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RTA - Reviews (Reconsiderations) (3). Shafiq v. Ramsay [version of RTA s.209(2) prior to 01 July 2026 amendment]
In Shafiq v. Ramsay (Ont CA, 2026) the Ontario Court of Appeal allowed an RTA appeal, here respecting RTA 71.1 ['Application based on certain notice' (personal possession affidavit)].
Here the court considers the interpretation to be placed on the former (now repealed and replaced at 01 July 2026) RTA s.209(2) [Power to review] (aka 'reconsiderations'):[3] The appellant appeals from the Divisional Court’s order on two grounds, which I would frame as follows:....
(2) The Board and the Divisional Court erred in affirming an incorrect approach to “reasonably able to participate” for the purpose of s. 209(2) of the RTA. The Board and the Divisional Court erred in narrowly assessing only whether the appellant should had received notice of the hearing rather than broadly considering whether the appellant had been “reasonably able to participate” pursuant to s. 209(2) of the RTA. The appellant was denied procedural fairness. [4] ... the Board’s interpretation of “reasonably able to participate” under s. 209(2) was overly narrow and failed to consider all relevant circumstances and was therefore incorrect. ....
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ii. Did the Board err in law with respect to its finding that the appellant should have received the hearing notice and was therefore “reasonably able to participate” under s. 209(2) of the RTA?
[28] Section 209(2) of the RTA empowers the Board to review its orders, which are otherwise final and binding, as follows:Without limiting the generality of section 21.2 of the Statutory Powers Procedure Act, the Board’s power to review a decision or order under that section may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding. [29] As earlier noted, the appellant argues that he was not reasonably able to participate in the March 20, 2023 Board hearing of the eviction application because he had not received notice of the hearing and because of his disabilities.
[30] The Board did not accept that the appellant was not “reasonably able to participate”. The Board did not find that the appellant actually received the notice of the March 2023 hearing date. Rather, the Board’s reasons focussed on explaining why the appellant should have received the notice: the Board’s files indicate that it was mailed; the appellant had received other notices from the Board; and the appellant did not check his mail regularly, which, if he had, should have brought the notice to his attention.
[31] The Board’s findings as to why the appellant should have received the notice were open to it on the record and are not tainted by error in principle or a misapprehension of the evidence. As such, they do not represent an error of law that is subject to appeal under s. 210(1) of the RTA.
[32] Those findings, however, were not the end of the analysis. The Board should have determined: 1) whether the appellant was “reasonably able to participate” under s. 209(2), considering his disabilities; and 2) in any event, whether, under s. 83(1), the eviction should have been refused “having regard to all the circumstances”. Under s. 83(2), the Board’s consideration of all the circumstances was mandatory.
[33] The Board failed to address and determine these material issues. The Board erred by focusing narrowly on whether the appellant should have received the hearing notice. In so doing, the Board failed to address the appellant’s alternative explanation that his cognitive impairments precluded him from reasonably being able to participate, even if he had received the notice, and failed to consider all of the relevant circumstances and determine the overarching question of whether the eviction should be refused. The failure to address and determine material issues raised by the appellant is an error of law: Elkins, at paras. 38-39, 44, 67 and 76; Timbercreek Asset Management Inc. v. Soufi, 2024 ONSC 4041, at para. 24.
[34] This case is distinguishable from Abdalla v. Kooirala, 2023 ONSC 7106, where the tenants were found to be exploiting the appeal process to avoid paying rent. There was no evidence or allegation that the appellant was exploiting the appeal process in this case.
[35] The Board’s erroneously truncated analysis resulted in serious, procedural and substantive unfairness to the appellant.
[36] First, the appellant could not raise the invalidity of the N12 notice and the mandatory consequences that flowed under s. 71.1 of the RTA. Second and relatedly, he could not test the landlord’s evidence about his good faith intention to occupy the Unit. This was a significant loss. As earlier noted, the landlord’s reasons to occupy the Unit kept shifting from N12 notice to N12 notice, in his testimony before the Board on the eviction application, and then on the first review: the landlord variously needed the Unit for himself alone, for his wife and children, or for his parents.
[37] Finally, the appellant was denied the benefit of consideration of whether the eviction should be refused in all the circumstances under s. 83(1) of the RTA. These circumstances included the disabilities of the appellant and his co-tenant Ms. Wright. They were referred to the Legal Clinic that represented them at the hearing by their family physician’s office. Counsel did not draft an affidavit for Ms. Wright because she did not seem capable of signing one. The transcript from the first Board review hearing reveals that Ms. Wright gave incoherent and unresponsive testimony to questions asked of her. This should have caused the Board to have serious issues about her capacity and her ability to reasonably participate in a hearing.
