Serious Breach - Section 83 (3)(a)

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Date Retrieved:	2024-11-22
CLNP Page ID:	2072
Page Categories:	[Section 83 (RTA)]
Citation:	Serious Breach - Section 83 (3)(a), CLNP 2072, <https://rvt.link/39>, retrieved on 2024-11-22
Editor:	Rstojni
Last Updated:	2023/09/05

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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.

Reisher v. Westdale Properties, 2023 ONSC 1817 (CanLII)

[38] This leaves the question of whether the Board erred in law in not exercising its discretion to refuse to order the eviction of Jeanette Reisher. The Notice of Appeal refers to and the submissions made relied on s. 83 of the Residential Tenancies Act. Subsections (1) and (2) state:

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).

[39] In this case the Decision being appealed refers to relief from eviction being sought under s. 78(11)(b):

78 (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,

.......

(b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6)

[40] Subsection 78(6) states:

If the Board finds that the landlord is entitled to an order under subsection (1), the Board may make an order terminating the tenancy and evicting the tenant.

[41] The thrust of the two sections is the same. An order for eviction will be set aside unless it is unfair to do so; the determination of which requires that regard be had to “all the circumstances”.

[42] The submissions made on behalf of Jeanette Reisher suggest that the Board’s reasons are to identify, outline and consider all of the circumstances that bear on any decision made as directed by s. 83 of the Residential Tenancies Act. I point out there is a difference between “having regard to” and outlining and reviewing each circumstance in reasons for decision. Be that as it may, this a place where the understanding that we cannot hold tribunals like the Landlord and Tenant Board to the same standard as the court and where the need to bear in mind the status and role the Landlord and Tenant Board are relevant and important considerations. In this case the Landlord and Tenant Board was aware that Jeanette Reisher suffers from mental health issues, that she continues to interfere with the reasonable enjoyment of other tenants, that she continues to call them rapists, yells at them, threatens them, and bangs on their door in the middle of the night and that there was no reasonable expectation that her behaviour towards the other patients would change. The Board referred to and understood that there had already been a Consent Order granting relief from eviction, on agreed terms but the difficulties with her behaviour continued.[35]

[43] The relevant circumstances leading to an order that, pursuant to s. 83(1)(b) of the Residential Tenancies Act (or s. 78(11)(b)), it would not be unfair to provide Jeanette Reisher with additional time to find alternative accommodation and support. The member exercised his discretion to postpone the eviction under s. 83, but did not refuse to grant it bearing in mind all the circumstances including those arising from the impact on the other tenants and Westdale Properties.

[44] Ultimately, this was a discretionary order dealing with the remedy to be applied in circumstances where there has been a breach such that an eviction is justified. As such the decision is owed deference:

In this case, as was found in the Second Review Order, the Board considered all of the disclosed circumstances and whether to grant relief from eviction and ultimately found that it would be unfair to do so, but did find that it was appropriate to delay eviction. The Board’s exercise of discretion in this regard, absent an error in principle, is entitled to deference from this Court.[36]

EAL-26988-12 (Re), 2012 CanLII 86721 (ON LTB)

11. The Tenant (SD) argued that the Board should refuse the Landlord’s application pursuant to section 83(3)(a) of the Act because the Landlord is in serious breach of the Landlord’s responsibilities with respect to the ongoing mould problem.

12. The Landlord’s Legal Representative argued that there can be a serious maintenance problem without the Landlord being in serious breach of his responsibilities. The Landlord’s Legal Representative referred to the Court’s decisions in Lypny v. Roca (No. 2), 1988 CanLII 4730 (ON SC), [1988] O.J. No. 60, 63O.R. (2d) 595 (Ont. Div. Ct.) and Puterbough v. Canada (public Works and Government Services), [2007] O.J. No. 748(Ont. Div. Ct.) in support of his argument.

