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. Draxl v. Truevine

In Draxl v. Truevine (Div Court, 2022) the Divisional Court dismissed a RTA appeal motion to quash advanced on the argument that the tenant only appealed to take advantage of the automatic stay on appeal:
[19] I move then to the abuse of process submission, based on the failure to promptly pay rent and also to meet the obligation to pay arrears as set out in the directions given at the above case conference.

[20] Unlike some cases we see where an appeal appears to have been brought solely for the purpose of extending the time before the eviction takes place, in this case the tenant has taken steps that suggest that was not the sole purpose of her appeal. Those steps are her partial payment of rent and her steps taken to fully complete her appeal materials. I am therefore not persuaded on the record before me that the appeal was commenced solely for the purpose of delaying the eviction order.
. Carr v. Brown

In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but excluding the tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting the tenant's to cross-examine on direct examination that they had been excluded from hearing [para 32].

The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals. The entire case is an example of how far administrative law has generally degraded justice in Ontario.

. Zeta Psi Elders Association of Toronto v. Kavanaugh

In Zeta Psi Elders Association of Toronto v. Kavanaugh (Div Court, 2022) the Divisional Court endorsed the 'predominant purpose' test for RTA 5(j) 'Joint Business/Residential Accomodation' exception to the application of the RTA:
[1] Sean Kavanaugh appeals the decision of the Landlord and Tenant Board dated September 23, 2021 holding that the Residential Tenancies Act, 2006, S.O. 2006, c.17 did not apply to his tenancy because of the exemption in s. 5(j) of the Act. That section provides that the Act does not apply with respect to “premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation”.

[2] The Board found that the predominant purpose of the tenancy between the parties was to operate a business - namely, an Airbnb short-term rental business - in the residential premises. Therefore, the Board held that the exemption in s. 5(j) of the Act applied.

[3] An appeal lies to this Court only on a question of law (see s. 210(1) of the Act).

[4] The appellant has not demonstrated any error of law. The Board applied the predominant purpose test, which is the correct legal test (see Tauro v. Yu, 2018 ONSC 7319 (S.C.J.) at para. 33). Essentially the appellant challenges the findings of fact that the predominant use of the premises was for an Airbnb business and the Airbnb business was the appellant’s only source of income.
. McKnight v. Kirk

In McKnight v. Kirk (Div Court, 2022) the Divisional Court considered RTA 5(i) which exempts owner-shared accomodation from the RTA:
Did the Member Err in Interpreting Section 5(i) by Failing to Consider that the Premises was Co-Owned by the Landlord’s Mother?

[32] The Tenant submitted that the exemption did not apply because the Landlord co-owned the property with her mother, Mary Louise Kirk, and that J. was thus not a “spouse, child or parent” of the owner, as required under s. 5(i).

[33] The Member considered the use of the term “owner” in s. 5(i) and the absence of a definition of “owner” in the RTA. The Member found that “landlord” under the RTA is defined more broadly than an owner. The Member adopted a contextual and purposive interpretation of the provision to find that interpreting the term “owner” to apply only to a sole owner would defeat the purpose of the exemption, which was to allow a balance between the rights of a tenant with the rights of an owner or their family members who live in the rental premises.

[34] In this case, the Member found on the evidence that the Landlord’s mother was in effect a guarantor and had no other involvement with the property, which was managed entirely by the Landlord.

[35] The Member did not err in her interpretation of “owner” under s. 5(i) of the RTA. To the contrary, to find that the exemption does not apply because the “child” at issue is the child of one co-owner and not the other co-owner, who is also a family member, would be an overly technical and narrow interpretation of the provision. This is especially so when the other co-owner is an owner in name only, as was the case here.
. Bailey v. Capreit Limited Partnership

In Bailey v. Capreit Limited Partnership (Div Court, 2022) the Divisional Court heard a simple LTB appeal of a public housing tenant which the landlord did not oppose, and the court granted as a new LTB hearing. The appellant-tenant wanted the matter resolved to 'clear his name' but the court said that, as RTA s.210 only allowed appeals on 'questions of law', it could only order a new LTB hearing. It specified said that:
[8] Justice Lederer explained to Mr. Bailey that the Divisional Court can only hear appeals from the Landlord and Tenant Board that deal with questions of law: Residential Tenancies Act, 2006, S.O. 2006, c.17, s. 210. Justice Lederer explained that the Court cannot reconsider factual findings made by the Board or substitute its decision for the Board on factual matters. Justice Lederer explained that all the Court can do is decide whether a legal error was made at the hearing before the Board. If an error was made by the Board, all this Court can do is order that the Board conduct a new hearing. Justice Lederer explained to Mr. Bailey that he can put the evidence he has before the Board at his new hearing and can make arguments at the new hearing about the authenticity and veracity of the landlord’s evidence.
RTA appeal remedies turn on RTA 210(4-5) [and conceivably CJA 134 which is not considered here], which reads:
RTA s.210(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Board with the opinion of the Divisional Court.

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
My concern is that the court has conflated the grounds of appeal - which they seemed to disregard analysis of, treating the landlord's position as a essentially a consent to grant, and the remedies - which, if you're going to consent to the appeal - should sensibly allow for a full rescission of the LTB order below, not just a re-hearing order. The court makes no mention of RTA 210(4) or (5) - and 210(5) seems tailor-made for the situation.

Am I missing something? Was the court acceding to the appellant's insistent of 'clearing his name' to extent of him risking the outcome of a new LTB hearing? If so, did the self-repper appellant realize this risk?

. Lacroix v. Central-McKinlay International Ltd.

In Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022) the Divisional Court affirmed that RTA s.210's limitation on appeals includes procedural fairness issues, and that procedural fairness is assessed on an objective standard:
[9] This court has jurisdiction over this appeal by virtue of s.210 of the Residential Tenancies Act, 2006, SO 2006, c.17, which provides for an appeal to this court from an LTB order solely on a question of law. Procedural unfairness is considered a question of law for the purposes of s.210.

[10] The standard of review for questions of procedural fairness is “fairness”, sometimes understood as “correctness”. The court determines whether fairness has been accorded to the appellant based on the events as they unfolded, basic principles of fairness as developed in the jurisprudence, and the tribunal’s own rules and procedures: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817; Peel Housing Cooperative o/a Peel Living v. Sharpe, 2017 ONSC 6303, per F.B. Fitzpatrick J. (Div. Ct.).

Fresh Evidence

[11] The tenant seeks to adduce as fresh evidence an affidavit setting out his internal thought processes at the hearing. We would not admit this fresh evidence for three reasons:
(a) the proposed fresh evidence does not shed light on events at the hearing in a manner bearing on procedural fairness.

(b) the tenant’s internal thought processes are not relevant to an issue before this court. Procedural fairness is assessed on an objective standard. ...




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