[38] The appellant had been a tenant for over 14 years. The tenancy was being terminated not because of any fault by the tenant, but because the landlord purported to terminate it under s. 48 for reasons that kept changing, without complying with the mandatory provisions of s. 71.1. The appellant asserted disabilities that prevented him from reasonably participating. The Board failed to consider any of these important issues. In the circumstances, the appellant was entitled to a hearing on the merits. . Browne v. Henley Crescent
In Browne v. Henley Crescent (Ont Div Ct, 2026) the Ontario Divisional Court allowed an RTA appeal, here brought against a landlord's successful review (reconsideration) application and the resultant second hearing which resulted in the appellant spouse of the tenant being evicted.
Here the court considered whether the LTB erred in law by finding a 'serious error' at the first review (reconsideration) proceeding, this after the first main LTB ruling (which set aside the ex parte eviction order after an Agreement to Terminate was signed by the other spouse - but only by the other spouse) found the spouse to be a tenant (and thus entitled to stay in the premises). The case also extensively considers the 'spousal assumption of tenancy on death or abandonment' [RTA General Reg s.3(2)] provision:The Board erred in conducting a review in the absence of a serious error
The Board’s jurisdiction to review an order
[21] Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that “[a] tribunal may, if it considers it advisable and if its rules made under section s. 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”
[22] Rule 26 of the Landlord and Tenant Board Rules of Procedure grants the Board the discretion to review its orders. Rule 26.8 makes it clear that a request to review an order must provide “sufficient information to support a preliminary finding of an alleged serious error or an explanation as to why the requestor was not reasonably able to participate in the hearing.”
[23] The Board’s Interpretation Guideline 8 makes it clear that the Board will only exercise its discretion to review an order if one of these two conditions exist. The guideline also makes it clear that a review is not an opportunity for the parties to present a better or different case than was presented at the hearing. Absent an application of improper principles or insufficient evidence to support the Board’s conclusions the review should not be granted.
[24] Guideline 8 also gives examples of what is a serious error. They include an error of jurisdiction, a procedural error that raises issues of natural justice, an unreasonable finding of fact on a material issue, new evidence that was unavailable at the hearing and could affect the result, an error in law and an unreasonable exercise of discretion that results in an order outside the “usual range of remedies or results and where there are no reasons explaining the results.”
[25] In this case, while the precise words were not used, the First Review Decision found that the Set Aside Decision either contained an unreasonable finding of fact on a material issue, (i.e. whether Ms. Browne was a tenant or an occupant) or constituted an unreasonable exercise of discretion.
[26] Section 2(1) of the Act defines a tenant as including “a person who pays rent in return for the right to occupy the unit”. The definition of “rent” in s. 2(1) includes consideration paid on behalf of a tenant. There is no question that Ms. Browne meets this definition.
[27] In a residential tenancy relationship, there is a tenancy agreement, which according to the Act can be oral, written, or implied: s. 2(1). It is clear that not everyone who occupies a rental unit is necessarily a tenant. As the Board’s Interpretation Guideline 21 makes clear, s. 202 of the Act requires the Board, in making findings on this issue, to ascertain the real substance of the transactions and activities relating to the rental unit. Interpretation Guideline 21 also makes it clear that s. 202 of the Act is not limited to looking behind the corporate veil.
[28] There is a considerable amount of Board jurisprudence on the subject of who is a tenant and who is an occupant. In Garten v. , 2024 ONLTB 29857 at paras. 18 and 19, the Board summarizes the kind of facts that have been found to “be indicia that a tenancy agreement exists between an individual and a landlord” (emphasis in original omitted). They are that the person paid rent directly to the landlord, the person has lived in the unit for an extended period of time, the landlord permitted occupancy of the unit by the individual, the landlord has enforced its rights against the individual, the individual has enforced their rights against the landlord, the individual has requested maintenance or repair of the rental unit, the individual and the Landlord communicate on issues concerning the unit, and the landlord has identified the individual on its own internal records. There is no issue that a number of these indicia applied to Ms. Browne. She paid rent directly to the landlord, she had lived in the unit for an extended period of time, the landlord permitted her occupancy in the unit, she made maintenance and repair requests to the landlord, the landlord communicated with her on issues concerning the unit and she was identified as a tenant on one of the landlord’s records.
[29] While the First Review Decision may have found these facts to be insufficient to support a finding that Ms. Browne was a tenant, there is no basis for finding that the Set Aside Decision’s conclusion on the issue was unreasonable. It was consistent with the statutory scheme of the Act, it was consistent with the remedial and tenant protection purpose of the Act, it was consistent with the Board’s jurisprudence on what the indicia of an implied tenancy agreement are and it is consistent with the jurisprudence from this Court in Jemiola v. Firchuk (2005), 206 O.A.C. 251 (Div. Ct.) at para. 9 that the definition of “tenant” in the Act is “broad and inclusive and should be broadly and liberally construed.”.