13. In the Puterbough decision the Court considered section 84(2)(a) of the Tenant Protection Act, 1997 which mirrors section 83(3)(a) of the the Residential Tenancies Act, 2006. In paragraph 20 of this decision the Court states “Section 84(2)(a) should be interpreted as part of this effort to ensure that the landlords cannot thwart the legitimate rights of tenants through seeking eviction orders. Read in context, the goal of s. 84(2)(a) is to ensure that landlords cannot resort to the eviction of tenants as a method of abdicating or sidestepping their mandated responsibilities under the Act" The Court went on to say in paragraph 21 “To accept the Tenant’s argument that all breaches of the Landlord’s responsibilities that raise health and safety concerns trigger s. 84(2)(a) would render meaningless the word ‘serious in that subsection”…In paragraph 22, the Court states: “In short, a serious breach of the landlord’s responsibilities is not established simply by the rental premises being in need of extensive repairs”. The Court refers to the Lypny decision in support of this last statement. In paragraph 8 of the Lypny decision the Court states: “The purpose of terminating the tenancy was to comply with the municipal order in the only way it was possible for the Landlord to do. There is no issue here as to her good faith. While s. 121(3)(a) [now s. 83(3)(a)] is mandatory, a Landlord who seeks possession which is essential to comply with s. 96 [now s.20] and thereby cure a breach is not, in my opinion, in breach of her responsibilities under the Act”.

Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII)

[18] The Board found as fact that the application was brought by the Landlord because the Tenants attempted to enforce their legal rights. Specifically, the Board found that the Tenants had refused to agree to a rental increase beyond that to which the Landlord was lawfully entitled, and this is ultimately why the application was brought by the Landlord.

[19] Once that factual determination was made by the Board it was obliged to refuse the application. It had no discretion to do otherwise. What the Landlord really objects to is the Board’s finding of fact, from which no appeal lies.

[20] Even if we were persuaded that this ground of appeal is properly before us, we are not convinced there was any error. The inferences to be drawn from the evidence are practically irrefutable. If the Tenants had agreed to the Landlord’s unlawful demands they would have been allowed to continue to occupy the premises. Because they did not, the Landlord determined he would evict the tenants and move into the property himself. The precipitating event was not the Landlord’s desire to occupy the premises himself. It was the Tenants’ refusal to accede to his unlawful demand. Counsel argued that many facts pertinent to the Landlord were not considered by the Board. We disagree. The Board indicated that its decision was based on consideration of the facts before it. Indeed most, if not all, of the facts referred to as missing from the Board’s analysis must have been considered by it in reaching the conclusion that the Landlord held a good faith intention to move into the premises.

SWL-03462-09 (Re), 2009 CanLII 84377 (ON LTB)

2. The Tenant has not paid the rent owed for September, October or November 2009. No rent was paid to the Landlord since the application was filed.

3. The Tenant owes $2,570.00 in arrears of rent and costs for the period ending November 30, 2009.

4. I have considered all of the disclosed circumstances as required under subsection 83(2) of the Residential Tenancies Act, 2006 (the ‘Act’) and find that, as the Landlord was in serious breach of his statutory obligations at the time this application was heard, eviction must be refused pursuant to subsection 83(3)(a) of the Act.

5. The Landlord has deliberately interfered with the supply of gas and electricity to the rental unit. This was contrary to the Act.

6. The Ministry of Municipal Affairs and Housing’s Investigations and Enforcement Unit had already informed the Landlord that such actions were illegal when it directed him to have gas service to the unit restored just two weeks before he had the electricity to the unit cut off in the same manner.

7. As eviction could not be ordered under this application, arrears of rent could only be ordered up to the end of the month in which the application was heard. The Landlord is also entitled to recover is application filing fee.

CEL-64717-17 (Re), 2017 CanLII 28615 (ON LTB)

21. Subsection 83(3) of the Act states in part: “[Without] restricting the generality of subsection 83(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” [emphasis added].

