Attempted to Secure or Enforce Legal Rights - Section 83 (3)(c)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-28
CLNP Page ID:	2075
Page Categories:	[Section 83 (RTA)]
Citation:	Attempted to Secure or Enforce Legal Rights - Section 83 (3)(c), CLNP 2075, <https://rvt.link/37>, retrieved on 2024-04-28
Editor:	Sharvey
Last Updated:	2023/02/01

Residential Tenancies Act, 2006, S.O. (S.83)

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.

(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).

(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.

TEL-91419-18 (Re), 2018 CanLII 113195 (ON LTB)

9. Lastly, the Tenant stated that the Landlord had told her the utilities were high and that factored into why he wished to move into the unit. The Tenant offered to take on the cost of the utilities for a reduced rent. The Tenant used to pay 75% of the utilities until February when the parties agreed that they would be inclusive. The Tenant said she would pay 100% of the utilities while she was the sole renter in the house. The Landlord declined this offer.

10. After the Tenant’s testimony the Landlord admitted that he would rather the Tenant leave because she continues to notify the Landlord of the issues in the residential complex. If the Tenant was not going to rent the whole house then she would have to leave. This statement gives cause for concern as it speaks directly to subsection 83(3)(c). The Tenant has the right to notify the Landlord of the issues she is having with other tenants.

11. If I am wrong, based on the Landlord’s own testimony and the uncontested testimony regarding the Landlord’s agent, I find the Landlord’s testimony to be unreliable. He claims he is genuine as he is having financial difficulty maintaining the house; however, he was not upfront with the fact that his sister actually pays him to live in the house where he currently resides and he failed to provide sufficient supporting evidence.

12. The Tenant’s testimony included dates and times of occurrences with the agent as well as detailed conversations she had with the agent. I am persuaded by her testimony and I do not believe the Landlord genuinely intends to move into the rental unit, but is using this Notice as a tool to evict the Tenant.

13. As a result, the Landlord’s application must be dismissed.

McLeod v Pyatt, 2021 CanLII 139827 (ON LTB)

12. In Yundt v. Parker, 2014 ONSC 1805 (CanLII) the Divisional Court found that para 83(3)(c) was applicable where raising the rent was a landlord’s ‘Plan A’ and terminating the tenancy was ‘Plan B’. In Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII), the Divisional Court found that the Board properly dismissed an application brought pursuant to section 48 of the Act based on para 83(3)(c) where there was evidence that if the tenant had agreed to an illegal rent increase she would have been allowed to continue to occupy the rental unit. [See also Yundt v. Parker, 2014 ONSC 1805 (CanLII), para 23]

13. I am satisfied on the balance of the probabilities that the Landlord delivered the N12 and commenced this application because the Tenant attempted to enforce her legal rights in the sense that she refused to agree to an illegal rent increase. In my view, the text exchanges with the property manager leave little doubt that if the Tenant had agreed to pay increased rent of $1,200.00, the N12 would not have been served and this application would not have been filed. It is my finding that whatever the intent was prior to the Landlord purchasing the rental unit, the N12 upon which this application is based was the direct result of the fact that the Tenant would not agree to pay increased rent to allow the Landlord to finance the purchase of the rental; unit from her in-laws. The Landlord admits that the Tenant was approached in an effort to increase the rent ‘to reflect the realities of the housing market’ and the cost of carrying the debt incurred to purchase the rental unit.

14. The Landlord asserts that at no time was a notice of rent increase delivered to the Tenant and at no time did the Landlord arbitrarily raise the rent.

15. The fact that no notice of rent increase was delivered and that the Landlord did not purport to unilaterally increase the rent is not particularly relevant for the purposes of my analysis under para 83(3)(c). Based on Loc Le v. O’Grady and Yundt v. Parker, the question that I am required to ask is whether, had she agreed to the rent increase demanded by the Landlord, the Tenant would have been allowed to continue to occupy the rental unit. As noted above, I have found the answer to that question to be yes.

16. The Landlord asserts that there was only an ‘appearance of impropriety’ and that there was no malice intended.

17. Whether or not there was impropriety or malice is, in my view, not particularly relevant for the purposes of para 83(3)(c). Based on the test developed by the Divisional Court in Loc Le v. O’Grady and Yundt v. Parker, once I determined that the reason this application was brought is that the Tenant has attempted to secure or enforce her legal rights—i.e. the Tenant would have been able to continue to occupy the rental unit had she agreed to pay the $1,200.00—I am required to dismiss the Landlord’s application. [See Yundt v. Parker, 2014 ONSC 1805 (CanLII), para 24 and 25]