Mandatory Review - Section 83 (2)

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.

Burton v. Simmons, 2018 ONSC 3484 (CanLII)

[11] The tenant/appellant suggests that the Member’s reasons were insufficient in terms of considering Section 83(3) of the Act. We disagree. The Member was alive to the application of Section 83. He had before him evidence of the tenant's complaints regarding the landlord's management of the premises. He referred to Section 83(2) which requires that the Board, "not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its power under (1)".

[15] Sufficiency of reasons does not demand that a member enumerate every subsection and describe its impact. It is clear from the entirety of the reasons that the Member considered whether to extend or truncate the tenancy and, based upon his finding of the tenant being a superintendent, he chose not to extend same. Inherent in this finding is consideration of the related Subsection 83(3) which would have caused the Member to refuse the application.

Cater v. Khakh, 2020 ONSC 6884 (CanLII)

[30] The first is that it did not, in its decision, deal in any way with the appellants’ contention under s. 83(3) that the application for eviction was brought in retaliation for their having complained to the City about the lack of heat in their rental unit. This issue was clearly raised by the appellants and cannot fall under a general consideration of circumstances under s. 83(2).

[33] The complaint by the respondents was that the appellants were refusing to pay their share of the utility costs. The appellants were refusing based on their understanding that the costs of utilities were included in the rent. Once the LTB concluded that utilities were to be paid in addition to rent, it was incumbent upon it to consider whether to refuse eviction on conditions such as payment of the utilities by the respondents on an ongoing basis along with the payment of arrears, whether the appellants would be able to make such payments if ordered, and whether such an order would be unfair to the respondents. Its failure to do so amounts to an error in law.

[34] The court recognizes that the LTB deals with a high volume of cases and that it is not required to address every issue raised or argument made by the parties. However, in this case, the reasons are perfunctory and there is no indication that the LTB considered the matters it was required to consider in sections 83(1) and 83(3) of the RTA.