Mandatory Review - Section 83 (2)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-05
CLNP Page ID:	243
Page Categories:	[Hearing Process (LTB)], [Payment of Rent (LTB)], [Category:Illegal Act & Impairment of Safety (LTB)], [Category:Interference of Reasonable Enjoyment (LTB)]
Citation:	Mandatory Review - Section 83 (2), CLNP 243, <4z>, retrieved on 2024-11-05
Editor:	Sharvey
Last Updated:	2023/09/22

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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.

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.

TSL-97138-18 (Re), 2018 CanLII 120848 (ON LTB)

12. Further and in any event, the Tenant has led persuasive evidence that the Landlord is in serious breach of his obligations to maintain a sufficient temperature in the unit. Refusal of this application is mandatory under s.83(3)(a) of the Act where I am satisfied that the Landlord is in serious breach of his responsibilities under the Act.

13. The Landlord has an obligation to provide a heating system capable of maintaining a room temperature of 21 degrees. The Tenant presented persuasive evidence, including various temperature readings across a wide number of dates, showing that the temperature in the unit was far below this required level required under the Toronto Municipal Code and stayed that way.

14. While the Landlord did not seriously dispute the Tenant’s allegations that the furnace in the home is not capable of generating a sufficient amount of heat for the unit, he contended that the Tenant’s temperature readings resulted from the Tenant holding open the door to the unit during his exterior smoke breaks. I do not find this evidence from the Landlord to be credible or compelling or in any way responsive to the Tenant’s allegations of serious breach.

15. Based upon the totality of evidence before me, I am satisfied that the Landlord is in serious breach of his obligations under the Act as the residential complex does not have a heating system capable of maintaining a temperature in the unit of 21 degrees. As such, under s.83(3) of the Act, notwithstanding my conclusions re: the good faith of the notice, refusal of this application is mandatory in any event.

CET-68675-17 (Re), 2017 CanLII 93910 (ON LTB)

35. Subsection 83(2) of the Act goes on to say that “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).” More specifically, subsection 83(3)(c) of the Act says that: “without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that, the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.”

36. Based on the evidence before me, I am satisfied that this application for eviction is solely in retaliation to the Tenant’s attempts to enforce her legal rights to require the Landlords to maintain the rental unit. Not only has the Landlord threaten eviction by way of a N12 notice in the past in response to the Tenant’s requests for maintenance, this N12 notice was given to the Tenant on August 16, 2017 exactly two weeks after the Tenant finally filed this maintenance application, CET-68675-17. Those facts, coupled with the Landlords belief that they do not have to complete the repairs because YC has limited financial means, satisfy me that the eviction must be refused in accordance with subsection 83(3)(c) of the Act.

SWL-95963-16 (Re), 2017 CanLII 28669 (ON LTB)

Determinations:

T6/ Tenant’s Application about Maintenance

1. The Landlords failed to ensure that the pesticides used to treat the pest infestation were removed from the premises. Therefore, I find that the Landlords failed to meet the Landlords' obligations under subsection 20(1) of the Act to maintain the rental unit and failed to comply with safety standards.

2. The Tenant has been unable to live in the premises or use many of her personal belongings since approximately August 10, 2016, due to the presence of pesticides and pesticide residue.

3. Some of the Tenant’s property was damaged by continued exposure to pesticides.

T2/ Tenant’s Rights Application

1. The Landlords’ failure to takes steps to clean the pesticides from the premises substantially interfered with the Tenant’s reasonably enjoyment of the premises to the point that she could not live in her home or use her property.

L2/Notice to Terminate at End of the Term for Landlord’s or Purchaser’s Own Use (N12)

1. The Landlords did file affidavits attesting to their good faith intention to personally occupy the rental unit.

2. The Board is prohibited from terminating the tenancy because the Landlord is in serious breach of the Landlord’s obligations.

L2/ Notice to Terminate a Tenancy Early (N5)

1. The Landlord gave a second Notice of Termination, which contravenes section 68 of the Residential Tenancies Act. The first Notice of Termination was not voided. The second notice cannot be used as a first notice as there is no ability to void.

