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RTA - Tenant Applications [s.31]

. Medallion Corporation v. McIlroy

In Medallion Corporation v. McIlroy (Div Court, 2023) the Divisional Court considered (and supported) a progressive RTA LTB case where a tenant applied (successfully) to the LTB, alleging that the LL was responsible for "interference with his reasonable enjoyment" [RTA 22] when a neighbour tenant's autistic child created noise. The case did not apparently include the parents of the child as parties, and the issue was an HRC-type burden on the LL to accomodate (essentially both) tenants with noise-proofing and other ameliorating renovations:
[2] The Order arose from the Tenant’s application alleging interference with his reasonable enjoyment of his rental unit due to noise from the adjacent unit. The Member determined that the noise was caused by a child with autism who lived next door. The Landlord had sent notices to the neighbouring tenant in response to the complaints, but the issue persisted.

[3] The Member cited this Court, setting out the Landlord’s obligation to take reasonably necessary action against a neighbouring tenant who denies a neighbour quiet enjoyment: Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (Div. Ct.). This obligation is not disputed.

[4] The Member found that the only action the Landlord had taken regarding the noise complaints was sending notices to the neighbour, and that the Landlord had decided to do nothing else. The Member found that the Landlord did not investigate other noise suppression techniques such as retaining a contractor to adjust the insulation between the two units. The Member said, “I can certainly appreciate the situation the Landlord is faced with” but found that the Landlord had substantially interfered with the Tenant’s reasonable enjoyment of his rental unit.

[5] The Member awarded a rent abatement of $7,419.60 and directed the Landlord to hire a contractor to ascertain whether soundproofing could be installed to reduce the noise. The Member declined to order the Landlord to cease the noise, finding that would be unreasonable and unenforceable.

[6] This appeal is limited to questions of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), s. 210. The standard of review is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.

[7] The Landlord submits that the Member erred in law by failing to take into account s. 3(4) of the RTA, which confirms that the RTA is subject to the Human Rights Code. More specifically, the Landlord submits that the Member failed to analyze the significance of the child’s disability under the Human Rights Code and the resulting limitations on the Landlord’s ability to address the noise complaints. The Landlord submits that it could not evict the neighbour and child under the Human Rights Code and there was nothing more that could be done.

[8] The first difficulty with this submission is that it is being raised for the first time on this appeal, which is not normally permitted. The second difficulty is that it is based on the assumption that there was nothing more that the Landlord could do given the child’s disability short of an impermissible eviction. This overlooks the basis for the Order. The Member found that there were more steps that the Landlord could have taken regarding soundproofing, specifically having a contractor adjust the insulation.

[9] The Landlord submits that the Member erred in law because the reasons for decision do not contain an express analysis of the obligations to the child under the Human Rights Code. However, the reasons for decision do reflect an awareness of and need to consider the disability and the Member did not make an order that would potentially discriminate against the child.

[10] The Landlord further submits that the Member failed to take into account the real substance and the good faith of the Tenant’s complaints, as required by s. 202 of the RTA. However, the Landlord has not shown a legal error in the Member’s consideration of the real substance of the noise complaints and it does not appear that good faith was challenged before the Board.

[11] Despite the able argument of counsel, the Landlord has not established an error of law. ...
. White v. Upper Thames River Conservation Authority

In White v. Upper Thames River Conservation Authority (Ont CA, 2022) the Court of Appeal considered a land lease case, appealed from the LBT and through the Divisional Court. The original issue was the application of the RTA to the lots given that the lease called for seasonal periods of non-occupancy, a provision that had been waived extensively in practice. At the CA it was agreed that the RTA applied, and the only issue was the legality of the non-occupancy period provisions (the court held against their legality). An earlier (LTB) issue of substantial enjoyment was held to be unnecessary for the tenant's to succeed:
The right to reasonable enjoyment

[28] Section 22 of the Act provides as follows:
A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.
[29] The Act does not define either the concept of reasonable enjoyment or substantial interference with it. These are vague terms that must be fleshed out by Board decisions in particular contexts, and a large body of Board case law has developed in this regard. In this case, the Board stated that the restriction of tenants’ access to rental units would be a “substantial interference with the reasonable enjoyment of the rental units”. The Divisional Court disagreed, stating as follows:
A reading of the ordinary sense of s. 22 of the Act does not lead to a determination that Upper Thames substantially interfered with the reasonable enjoyment of the Tenants’ rental units when these Tenants voluntarily agreed to the provision in the lease. To be clear, s. 22 of the Act cannot be read as to indicate that any limitation to access to a rental unit during certain periods of time, agreed upon by both landlord and tenant, equates to a substantial interference by the landlord with the reasonable enjoyment of the rental units. To find otherwise would be to unnecessarily limit the ability of landlords and tenants to enter into flexible arrangements regarding the leasing of premises.
[30] As I have explained, it was unnecessary for the Board to rely on s. 22. For its part, the Divisional Court erred by assuming occupancy limitations to be proper by virtue of the absence of a specific prohibition in the Act and tenants’ agreement to include them in their leases. This led the court to conclude that s. 22 was at the heart of the appeal, and it had to be interpreted in accordance with the parties’ freedom of contract.

[31] The outcome in this case does not depend on the tenants’ right of reasonable enjoyment. The occupancy limitation in the leases is void because it is inconsistent with the Act as a whole and the nature of the tenancies it establishes and protects.
. 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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Last modified: 23-09-23
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