order, the Board member considered whether relief from eviction under s. 83 of the RTA should be granted. The Board Member noted that the Tenant has been dealing with mental health issues since he was 11 years old and that he has limited income. She found that this was not a case in which the decision to evict the Tenant was due to conduct attributable to his disability or medical condition.

[22] The Tenant submits that the Board Member should have refused to grant the eviction on the basis that the Landlords had been harassing and coercing him for a number of years. The Board Member considered the Tenant’s evidence and was unable to come to the conclusion that he had been coerced to vacate the rental unit. The Order, at paragraphs 28-31, states:

28 Four months after he obtained affordable housing in Windsor, “the torture began”. He indicated that he has been hunted down for the past 10 years by the RCMP and their torture agents with “energy” weapons (EMP – electromagnetic pulse devices).

29 This has included being targeted for the past seven years that he has resided in the rental unit. He described the rental unit as a “torture chamber”. That is because the Landlords have given approval to the RCMP “to install a team of several torture agents” in the Landlords’ unit to torture him “24 hrs a day”. It is the RCMP’s intent to have him evicted by the LTB, leaving him homeless and subject to more torture.

30 While I accept the Tenant’s concerns are truthfully given and serious in nature, without adequate proof I am unable to reach the same conclusions as the Tenant. He led no evidence, other than his statements, that would establish the claim that he was being compelled to move out of the rental unit by either the RCMP or the Landlords’ cover or overt actions.

31 The Tenant did not present any witnesses, such as a mental health caseworker, to supplement his evidence. It is clear he does not have access to such supports and resources.

[23] The alleged errors do not raise a question of law.

[24] The Tenant brought a motion to adduce fresh evidence to, amongst other things, “... contradict the landlords’ claims that there are no RCMP proxy-agents living with the landlord and harassing me day and night with Energy Weapons”. I dismiss this motion because it would serve no useful purpose given that this appeal is limited to questions of law and because the motion record had not been uploaded to Case Center by August 26, 2025, in accordance with Justice Matheson’s directions.

. Henye v. Minto Apartment Limited Partnership on behalf of the Registered Owners ['conditional order']

In Henye v. Minto Apartment Limited Partnership on behalf of the Registered Owners (Ont Divisional Ct, 2025) the Divisional Court dismissed a RTA s.210 appeal, here where the tenant was evicted for "substantially interfer(ing) with the reasonable enjoyment of the residential complex for all usual purposes by another tenant contrary to s. 64(1)" by smoking.

Here the court considered the RTA s.83 relief from forfeiture provisions as a basis for issuing a 'conditional order' [one short of eviction, under s.83(1)(a)], including the applicable appellate SOR:

[4] On January 3, 2024, a hearing was held by videoconference. In its Order dated May 10, 2024, the Member found that the appellant had not made a meaningful attempt to address the cigarette odour emanating from his residential unit. The Member found that the appellant’s behaviour substantially interfered with the reasonable enjoyment of the residential complex.

[5] Pursuant to s. 83 of the RTA, the Member considered whether it would be unfair to refuse to evict the appellant. The appellant testified that he would comply with any order requesting that he cease smoking in the rental unit. However, when asked whether he would “continue doing what you’re going to do” once the motion concluded, the appellant replied: “I’m going to live my life the way I live it”. In light of this comment, the Member found that it seemed that the appellant would not comply with a conditional order. However, the Member delayed the appellant’s eviction to June 30, 2024.

....

[21] Subsections 83(1) and 83(2) of the RTA state:

Power of Board, eviction

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. 2006, c. 17, s. 83 (1).

Mandatory review

(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). 2006, c. 17, s. 83 (2).

[22] The appellant states that the Board erred in disregarding:

(a) The appellant’s verbal commitment to abide by the terms of any conditional order made by the Order as an alternative to his immediate eviction.

(b) The appellant’s attachment to the only accommodation he has known all his adult life and did not consider the unavailability of any similarly situation alternative accommodation.

[23] The assertion that the Member failed to consider relevant facts and thus failed to properly consider whether relief from forfeiture should be granted under s. 83 of the RTA does not give rise to a question of law. Rather, it is an invitation to have this court reassess the evidence and the findings of fact made by the Member, which is not this Court’s function on appeal under the RTA: Kushner v. Turtledove Management Corp., [2009] O.J. No. 1064, at para. 3; Oz. v Shearer, 2020 ONSC 6685, paras. 31, 34. At best, the exercise of discretion under s. 83 of the RTA is a question of mixed fact and law, which is not subject to appeal either: Oz, para. 35.