Set-Aside Hearing - Re: The Test

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1211
Page Categories:	Hearing Process (LTB)
Citation:	Set-Aside Hearing - Re: The Test, CLNP 1211, <6a>, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2022/03/16

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

78 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied:

1. The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant.

2. A settlement agreed to under section 194 or order made with respect to the previous application,

i. imposed conditions on the tenant that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application, and

ii. provided that the landlord could apply under this section if the tenant did not meet one or more of the conditions described in subparagraph i.

3. The tenant has not met one or more of the conditions described in subparagraph 2 i. 2006, c. 17, s. 78 (1); 2020, c. 16, Sched. 4, s. 15 (1).

...

(9) The respondent may make a motion to the Board, on notice to the applicant, to have an order under subsection (6), and any order made under subsection (7) or (7.1), set aside within 10 days after the order made under subsection (6) is issued. 2006, c. 17, s. 78 (9); 2017, c. 13, s. 16 (8).

...

(11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if any of the criteria set out in subsection (1) are not satisfied;

(b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6); or [Emphasize Added]

(c) make an order lifting the stay of the order under subsection (6), and any order made under subsection (7) or (7.1), effective immediately or on a future date specified in the order. 2006, c. 17, s. 78 (11); 2017, c. 13, s. 16 (10).

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.

TNL-21735-19-SA (Re), 2020 CanLII 31176 (ON LTB)

9. The Tenants have lived in the unit for about 4 ½ years. They have two children ages 9 and 13 years old. The Tenants stated that they want to continue living in the unit and have a monthly income of $9,000.00 and in the next couple of months, expect their income to increase due to SF’s business.

10. The Landlord opposed the set aside motion and submitted that the Tenants have not acted in good faith as they filed a review of the consent order, which was denied. The Landlord also submitted that the Tenants owe the Landlord $11,192.62. This was not disputed by the Tenants.

11. In my view, the purpose of subsection 78(11) of the Act is to capture situations where after the order is issued something unforeseen/unexpected or beyond the tenant’s control occurred which made it impossible for the tenant to comply with the order. In this case, the Tenants wants me to accept that they did not understand the order, and they had an income gap of 7 days. I do not accept that this was beyond the Tenants’ control. First of all the consent order is clear when the rent and the arrears are due. Secondly, the Tenants are aware of their income and SF’s business venture. They should have factored this when they consented to the payment plan and to pay the rent when due.

12. As I stated at the hearing, in the normal course I would have denied the Tenants’ motion to set aside. However, I have to consider all the circumstances. In this case, I considered that the Tenants’ came to the hearing with a bank draft for over $10,000.00. I am of the view that this is an act of good faith that the Tenants want to continue the tenancy.

TSL-93456-18-SA (Re), 2018 CanLII 120874 (ON LTB)

8. As such, I have the discretion to grant relief to the Tenant by setting aside order TSL-93456-18 notwithstanding the fact that the Tenant has failed to meet a condition specified in consent order TSL-84061-17-SA issued on June 20, 2017.

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10. I am of the opinion that subsection 78(11)(b) of the Act requires a broad interpretation of “all the circumstances”. In Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, a case concerning the exercise of discretion not to remove a permanent resident from Canada, the Supreme Court considered the ordinary and grammatical meaning of “all the circumstances of the case” and noted at paragraphs 29 and 30:

“An ordinary reading of “all the circumstances of the case” leads to a broad interpretation of s.70(1)(b). The first consideration is that these words appear in a provision establishing a discretionary or equitable jurisdiction. The words do not provide detailed guidelines as to how this discretionary jurisdiction is to be exercised, but instead leave the scope of the discretion open-ended.

The second factor favouring a broad reading of s. 70(1)(b) is the grammatical sense of the phrase “all the circumstances of the case”. The word “all” is defined by the Concise Oxford Dictionary (8th ed. 1990), at p. 29, as “entire number of” or “greatest possible”. In this context, it would therefore mean considering the greatest possible number of factors relevant to the removal of a permanent resident from Canada. It is evident that one such factor is the conditions an individual would face upon removal.”