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RTA - Reinstatement of a Tenancy. 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.
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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. . Wright v. Lallion
In Wright v. Lallion (Div Court, 2023) the Divisional Court considered (and allowed) a residential tenant's sympathetic motion to extend time to commence an appeal (this is not to extend time before the LTB under RTA 190), here where the tenant had already been evicted.
. Tataw v. Minto Apartment L.P.
In Tataw v. Minto Apartment L.P. (Div Court, 2023) the Divisional Court considered an already evicted tenant's remedy, contrasting their situation with a pre-eviction automatic stay under R63.01(3). At paras 5-7 the court comments on the nature of the interests protected by the RTA:[2] An eviction order of the LTB is stayed automatically upon filing of an appeal to this court: Courts of Justice Act, RSO 1990, c. C.43, s. 134; Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 25 and R. 63.01 of the Rules of Civil Procedure. However, where an eviction is carried out by the Sheriff in accordance with an LTB order before a stay is in place, then the situation is different. It is then too late to stay the eviction order, which has been executed. Rather, in this circumstance, the tenant is obliged to move for an interim order from this court for repossession of the unit or an order precluding the landlord from re-renting the unit. In the absence of such an order, the landlord may rent the unit to a new tenant.
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[4] Where the eviction or the re-renting of the unit has taken place in violation of a statutory stay or an order of the LTB or of this court, or where the new tenancy is a sham or to a person not at arm’s length from the owner, there may be room to restore a tenant to possession: MacMillan v. Martin, 2022 ONSC 357 (Div. Ct.); Margulis v. E. Manson Investment Limited, 2020 ONSC 7969 (Div. Ct.); Lysak v. Atkinson, 2020 ONSC 6972. That is not this case. The landlord re-rented the unit to a new arm’s-length tenant, who has been in possession since September 2022. In these circumstances, even if the appellant’s appeal were to succeed on the merits, the court would not oust the new tenant to restore the appellants to the unit.
[5] In the alternative, the appellant seeks an order to compel the landlord to “restore” her to a different unit, when it becomes available. There is no statutory or common law authority for such an order, and it misconceives the structure of the Residential Tenancy Act. The Act does not protect the landlord/tenant relationship, but rather the tenant’s interest in the rented unit. Once that interest has been extinguished, there is no jurisdiction to order that the tenant be granted an interest in a different rental unit.
[6] The Act balances the interests of landlords and tenants. It provides substantial security of tenure for tenants – a derogation of the landlord’s common law right to control the use to which it puts its own property. This security of tenure continues until the tenant gives up the tenancy or the LTB makes an order terminating the tenancy. Where the LTB makes such an order, there are rights of reconsideration before the LTB, and appeal rights to this court, either of which may serve to stay an eviction order and delay the date by which a landlord may recover the use of its property. However, tenants must avail themselves of the processes for reconsideration and/or appeal in a timely way if they wish to prevent eviction and loss of the tenancy.
[7] Therefore, I conclude that on the preliminary issue, the remedy of restoration of the tenancy – in the original unit – is not available to the appellants in the circumstances of this case. An order that a tenancy be established for the tenant in another unit owned by the landlord is not available in law. . Guillaume v. Barney Rivers Investments Inc.
In Guillaume v. Barney Rivers Investments Inc. (Div Ct, 2022) the Divisional Court applied the RJR McDonald injunction test to a tenant-appellant's motion to reinstate their tenancy pending appeal:[9] The motion judge correctly characterized the issue before her as requiring her to apply the test in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. She found that the appeal meets the low bar to establish a serious issue to be tried but concluded that the tenant did not establish irreparable harm. This is a factual finding, rooted in the record, and discloses no error. The motion judge also found that the balance of convenience weighed against placing the moving party in the premises, but also weighed in favour of prohibiting the landlord from leasing the premises to anyone else pending the determination of the appeal. As the motion judge expressed, this balance limited the risk of changing the status quo in a way that could lead to complications upon disposition of the appeal in this court.
[10] The motion judge applied the correct legal test, made no palpable and overriding error of fact, and her exercise of discretion discloses no basis for this panel to intervene . Canadian Mental Health Association Toronto Branch v So
In Canadian Mental Health Association Toronto Branch v So (Div Court, 2022) the Divisional Court (Leiper J) considered cross-motions in an RTA s.210 appeal where the tenant had already been ordered terminated and evicted. The tenant's motion was for physical re-instatement of the tenancy pending the appeal, and she argued that the orders were stayed by virtue of SPPA 25(1) notwithstanding the eviction. The court treated the re-instatement motion as one for interlocutory injunction under RJR-McDonald and granted it. The case is interesting for it's preservation of the tenant's appeal rights post-eviction, and it's related physical reinstatement.
. Schram v. Thompson
In Schram v. Thompson (Div Court, 2022) the Divisional Court awarded an unusual reinstatement of a tenant after they had been evicted for non-participation in the eviction hearing. One day after the eviction the tenant filed for a review of the eviction order, and that same day the LTB issued a stay of the order, on the basis that the tenant had not received notice of the LTB hearing. Subsequently, the LTB denied that it had jurisdiction to reinstate to tenant as the landlord claimed her disabled son was in occupation of the premises - the issue being that fresh occupation barred the LTB's reinstatement jurisdiction.
