Serious Breach - Section 83 (3)(a)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2072
Page Categories:	[Section 83 (RTA)]
Citation:	Serious Breach - Section 83 (3)(a), CLNP 2072, <https://rvt.link/39>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/02/01

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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.

Blaker v. Chan, 2013 ONSC 6331 (CanLII)

[1] This is an appeal by the tenant from an eviction order of the Landlord and Tenant Board dated May 22nd, 2013, as amended May 24 2013. Section 210 of the Residential Tenancies Act, 2006, [pat’s addition] S.O. 2006, c. 17 (the “Act”),] provides a right of appeal to this court but only on a question of law.

[2] In paragraph 3 of the Board’s reasons the board member lists the issues to be determined. In doing so, the board member included these words: “Is it unfair to the landlord to refuse or delay the eviction under s.83 of the Residential Tenancies Act?” The Board applied an incorrect or incomplete legal test by defining the issue as whether it is “unfair” to refuse or delay eviction under s.83 of the Act. The Board articulated the test under the discretionary provision in s.83(1) of the Act, however it failed to consider that under s.83(3), the Board has no discretion and must refuse to grant an eviction order if it determines that there has been a “serious breach of the landlord’s responsibilities under the Act or of any material covenant in the tenancy agreement.”

[3] In this case, the Board explicitly found that the landlord had “substantially interfered with the tenant’s reasonable enjoyment of the premises.” Particulars of that finding are set out in paragraphs 16 to 18 of the reasons. On their face, they seem to constitute a “serious breach”. At the very least, the reasons need to explain why s.83(3) was not applicable on the facts as found.

[4] The rationale for merely postponing eviction, rather than refusing an eviction order, is set out in paragraph 33 of the reasons. That rationale may support a discretionary decision under s.83(1), particularly having regard to the tenant’s own conduct. However s.83(3) is mandatory not discretionary. Furthermore, the tenant’s misconduct is not a relevant consideration under s.83(3), which focuses solely on the landlord’s conduct.

[5] There is no reference to s.83(3) in the reasons and we cannot assume that the Board considered its provisions, given the more narrow definition of the issue in paragraph 3 of the reasons and the factual findings in paragraphs 16 to 18.

[6] The appeal is allowed and the order under appeal is remitted to the same board member for reconsideration, specifically to consider the applicability of s.83(3) of the Act to the facts as found.

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]

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).