Legal Test (Illegal Act)(RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1508
Page Categories:	[Illegal Act & Impairment of Safety (LTB)]
Citation:	Legal Test (Illegal Act)(RTA), CLNP 1508, <https://rvt.link/a2>, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2023/11/28

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SOL-26261-12, RVGP 296 (ONLTB)

18. In order to make a finding that a tenant has seriously impaired the safety of another person, the Board must consider what is meant by an act or omission that seriously impairs or has seriously impaired the safety of another person.

19. The term seriously can be defined as important, weighty, momentous, grave or great. The term safety may be defined as free from harm. When read together, this suggests that the outcome or potential outcome of the activity being performed, or not being performed, have a substantial negative effect on another person's well-being or have the risk of same.

20. In making a determination of impaired safety, the Act does not require any person to have been hurt or injured as a result of the act or omission. It is sufficient that it is foreseeable that the act or omission could have resulted in, or may result in a serious impairment to safety.

21. For eviction under section 66(1) to be granted by the Board, there must be some actual impairment of safety. Mere fear of impairment of safety or the potential for future impairment of safety is not sufficient.

22. The section is quite clear in stating "seriously impairs or has seriously impaired". As can be noted, the present and past tenses are used. The future tense is omitted. As well, the impairment of safety must be serious. That means the application of the term impaired safety is intended for the most serious of situations.

23. The Ontario Rental Housing Tribunal held in Toronoto Community Housing Corp v. Cousins [2004] O.R.H.T.D. No. 10 (O.R.H.T) that to succeed on this ground the landlord must prove that the safety of someone in the residential complex was impaired by the conduct. This means conduct which might possibly impair safety or has the potential to impair safety is insufficient.

Application of the law to the facts before the Board:

Alleged illegal act and impairment of safety committed on March 29, 2012:

...

33. CWM who was the Landlord's main witness testified that he (himself) did not witness AG's threats but heard from the staff that AG had threatened to kill them.

34. As stated above, the charge of impaired safety or illegal act and especially of threats to kill is a serious one and the Landlord should have called witnesses who had witnessed the threats. They cannot rely on hearsay to prove the alleged threats to kill. In addition, the Landlord has to provide proof that AG intended to act upon the threats. (per TSL-67926 [2005] O.R.H.T.D. No. 88 (O.R.H.T)

35. The Police Incident Report on which the Landlord seeks to rely to support their claim of illegal act and impaired safety states that when police arrived at the residential complex they found CWM (the Landlord's main witness) in a verbal confrontation with a different tenant. The report states that police tried to find out the nature of the confrontation from the tenant but CWM blocked the other tenant from speaking to the police. The police report notes that CWM was "quite confrontational". This entry in the police report suggests to me that CWM may have been in an agitated state and therefore could have misapprehended whatever had been going on between the staff and AG.

36. The police report also says that the Operations Manager, AL, who CWM had claimed would back his claim that AG had threatened to kill staff, did not mention any death threats allegedly made by AG. The report states that AL told police that "although there was a lot of swearing there were no threats ..." AL had also (according to the police report) informed the police that "CWM and AG were in a verbal dispute but that the dispute did not go any further" (emphasis added by me).

37. The police report concludes that the conduct complained of by the Landlord was "non criminal".

38. On the basis of the evidence before me, I am not satisfied that AG committed an illegal act and or seriously impaired the safety of other persons in the residential complex. The police report states that the conduct complained of by the Landlord was "non-criminal". Meanwhile no evidence was provided that AG intended to act on any alleged verbal threats to kill he may have made to the Landlord's staff.

Musse v. 6965083 Canada Inc., 2021 ONSC 1085 (CanLII)

[23] In my view, the test under s. 61(1) is relatively straightforward.It requires the landlord to establish either that the tenant, or other occupant, committed an illegal act at the residential complex. In the alternative, that the tenant or other occupant permitted an invited guest to commit an illegal act.

[24] The act in issue is an assault. An assault is an intentional application of force, without consent and where the person applying the force knows that the person against whom force is applied is not consenting. Whoever spit in the face of the superintendent undoubtedly committed an assault.

[25] In this instance the Member was unable to conclude who spit at the superintendent. The upshot of that inability was to narrow the availability of s. 61(1) as a path to eviction. In particular, since the Member could not say that the appellant or her mother (the other occupant) committed an illegal act, the only other means of satisfying the test under s. 61(1) was for the Member to conclude that the appellant, or her mother, permitted another person to commit an illegal act on the premises.

[26] Permission, like consent, involves a state of mind. It is the voluntary agreement that something occur. It involves knowledge of what is going to happen and a voluntary agreement that it be done. A finding of permission did not inexorably flow from the mere fact of the appellant’s presence at the altercation. A finding of permission required at least some evidence upon which it could have been inferred that the appellant knew someone else was going to spit on the superintendent and that she voluntarily agreed that it be done. That evidence is absent in this record.

[27] The Member, in my view, clearly did not turn her mind to the element of permission. This is not a case where she simply failed to or chose not to advert to it. Her suggestion that it is immaterial who spat at the superintendent demonstrates that the Member misunderstood the permission element. She undoubtedly failed to analyse and apply it. This was an error of law, not a factual error or an error of mixed fact and law.

[28] In the result, the Member’s conclusions under s. 61(1) are tainted by error and cannot stand.