22. The photographs of the fallen concrete pieces submitted by the Tenant are indicative of a serious breach of the Landlord’s responsibilities pursuant to section 20 of the Act. I note that on January 22nd a piece of concrete that could cause injury to a person fell on his couch. While the chunks of concrete appear smaller on February 26th, in my view they present a safety risk. I find that this issue, which the Landlord has known about since February 26th and has failed to take steps to repair is a health or safety concern for the Tenant and does not represent a good state of repair.

23. Therefore, pursuant to subsection 83(3) of the Act, as the Landlord is in serious breach of the Landlord’s responsibilities under the Act, eviction must be refused. The L1 application is converted to an L9 application which permits an order for arrears of rent only. The L2 application must be dismissed.

SOL-34561-13 RV (Re), 2014 CanLII 23584 (ON LTB)

18. I shall now turn to clause (a) and my opinion as to whether this clause provides mandatory relief from forfeiture for the Tenant on the facts as I found earlier in this case. In short I do not find that clause (a) applies.

19. The word “serious” is not defined in subsection 83 (3) nor in any other part of the RTA. However the word “serious” does appear in several other sections of the RTA, namely: section 17 which codifies the common law principle of covenants interdependent, section 30 as it relates to serious breaches of maintenance, subsection 66 (1) (a) in an application for termination based on serious impairment of safety, subsection 76 (1) (b) in an application for termination based the presence of a pet that has caused a serious allergic reaction to the Landlord or another tenant, subsection 117 (3) and (4) as it relates to the Board’s jurisdiction to refuse a rent increase in the case of serious breaches of maintenance, and in subsections 126 (12) and (13) in a Landlord’s application for an above guideline increase where serious breaches of maintenance have been raised. In all of these instances, there is no statutory test for applying the term “serious.”

20. In paragraph 76 of subsection 241 (1) in Part of XVII of the RTA, headed Regulations, it states that the Lieutenant Governor in Council may make regulations, defining “serious” as it is used in any provision of this Act and defining it differently for different provisions. As of the date of this Order, and my amended order dated May 24, 2013, no such regulation has been made under Reg. 516/06 defining “serious”. Accordingly, the Legislature has not defined the word “serious”.

21. Furthermore, I am not satisfied the word “substantial” and the word “serious” are used interchangeably in the RTA. In subsection 29 (3) of the RTA, a tenant or a former tenant may apply to the Board for an order determining that the landlord, superintendent, or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her house. Clearly, the test for interference with reasonable enjoyment is based on the word “substantial.” Had the Legislature intended the test for interference be “serious” they would have used the word “serious” as articulated in the many other provisions of the RTA (See paragraph 19) I am applying the same logic to subsection 83 (3) of the RTA. The legislature did not intend that a “substantial” breach is equivalent to a “serious” breach within the meaning of subsection 83 (3) of the RTA.

22. For the purpose of this Order, I have turned to the definition of “serious” as defined in Black’s Law Dictionary (5th ed), TSL-24120-12 and the leading case of the Divisional Court in Puterbough v. Canada (Public Works and Government Services) [2005] O.J. No 5727 [hereinafter Puterbough].

23. “Serious”, in Black’s Law Dictionary is defined as “important, weighty, momentous, grave and great.

24. The Tenant relies on Board Order TSL-24120-12 2012 Canlii 21575 (ON LTB) issued February 16, 2012. In that case the Board determined that the word “serious” in section 83 of the RTA should be interpreted to mean substantial and ongoing and not merely minor, trivial or of passing concern. The Board determined, based on the evidence before it, that although none of the breaches of maintenance, if taken alone, would likely reach the level of “serious”, the totality of the Landlords conduct and the severity of the breaches was such that, the Landlords were in serious breach of their obligations under the RTA.