It is ordered that:

1. The Application to Terminate a Tenancy and Evict a Tenant (L2) based on the Notice to Terminate at End of the Term for Landlord’s or Purchaser’s Own Use (N12) is dismissed.

...

Centurion Property Associates Inc.; Thresholds Homes and Supports Inc. v. Debbie Kuehn ONLTB SWL-48792-21

23. The Landlords have, in my view, established that the clutter in the rental unit (a) substantially interfered with the Landlords’ lawful rights, privileges and interests by impeding the ability of the Landlord to treat the rental unit for pests; and (b) constituted a serious impairment to the safety of the Tenant and other residents of the residential complex. That is not, however, the end of the story and I must consider all of the relevant circumstances as required by section 83. That includes consideration of the HRC and whether the Landlords have established that they have complied with their obligations under the HRC.

Section 83

24. I have considered all of the disclosed circumstances and find that it would not be unfair to grant relief from eviction in accordance with paragraph 83(1)(a).

25. There is no dispute that the Tenant has a disability that has resulted in, or at least contributed to, the issues identified by the Landlords as being the basis for this application. When exercising discretion under section 83 of the Act, I must have regard to the Landlords’ obligations under the HRC and whether they have complied with those obligations. It is not, in my view, unfair to deny eviction in circumstances where a landlord has failed to comply with its obligations under the HRC.

26. Where the grounds relied upon by a landlord to terminate a tenancy and evict a tenant arise as a result of the fact that the tenant has a disability, the landlord must, in my view, establish that it has accommodated the tenant to the point of undue hardship as required by the HRC. I find, for the reasons set forth below, that, in this case, the Landlords have not met this burden and this application should, as a result, be dismissed on the basis that it is not unfair to grant relief from eviction.

...

37. The Landlords raised Connelly v Mary Lambert Swale Non-Profit Homes [2007 CanLII 52787 (ON SDC)] and argue that the conduct of the Tenant must be considered when assessing whether the Landlords have fulfilled their duty to accommodate. Connelly involved a drug addict dealing drugs from his rental unit. The Divisional Court rejected any suggestion that there was an obligation on the landlord to permit the tenant to deal drugs out of his rental unit to accommodate the tenant’s disability. The Board had found that no accommodation was possible. I am not able to make that finding based on the facts of this case. To the contrary, I find that accommodation of the Tenant is possible.

...

45. The Landlords have provided me with no evidence upon which I am able to reasonably find that the requested accommodation would impose undue hardship on the Landlords and, in the absence of any evidence as to the impact on the Landlords of doing so, I am unable to accept that providing the Tenant with a space in the parking lot of the residential complex on a temporary basis to accommodate a shipping container constitutes, in and of itself, an undue hardship on the Landlords.

46. The Landlords do not appear to have made inquiries of the Tenant as to the dimensions of the shipping container that the Tenant was considering such that they were in a position to assess the impact, if any, on placing the requested shipping container in the parking lot of the residential complex.

47. There was no evidence with respect to the cost (if any) to the Landlords of accommodating the Tenant or with respect to the sources (if any) of outside funding that may be available.

48. There was substantial evidence before me from Ms Wilcox with respect to the issues of health and safety that arise from the clutter in the rental unit. That evidence related, however, to the health and safety impact of the clutter in the rental unit and did not address any health and safety requirements as they relate to the accommodation requested by the Tenant. There is no evidence upon which I could reasonably find that the accommodation requested by the Tenant gives rise to identified health and safety requirements such that the making of the accommodation would result in undue hardship to the Landlords.

49. There is evidence that the Tenant has had issues keeping the rental unit clutter-free on a long-term basis and in making my determination I have considered: (a) the prior mediated agreement between the Landlords and the Tenant; and (b) the evidence of Ms Wilcox that the Tenant made some progress in de-cluttering the rental unit, but that progress was short-lived. Those considerations do not change my view that the Landlords have not established that they have accommodated the Tenant to the point of undue hardship. I do not see speculation as to what might happen if the Tenant’s request for accommodation is granted as being particularly relevant to whether the requested accommodation results in undue hardship to the Landlords.