Set-Aside Hearing - Re: The Test

TSL-98039-18-SA (Re), 2018 CanLII 120862 (ON LTB)

13. The Tenants breached the consent order. The primary issue then becomes whether it is not unfair to set aside the eviction order.

14. The legal representative of the Tenant emphasized the importance of the Tenants maintaining stable housing, citing Sutherland v. Lamontagne [2008] O.J. No. 5673 (Ont. Div. Ct.). In this case, I also find relevance in the words of the Divisional Court in Paderewski Society v. Ficyk, [1998] O.J. No. 4184 (Div. Ct.), where that Court wrote: “To put somebody out of their home must, in my view, call for clear and compelling circumstances that it’s no longer possible for the arrangement to continue.”

15. Here, I am not convinced that the totality of circumstances at present constitute an arrangement that cannot or should not continue.

16. While I acknowledge DC’s succinct and capable summary that the Tenants have been provided an opportunity to save their tenancy and missed it, the $300.36 shortfall as of the hearing date, is, in my view, emblematic of a family that is struggling to make ends meet and has made some demonstrable efforts to continue this contractual relationship, while admittedly falling short of that goal.

17. TD’s son is a person with a disability. A minor child also lives in the unit. Given the circumstances of the Tenants, their good faith efforts to satisfy their obligations; and the negative impact an eviction would have on the minor child involved, I believe it is not unfair to set aside the eviction order.

18. However, under the circumstances, I believe it is reasonable to amend the consent order to require the Tenants to pay to the Landlord the amount of $300.36 within 11 days of this order.

19. In ordering that the eviction order to be set aside, I do not want to be misunderstood as saying that this relief from termination constitutes ongoing protection from the consequences of future breaches of the consent order or further defaults by the Tenant. It simply recognizes that, as of the hearing, the totality of circumstances suggests it is not unfair to allow the Tenants a further opportunity to continue their tenancy.