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RTA - Eviction Relief (3). Delic v. Henley Group Ltd.
In Delic v. Henley Group Ltd. (Div Ct, 2026) the Divisional Court grants a motion to quash an RTA s.210 appeal, that brought against a tenancy termination order.
Here the court considers it's discretionary 'eviction relief' powers under RTA s.83(1) ['Power of Board, eviction'], and that such LTB decisions are not 'questions of law' to attract appellate review under RTA s.210:[25] Under s. 83 of the RTA, in an application concerning a breach of an order of for non-payment of rent, the Board’s decision is an exercise of discretion, requiring the Board to consider all the circumstances before deciding whether an eviction should be granted, denied, delayed or refused on a mandatory basis. The Board’s exercise of its discretion involving weighing of relevant factors is owed discretion [SS: I think this should read 'deference'] (see: Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244, at para. 47). The Board does not need to expressly review each and every factor that it considered (see: Frolov v Shakori, 2026 ONSC at par. 62).
[26] An appeal does not raise a question of law where an appellant merely alleges that the Board gave insufficient weight to certain evidence, improperly balanced the relevant factors, or reached the wrong conclusion under s. 83 after considering all of the circumstances (see: Devenne v. Sedun, 2020 ONSC 6141, at para. 34 to 37; Maynard v. Kerr, 2022 ONSC 4259, at para. 19; Chan v Tralen Investments Inc., 2023 ONSC 4345, at paras. 17-19; Collins-Neely v. 2540507 Ontario Inc. et al, 2025 ONSC 1171, at para. 15. 62)
[27] For example, in Maynard, supra, the Divisional Court held that a tenant’s appeal of the Board's determination that it would be unfair to grant relief from eviction under s. 83(1) did not raise a question of law. The Court found that the tenant was merely challenging the Board's consideration of the circumstances and the conclusion reached, which are matters of discretion rather than appealable legal errors. As a result, the motion to quash and lift the stay was granted pursuant to s. 134(3) of the CJA.
[28] This appeal does not raise a question of law.
[29] The Appellant appeals on the basis that the Board “erred in law and/or exercised its discretion unreasonably under s. 83 of the RTA by failing to give adequate weight to 4 things:a. The Appellants improved financial circumstances and willingness to retire arrears in 1 to 2 months;
b. The Appellants serious recurring health issues and the irreparable harm the eviction would cause;
c. The unique importance the location of the rental unit had for the Appellant;
d. The decision was unreasonable in it concluded that there would be no irreparable harm. [30] In this case, the Appellant is not alleging that the Board considered the wrong factors. He is challenging the Board’s weighing of those factors. This is not a question of law. In any event, the Board’s decision is owed discretion. I see no error in the Board’s decision. The Appellant merely reargues in this appeal what was rejected by the Board. . Frolov v. Shakori
In Frolov v. Shakori (Div Ct, 2026) the Divisional Court dismissed a tenant's heavily-contested RTA termination appeal, here grounded in non-payment of rent.
Here the court considers the RTA s.83 'eviction relief' provisions:c. Analysis under section 83 of the Act
[60] I now turn to the Appellant’s argument with respect to the LTB’s analysis under section 83 of the Act.
[61] Subsections 83(1), (2) and (3) of the Act provide as follows: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.
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).
Circumstances where refusal required
(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;
(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. [62] Section 83 of the Act requires that the LTB consider all of the prevailing circumstances before ordering an eviction. While the granting of relief under section 83 is discretionary, the consideration of all of the prevailing circumstances is not. The failure to take into account all relevant circumstance is an error of law. However, it is not necessary for the LTB to articulate expressly each and every factor that they have considered. The LTB deals with a high volume of cases and is not required to address every issue raised or argument made by the parties. See Musse v. 6965083 Canada Inc., 2021 ONSC 1085 at paras. 52, 54, 55, 58, and Cater v. Khakh, 2020 ONSC 6884 at para. 34.
[63] The interplay between subsections 83(1) and 83(3) of the Act was discussed in Gorscak v. Jarzabek, 2025 ONSC 4855 (“Gorscak”), where Faieta J. stated the following at paragraph 33:The LTB submits that it routinely interprets and apply [sic] s. 83(3) of the RTA to mean that the breach of the landlord’s responsibilities under the RTA must be ongoing in order to engage the mandatory relieving power under s. 83(3) of the RTA. However, that provision is subject to the broader discretion under s. 83(1) of the RTA to refuse to grant an eviction application unless it would be unfair to refuse to do so in the circumstances. The fact that the usual remedy for a tenant’s illegal lockout from their apartment is damages or a rent abatement under T2 application does not mean that it is an irrelevant circumstance under s. 83(1) of the RTA. Such an interpretation would be inconsistent with the “tenant protection focus” of the RTA […]. ....
[65] As set out in Gorscak, the fact that none of the mandatory grounds for refusing the application listed in subsection 83(3) were present did not relieve the LTB from its obligation to consider all the circumstances when exercising its discretion under subsections 83(1) and (2). .... . Andre Edwards v. Centurion Property Associates Inc. [RTA s.83(1)(a) 'double negative']
In Andre Edwards v. Centurion Property Associates Inc. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a tenant's joint RTA s.210 appeal/JR, these brought against the granting of an "an eviction order because the Tenant persistently paid the rent late".
Here the court acknowledges the problems with the 'double-negative' textual drafting of RTA s.83 ['Power of Board, eviction'], which reads in relevant part "refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse":[11] The Tenant then submits that the Adjudicator applied the incorrect test under s. 83 of the Act, submitting that the test was applied backwards. Counsel to the landlord notes that this issue was not raised in the request for a review. In any event, an error has not been shown. The Adjudicator concluded that it would be unfair to grant relief from the eviction under s. 83(1). That subsection says the LTB may refuse to grant the eviction unless it would be unfair to refuse. The double-negative is not helpful. Read in context, I do not find the paraphrasing of s. 83 in the reasons for decision led to a legal error. . 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.
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