25. Although I am not bound by the Board’s decision in Order TSL-24120-12, the following are my reasons for distinguishing the facts in this case from those found in Order TSL-24120-12. In TSL-24120-12 the Landlords brought three applications to terminate the tenancy. The first application, based on Landlord’s own use, was dismissed because the Landlords had at no time ever intended to occupy the Tenants’ unit for residential purposes. The second application for termination based on wilful damage was also dismissed because the Landlords had no evidence to support any type of finding that the Tenants had caused any damage to the rental unit. The Landlords successfully proved that the Tenants were in arrears but the Board abated some arrears based on the Tenants’ application under section 82 of the RTA. The Tenants successfully proved that the Landlords had failed to do multiple repairs, had entered their rental unit illegally, and spit on them or at them during the course of the tenancy. The Board also reflected on the violent mannerisms and the blanket denials of the Landlords during the course of the proceedings which she observed first hand.

26. In paragraph 26 of reasons Order TSL-24120-12, the Board finds that the totality of the conduct of the Landlords as reflected in the number and severity of the breaches is such that it would be accurate to say that overall the Landlords are in serious breach of their obligations under the Act. The Landlords in Order TSL-2412-12 brought two applications without grounds or any evidence, they behaved in a violent manner at the hearings, they failed to address maintenance issues spit at the Tenants and entered their unit illegally without explanation. Had the same facts been before me, I too could find that the totality of the Landlords conduct reached the level of serious breach. Illegal entries, and spitting at the Tenants alone, point to a level of grave misconduct. The fact that the Landlords could not control themselves at the hearing was clearly in the Member’s mind when she evaluated the evidence of how the Landlords’ interference affected the Tenants reasonable enjoyment.

27. As is set out in my original Order, I am satisfied the Tenant met the burden of proof to meet the test of “substantial” interference in subsection 29 (3) of the RTA. The Tenant’s concerns were valid. They were real and substantial, but unlike Order TSL-24120-12 the facts here are distinguishable. The Landlord’s failure to address the Tenant’s maintenance issues and the Landlord’s incompetence with the electronic payment arrangement were irritating but the evidence did not persuade me that the breaches were grave. Again, I was persuaded that her behaviour substantially interfered with the Tenant but I was not persuaded that the totality of the Landlord’s breaches and her conduct in the case before me reached the level of “serious” breach. I do not find her behaviour gravely or momentously interfered with the Tenant’s enjoyment. She did not behave in a violent manner nor was she entering the unit illegally thereby breaching the Tenant’s privacy. She was not behaving in a violent out of control manner which was the case in Order TSL-24120-12. Instead, the correspondence between the parties is that the Tenant wanted work done and he was ignored. Alternatively the Landlord refused to do the work because she did not believe it necessary. This is factually very different then a landlord entering the unit illegally or spitting at the Tenant in a violent manner.

28. In the Puterborough case, the Court interpreted serious breach in respect of a Landlord’s statutory duty to repair and maintain the rental unit. At paragraph 22, the Court stated that “serious breach”, in the context of the Landlord’s maintenance responsibilities:

i. Means more than the rental premises being in poor condition and in need of significant work… In short, a serious breach of the landlord’s responsibilities is not established simply by the rental premise being in need of extensive repairs.

29. Older homes, like cars, routinely need maintenance. It is quite possible this home will always present some form of maintenance issue that requires attention. Consistent with the Court’s decision in Puterbough, serious breaches of maintenance have to include more than just the need for “extensive’ repairs resulting from poor conditions requiring “significant work”. As of the date of hearing, I was not persuaded by two of the Tenant’s alleged remaining maintenance concerns. The Tenant complained about mould but this was not borne out by the documentary evidence of the municipal bylaw officer. Mould was, not only, not visible on the day of the inspection but even if it was visible, the area is identified as a crawlspace. The crawlspace is not considered habitable space. I understood, as of the date of the second hearing that the electrical issues raised by the Tenant had been addressed by the Landlord. While the gate was still broken, there was no evidence that repairs required were extensive or required significant work. Quite the contrary, this Tenant not only wanted to stay in the rental unit, at the time of the hearing, he wanted to buy it.