On s.210 appeal to the Divisional court the court found that the LTB had both RTA s.31(1)(f) ["make any other order that it considers appropriate"] and SPPA s.23(1) ["abuse of process"] jurisdiction:Did the Board err in finding it did not have jurisdiction to reinstate a tenancy where a rental unit is “occupied”?
[25] The Residential Tenancies Act, 2006, S.O. 2006, c. 17, is remedial legislation and it is to be given a “large and liberal interpretation”: Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin, 2020 ONSC 7405 at paras. 58-75. One of its primary purposes is to protect residential tenants from unlawful rent increases and evictions: Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468 (C.A.), leave to appeal refused [2010] S.C.C.A. No. 369.
[26] The Board has broad jurisdiction to review its own orders, including to correct a miscarriage of justice. Section 209(2) of the RTA allows the Board to review an order “if a party to a proceeding was not reasonably able to participate in the proceeding.” That is what the LTB found took place at the first hearing of the Landlord’s application to evict the Tenant. That finding was not challenged on reconsideration or appeal and so has been finally determined. It is not open to the parties, the Board, or this court, to disregard or change this finding.
[27] The Board may terminate a tenancy in accordance with s. 37(1) of the RTA. A landlord may only recover possession of a rental unit where a tenant vacates or abandons the premises or where the Tenant is subject to a Board order terminating the tenancy or evicting the tenant. Where a tenant has been evicted pursuant to a Board order, the Board has jurisdiction to restore a tenant to possession of a rental unit if the Board grants a tenant’s request for review of the eviction order. Where the unit is vacant, the Board has held, and this court has approved, that the Board has the authority to restore possession to a tenant pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to prevent an abuse of its process: TSL-06175-10-RV (Re), 2010 CanLII 65490 at paras. 1-4 (Ont. LTB); TSL-67800-15-RV (Re), 2016 CanLII 39858 at paras. 25-30 (Ont. LTB); Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692 at paras. 16-17 (Div. Ct.); Young v. CRC Self-Help, 2020 ONSC 1874 at para. 39 (Div. Ct.); Metropolitan Toronto Housing Authority v. Ahmed, [2001] O.J. No. 1477 at paras 7-10 (Div. Ct.).
[28] In Seguin, this court found that the Board has broad remedial jurisdiction to reinstate a tenant, including by virtue of s. 31(1)(f) of the RTA which permits it to make “any other order that it considers appropriate.”
[29] In seeking written submissions on whether to order reinstatement, the Board reviewed the procedural history of the matter and concluded that:Logically, where a tenant successfully argues, on a review, that she or he was not reasonably able to participate in the hearing, and the Board’s order has been enforced by the Sheriff but the unit remains vacant, I believe that the Board does have the jurisdiction to order that tenant back into possession, once the review is granted, in order to prevent an abuse of process. This is especially so as, upon a successful review request, the initial order is null, the tenancy between the parties has not been terminated, and the tenant retains the right to possession of the unit by virtue of the tenancy agreement. However, this may not be where a new tenant or, in this case, the Landlord’s son, is in possession of the unit.
Given the above, I find that the Board lacks the jurisdiction to grant the Tenant’s request to return possession of the rental unit to the Tenant since he was lawfully evicted, and the rental unit is no longer vacant. No further submissions were provided by the Tenant to counter the Landlord’s submission with respect to the status of the rental unit. As such, the Tenant’s request must be denied.
(Emphasis added) [30] The Board’s decision is flawed in multiple ways:a. it failed to consider the implications of the Board having stayed the eviction order almost immediately after the eviction was carried out and failed to inquire into the date on which the tenant’s son was said to have occupied the unit;
b. it relied on an unsworn written submission from the Landlord that the Landlord’s son was occupying the unit;
c. it failed to require an affidavit from the son (the alleged occupant) as required by s.72(1)(a) of the RTA;
d. it failed to consider whether it had remedial discretion to displace an “occupant” who was not a “tenant”; and
e. it failed to consider whether it had remedial discretion to displace a “tenant” to address an abuse of process in respect to a prior tenant. [31] It was necessary for the Board to require a proper evidentiary basis for the claim that the Landlord’s son was occupying the unit, including evidence of the date on which he took up that occupancy. Of course, if the Landlord and her son had presented false sworn evidence to the Tribunal in response to such requirements, then the Tribunal’s decision might have been the same. But if sworn evidence had been required, including evidence from the son, this might have given the Landlord pause. That is one of the reasons for the requirement of sworn evidence: the Landlord made a false statement to the LTB. If she had been required to put that statement under oath, it might have given her pause. The Landlord’s son might not have been prepared to provide false testimony. Requiring a proper evidentiary basis, in this case, could have prevented the injustice that took place.
[32] Once the Board had a proper record before it, it was then necessary for the Board to consider its jurisdiction and the proper exercise of its remedial discretion on the basis of the facts before it. In the circumstances of this case, it is not necessary for us to reason through the issues of jurisdiction and exercise of discretion. As we explain below, with the evidentiary record before this court, which was not before the Board, questions of jurisdiction do not arise, and the proper exercise of discretion is straightforward.
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