Relief from Eviction (Maintenance)

Residential Tenancies Act, 2006, S.O. 2006, c. 17

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).

(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.

(4) The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 52, 54 or 55, as the case may be.

(5) If a tenant has given a landlord notice under subsection 53 (2) and subsection 54 (2) applies, the Board shall not issue an eviction order in a proceeding regarding termination of the tenancy until the landlord has compensated the tenant in accordance with subsection 54 (2).

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 reasonMacNeil 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.