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.

TEL-99511-19 (Re), 2019 CanLII 126925 (ON LTB)

T.H.L. (the 'Landlord') applied for an order to terminate the tenancy and evict M.L. and M.C. (the 'Tenants') because the Tenants did not pay the rent that the Tenants owe. At the hearing the Tenants applied pursuant to section 82 of the Residential Tenancies Act, 2006 (the 'Act') for an order determining that the Landlord failed to meet the Landlord's maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards; and for an order determining that the Landlord or the Landlord’s agent interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants or by a member of the Tenants’ household.

Determinations:

14. Given that the Tenants’ evidence is corroborated in part by the text messages between the parties and not refuted by any evidence on the part of the Landlord, I accept that there has been a problem with the plumbing such that the drains for the bathtub and laundry do not work properly.

15. An order shall issue requiring the Landlord to retain the services of a licensed plumber to clear the drains and ensure the plumbing system is in good working order.

16. The Tenants are also entitled to abatement of the rent.

17. Abatement is a contractual remedy based on the idea that a tenant pays for a bundle of goods and services and where a tenant is not receiving all of those goods and serves rent should be abated proportional to the difference between what is being received and what is being paid.

18. Here, the Tenants could not bathe or use their laundry facilities. So they are entitled to abatement of the rent.

19. In terms of quantum, the impact on the Tenants of the disrepair has been substantial in that they cannot bathe at home or do laundry. Given this impact and my knowledge of similar like cases before the Board it seems to me a reasonable abatement of the rent would be 30% of the rent charged for the relevant period November 1, 2018 to May 31, 2019 or $2,625.00.

20. The Tenants also allege that their water bills have gone from $120.00 to $300.00 because using the toilet to dispose of water causes increased use. However, the Tenants did not produce any water bills at the hearing nor could they say whether those bills were monthly or not. The Tenants also led no evidence of the increased costs incurred for laundry or driving to their relative’s home for bathing. Given the paucity of evidence in this regard it is impossible to calculate with any accuracy any reasonable out of pocket expenses the Tenants may have incurred as a result of the Landlord’s default. So no order shall issue for out of pocket expenses.

21. That leaves the issue of relief from eviction.

22. Pursuant to s. 83(3)(a) of the Act the Board must refuse to grant eviction where it is satisfied that the landlord is in serious breach of the landlord’s responsibilities. Failing to deal with a significant plumbing issue for months is a serious breach of a landlord’s responsibilities. The Landlords here are not entitled to an eviction order.

TEL-94843-18 (Re), 2019 CanLII 87154 (ON LTB)

28. In addition, the delivery of two N5 notices and two N12 notices following a discussion between T and T at the beginning of September 2017 to the effect that T’s mother cannot take the stress of the dispute with the Condominium Corporation regarding Terri’s smoking marihuana for medicinal purposes and therefore intends to occupy the rental unit suggests there has been a change of intended occupants of the unit. Nevertheless, I am satisfied SV is honest in asserting her desire to live in the unit while attending the remaining semesters of her three-year program at college and therefore the Landlords are entitled to evict the Tenants subject to considerations referenced in section 83 of the Residential Tenancies Act, 2006 (the “Act”), including whether it would be unfair to refuse to grant termination of the tenancy and whether the Landlords are in serious breach of the Act by failing to comply with their obligations under the Human Rights Code, RSO 1990, c H.19, as amended.

Section 83 Considerations

29. In accordance with subsection 83(2) of the Act, I must consider all of the disclosed circumstances and determine whether it would be unfair to deny eviction pursuant to section 83(1)(a) of the Act.

35. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), as stated above, and find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.

36. In addition, pursuant to section 83(3) of the Act, I must deny the Landlords’ application because the Landlords are in serious breach of the landlords’ responsibilities under this Act. Based upon the medical evidence presented that supports Terri’s disabilities and right to have marihuana for medicinal purposes, I am satisfied the negative responses by the Landlords and the Condominium Corporation to T’s request for accommodation by allowing her to smoke marihuana outside on the terrace were inappropriate. The Landlords have a duty to accommodate T’s disabilities to the point of undue hardship. If she needs to smoke marijuana and it is prescribed, the Landlords must allow this to take place.

It is ordered that:

1. The application is dismissed.