30. I appreciate that the Tenant believes the rental unit is in need of repairs but having regard to the Court’s decision in Puterbough, I do not find that repairs he completed or that he complained of rise to the level of “serious breach” of maintenance because it is not enough that to establish that the rental premise is in need of repairs.

TEL-06503-19 (Re), 2020 CanLII 61284 (ON LTB)

45. Paragraph 83(3)(a) indicates the breach must be “serious” for the mandatory relief from eviction provisions to apply. The Act does not define the term “serious”. However, I am of the view that the word “serious” in section 83 should be interpreted to mean substantial and on-going and not merely minor, trivial or of passing concern.

46. It is confirmed by both parties that the electricity, water and heat remain disconnected as of the date of the hearing

47. Based on the evidence before me I find that the lack of electricity, water and heat rises to the level of “serious” in accordance with subsection 83(3)(a) of the Act. As a result, I find that the Landlord is not entitled to an order for eviction pursuant to paragraph 83(3)(a) of the Act and the Landlord’s application must be dismissed.

48. I also note that the Tenants filed their own application with respect to this issue and an order with a rent abatement was issued on May 15, 2019 (TET-01657-19).

TNL-62386-14 (Re), 2014 CanLII 76725 (ON LTB)

11. Subsection 83(3) of the Act requires the Board to deny an eviction application where a landlord is in serious breach of his or her duties under the Act or the tenancy agreement. In Puterbough v. Canada (Public Works and Government Services), [2007] O.J. No. 748 (Div. Ct.) (‘Puterbough’), the Divisional Court considered an identical provision in the Tenant Protection Act, 1997, the current Act’s predecessor legislation. The Divisional Court determined that not all breaches meet the level of a “serious breach”.

12. In Puterbough, despite evidence of extensive disrepair to the rental properties in question, including evidence that properties would have to be demolished, the Divisional Court determined that the landlord was not in “serious” breach of its maintenance obligations.

13. Based on the Tenant’s evidence, I conclude that, although the Landlord is in breach of her maintenance obligations, the breach is not “serious”. For example, even though the Landlord refuses to maintain the rental unit’s septic system, the Tenant is nevertheless able to use the bathroom for all normal purposes. The Tenant also testified that he is able to use the rental unit’s kitchen facilities and bedroom for their intended purposes. I therefore conclude that the Landlord’s breaches of her duties under the Act or the tenancy agreement, are not serious, and conclude that it would be inappropriate to deny the Landlord’s eviction application pursuant to subsection 83(3) of the Act.

TSL-79855-16-RV (Re), 2017 CanLII 31017 (ON LTB)

6. The real question before me at the review hearing was whether there were any circumstances before the Member pursuant to subsection 83(3) of the Act where eviction should have been refused, where “the landlord is in serious breach of the landlord’s responsibilities under the Act or any material covenant in the tenancy agreement.” The Tenant was therefore asked at the review hearing to list those issues that were before the Member to determine whether they would have justified refusal.

7. In response, the Tenant recited a lengthy list of repairs required to the rental unit which ranged from items that were not items of disrepair, to items that had been remedied (where subsection 83(3) refers to existing breaches), to, at their most serious, items that would moderately have discomforted the Tenant. Many of these, had they been proven, would have amounted to issues that could have been raised in a T6 maintenance application. The Tenant also referred to an illegal entry over the holidays without further details that might have been an issue for a T2 tenant rights application.

8. However, even if these circumstances might have justified relief in those other applications (and without making any finding that they would have), the Divisional Court in Puterbough v. Canada (Public Works and Government Services), [2007] O.J. No. 748 suggested breaches in this context should be measured to the higher standard of “materially impacting the habitability of the premises” as opposed to simple yet serious breaches considered elsewhere in the Act which could result in other remedies. Based on the list presented at the review hearing, I am not of the view that any of the Tenant’s complaints would have risen to that higher level. The order does not therefore contain any serious error.