[30] It is clear that the member who made the First Review Decision disagreed with the Set Aside Decision’s conclusion that Ms. Browne was a tenant and dismissed this conclusion on the basis that the member who made the decision was “emotional” and driven by the desire to achieve a particular result. First, given what I have outlined in the previous paragraph, the Set Aside Decision meets all the hallmarks of a reasonable decision, which means that it cannot be dismissed in the way that it was in the First Review Decision. Second, disagreeing with a result is not sufficient to make a decision irrational. As the Supreme Court of Canada has pointed out, reasonable people can disagree; the fact that they do is not sufficient to make a decision unreasonable: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 83; see also Wilson v. Intact Insurance Company, 2025 ONSC 5305 (Div. Ct.), at para. 46.
[31] For these reasons I find that the First Review Decision erred in law when it found that the Set Aside Decision contained a serious error. As such, the threshold for a review was not met and the review hearing should not have proceeded. This means that the First and Second Review Decisions should be set aside and the Set Aside Decision restored.
The Tribunal erred in its interpretation of s. 3(2) of the Regulation
[32] Subsection 3(2) of the Regulation provides as follows:If a tenant vacates a rental unit without giving notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act. [33] The Regulation provides for a number of circumstances where this provision would not apply. It is agreed that none of the enumerated circumstances are applicable to the case at bar.
[34] The Board in the Set Aside Decision decided that s. 3(2) of the Regulation did not apply to Ms. Browne because Mr. Browne served a notice of termination on the Landlord. I find that the Tribunal erred in law in coming to this conclusion.
[35] The “modern” approach to statutory interpretation requires us to read the Regulation’s words in their ordinary and grammatical sense, considered in their full context, the overall purpose of the Act, and the legislature’s intention. A construction that leads to an absurd result, unintended by the legislature, is to be avoided: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at paras. 21 and 27.
[36] The express wording of s. 3(2) of the Regulation requires the following for a spouse of a tenant to become a tenant:(a) That the tenant spouse vacate the unit without giving notice to terminate or entering into an agreement to terminate the tenancy under the Act; and
(b) That the unit be the principal residence of the tenant’s spouse. [37] Both of these conditions were satisfied in this case. Mr. Browne vacated the unit without giving notice to terminate or entering into an agreement to terminate the tenancy. A notice to terminate was not delivered until five months later. The unit was Ms. Browne’s principal residence. The parties were married and therefore, Ms. Browne was clearly a spouse. Thus, under the express wording of the Act, Ms. Browne became a tenant when Mr. Browne vacated the unit. While Mr. Browne subsequently filed a notice to terminate his tenancy, Ms. Browne never filed a notice to terminate hers.
[38] Subsection 3(2) of the Regulation is preceded by s. 3(1), which is designed to address another situation where a spouse of a tenant may need protection, namely if the tenant dies. Subsection 3(1) reads:If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act, unless the spouse vacates the unit within the 30-day prescribed period in subsection 91(1) of the Act. [39] Thus, s. 3 of the Regulation, taken in context, is designed to offer the spouses of tenants who occupy a rental unit that is their principal residence protection in the event that the tenant spouse is no longer around – either because they have died or because they have vacated the unit.
[40] If s. 3(2) is interpreted to mean that a vacating tenant can terminate their spouse’s tenancy after they have vacated the unit by serving a notice to terminate, the protection offered to the remaining spouse is undermined considerably. This case serves as a stark illustration of why. Ms. Browne, who is the victim of domestic violence and the mother of two children, is left in the position where she and her children can only remain in their home if they pay the landlord double the rent they were paying. Further, on this interpretation, a vacating tenant (who may or may not be hostile to their spouse) could serve a notice years after they vacated the premises and this notice could have the effect of terminating the remaining spouse’s tenancy.
[41] The fact that the landlord did not know that Mr. Browne had vacated the unit does not affect my interpretation of s. 3 of the Regulation. Neither s. 3(1) nor s. 3(2) requires the landlord’s knowledge for the spouse’s tenancy to become effective. This is consistent with the tenant protection focus of the Act, which the court has found mandates a broad interpretation of the word “tenant”.
[42] It is also clear that the drafters of the Regulation were aware of the fact that it could be difficult for some landlords. That is why these subsections, by the terms outlined in the Regulation, do not apply to a rental unit in a building containing three or fewer residential units where the landlord resides in the building: s. 3(3)1. There are also other rental units described in s. 3(4) that are exempted from these rules.
[43] The enumerated exceptions to ss. 3(2) of the Regulation indicate that the drafters of the Regulation did wish to offer landlords some protection from the application of the Regulation in certain specific circumstances. Two of those exceptions deal with circumstances where the tenant was in arrears of rent. Another exception is the one set out below:3. The tenant who vacated the rental unit was not in arrears of rent and the spouse fails to advise the landlord, before an order is issued under section 100 of the Act, that he or she intends to remain in the rental unit. [44] What these exceptions tell us is that the drafters of the Regulation wanted to ensure that landlords had some assurance that their rent would continue to be paid by the spouse who remained in the unit. If the rent was in arrears at the time the tenant vacated the unit, there is an obligation on the spouse to agree to pay the arrears and to advise the landlord that they intend to remain in the unit. If the rent is not in arrears then the spouse must advise the landlord that they intend to remain in the unit before the landlord obtains an order under s. 100 of the Act. Section 100 of the Act provides that “[i]f a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred.” In this case the landlord did not obtain an order under s. 100 of the Act; the ex parte eviction order was under s. 77 of the Act on the basis of a notice that did not operate to terminate Ms. Browne’s tenancy.
[45] The only prejudice the landlord has suffered by having Ms. Browne remain in the unit is the loss of the opportunity to double the rent that it receives for the unit. This is not the kind of prejudice that the drafters of the Regulation were concerned about alleviating. In fact, the purpose of the Regulation is to offer the remaining spouse the ability to remain in their home if that home was their principal residence and they are prepared to honour the rental obligations associated with that unit. Enabling a landlord to behave in a way that facilitates its ability to double the rent it receives for the unit would undermine that purpose. . Gorscak v. Jarzabek
In Gorscak v. Jarzabek (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, this brought against the termination of tenancy on grounds of RTA s.66 ['Termination for cause, act impairs safety'] in the context of a fire.
Here the court considered an LTB review (aka reconsideration) issue:[38] The Board’s Rules of Procedure made pursuant to s. 176 of the RTA and s. 25.1 of the SPPA implement the authority afforded by s. 21.2 of the SPPA for a tribunal to review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. An Order may be reviewed on the basis that the requesting party was not reasonably able to participate in the proceeding: RTA, s. 209(2). In addition, an Order may be reviewed if there was a “serious error”: See s. 26.8(e) of the Board’s Rules of Procedure. A “serious error” includes an error of jurisdiction (such as when the Board exceeds its authority), a procedural error, an unreasonable finding of fact on a material issue which would potentially change the result of the Order, new evidence which was unavailable at the time of the hearing and which is potentially determinative of a central issue, an error of law such as an order interpreting the RTA which is clearly wrong and unreasonable, an unreasonable exercise of discretion which results in an order outside the usual range of results: See Review of an Order - Interpretation Guideline 8 – December 15, 2018 – Tribunals Ontario – Landlord and Tenant Board.
[39] I find that the Review Member misstated the test for review of an Order. Nevertheless, I would not set aside the Review Order on that basis alone as there is no suggestion that any issues raised by the appellant would have been properly before the Review Member if the correct test for review had been applied. . 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 LTB 'reviews' (aka 'reconsiderations'):[35] A review will be dismissed unless the LTB is satisfied that the new evidence could not have been produced at the original hearing, is material to the issues in dispute and its consideration could change the result: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, page 775; Spirleanu v. Transglobe Property Management Service Ltd., 2015 ONCA 187 (CanLII), at para. 2. . Ashley Manor Housing Corporation v. Malcolm [no 2nd recon requests]
In Ashley Manor Housing Corporation v. Malcolm (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA appeal filing, this brought against an "appeal from a Review Order of the Landlord and Tenant Board ".
The court notes that the LTB Rules bar repeat review ('reconsideration') requests [Rules 26.18]:[7] The LTB’s power to review its own decisions is further detailed in Rule 26 of the LTB Rules of Procedure. Rule 26.18 makes clear that a party may request only one review of the same order. It provides:26.18 The LTB will not consider a further request to review the same order or to review the review order from the same requesting party. [8] A party to a LTB proceeding may appeal either from the original final decision of the LTB, or, if it seeks a review of that decision, from the Review Decision. Either way, the appeal must be brought within 30 days of the decision pursuant to s. 210(1) of the RTA. There is no right to review a review decision, and a party cannot extend the appeal period by seeking to review a review decision. In the present case, the Tenant’s request to review the LTB decision was dismissed on July 9, 2025, and the appeal period ended on August 9, 2025.
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[13] A motion for an extension of time to appeal may be brought as a motion in writing under Rule 37.12.1, particularly if the motion is not opposed.
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