TSL-59846-15 (Re), 2015 CanLII 59172 (ON LTB)

12. The Act requires the Board to consider whether a breach of a Landlord’s maintenance obligation is serious. The leading case on the meaning of serious breach under s.83(3)(a) of the Act, reads as follows, “In short, a serious breach of the landlord’s responsibilities is not established simply by the rental premises being in need of extensive repairs”.[1] Given the facts in the case before me, and the leading legal authority, the Tenants’ rodent problem does not rise to the level of seriousness to warrant relief from eviction.

TNL-89540-17 (Re), 2017 CanLII 60348 (ON LTB)

15. The Tenants’ counsel argued that, in the Salter decision mentioned above, the Divisional Court stated (in considering a predecessor legislative provision that was similar to subsection 83(3)) that the Board must refuse eviction if any of the circumstances set out in what is now subsection 83(3) apply. I agree with this submission. Counsel further submitted that it was not necessary for a serious breach to exist at the time of the hearing, as long as a serious breach had existed at some time. I do not agree with this latter submission.

16. While it appears that there was a longstanding issue with inadequate heat in the rental unit, the Landlord claimed, and the Tenants confirmed, that following an inspection by a standards officer from the C of T in March, 2017, the Landlord performed remedial work that resolved the heating and duct issues. That work was done in March, 2017. As such, even if there had been a serious breach, it had been rectified by the time of the hearing of the application. In order to be a bar to eviction under subsection 83(3)(a), the serious breach must be continuing at the time of the hearing. The subsection is not triggered by the Landlord having been in serious breach of responsibilities at some point in the past [Puterbough v. Canada (Public Works and Government Services), [2007] O.J. No 748 (Ont. Div. Ct.) and MacNeil v. 976445 Ontario Ltd., [2005] O.J. No 6362 (Ont. Div. Ct.), leave to appeal to C.A. refused (‘MacNeil’)]. Since any breach was resolved before the hearing, the provisions of subsection 83(3)(a) of the Act are not engaged.

TNL-06234-18 (Re), 2018 CanLII 113896 (ON LTB)

16. In order to engage the mandatory refusal of eviction under subsection 83(3)(a), the Landlord must be in serious breach of the Act, and that breach must be continuing at the time of the hearing. Even if the allegations made by the Tenant are true, I am not satisfied that they constitute serious and continuing breaches of the Act. There is no evidence that the alleged illegal entries are continuing, and the other conducts described, although arguably breaches of the Act, do not rise to the level of “serious” breaches so as to trigger mandatory refusal of eviction.

17. In order to engage the mandatory refusal of eviction under subsection 83(3)(b) regarding enforcement by the Tenant of her legal rights, I must be satisfied that the Landlords sole or primary reason for the termination is retaliatory; it is not sufficient that retaliation or vindictiveness is part of the reason MacNeil v. 976445 Ontario Ltd., (2005) O.J. No 6362 at para. 26 (Ont. Div. Ct.), leave to appeal to C.A. refused (‘MacNeil’). The provisions are triggered if the retaliation was ‘the reason” for the application. This is to be contrasted with the provisions of earlier legislation (the Landlord and Tenant Act) which mandated refusal of eviction if retaliation was “a reason” for the application.

TSL-78756-16 (Re), 2017 CanLII 28518 (ON LTB)

39. The Tenant submitted that the Board must deny the eviction pursuant to subsection 83(3)(a) of the Act because the Landlord failed to provide adequate heat in the unit from October 2016 to December 2016.

40. In the Tenants’ position, this constitutes a serious breach of the Landlord’s responsibilities for the purposes of s.83(3)(a) of the Act. Therefore, this provision of the Act prevents me from granting the Landlord’s application for termination and eviction.

41. The wording in s. 83(3)(a) is in the present tense meaning that the serious breach must be ongoing at the time of the hearing before the Board (see Puterbough v. Canada (Public Works & Government Services (2007) O.J. No. 748 (Ont. Div. Ct.) at para. 28).