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.

SOL-34561-13 RV (Re), 2014 CanLII 23584 (ON LTB)

18. I shall now turn to clause (a) and my opinion as to whether this clause provides mandatory relief from forfeiture for the Tenant on the facts as I found earlier in this case. In short I do not find that clause (a) applies.

19. The word “serious” is not defined in subsection 83 (3) nor in any other part of the RTA. However the word “serious” does appear in several other sections of the RTA, namely: section 17 which codifies the common law principle of covenants interdependent, section 30 as it relates to serious breaches of maintenance, subsection 66 (1) (a) in an application for termination based on serious impairment of safety, subsection 76 (1) (b) in an application for termination based the presence of a pet that has caused a serious allergic reaction to the Landlord or another tenant, subsection 117 (3) and (4) as it relates to the Board’s jurisdiction to refuse a rent increase in the case of serious breaches of maintenance, and in subsections 126 (12) and (13) in a Landlord’s application for an above guideline increase where serious breaches of maintenance have been raised. In all of these instances, there is no statutory test for applying the term “serious.”

20. In paragraph 76 of subsection 241 (1) in Part of XVII of the RTA, headed Regulations, it states that the Lieutenant Governor in Council may make regulations, defining “serious” as it is used in any provision of this Act and defining it differently for different provisions. As of the date of this Order, and my amended order dated May 24, 2013, no such regulation has been made under Reg. 516/06 defining “serious”. Accordingly, the Legislature has not defined the word “serious”.

21. Furthermore, I am not satisfied the word “substantial” and the word “serious” are used interchangeably in the RTA. In subsection 29 (3) of the RTA, a tenant or a former tenant may apply to the Board for an order determining that the landlord, superintendent, or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her house. Clearly, the test for interference with reasonable enjoyment is based on the word “substantial.” Had the Legislature intended the test for interference be “serious” they would have used the word “serious” as articulated in the many other provisions of the RTA (See paragraph 19) I am applying the same logic to subsection 83 (3) of the RTA. The legislature did not intend that a “substantial” breach is equivalent to a “serious” breach within the meaning of subsection 83 (3) of the RTA.

22. For the purpose of this Order, I have turned to the definition of “serious” as defined in Black’s Law Dictionary (5th ed), TSL-24120-12 and the leading case of the Divisional Court in Puterbough v. Canada (Public Works and Government Services) [2005] O.J. No 5727 [hereinafter Puterbough].

23. “Serious”, in Black’s Law Dictionary is defined as “important, weighty, momentous, grave and great.

24. The Tenant relies on Board Order TSL-24120-12 2012 Canlii 21575 (ON LTB) issued February 16, 2012. In that case the Board determined that the word “serious” in section 83 of the RTA should be interpreted to mean substantial and ongoing and not merely minor, trivial or of passing concern. The Board determined, based on the evidence before it, that although none of the breaches of maintenance, if taken alone, would likely reach the level of “serious”, the totality of the Landlords conduct and the severity of the breaches was such that, the Landlords were in serious breach of their obligations under the RTA.

25. Although I am not bound by the Board’s decision in Order TSL-24120-12, the following are my reasons for distinguishing the facts in this case from those found in Order TSL-24120-12. In TSL-24120-12 the Landlords brought three applications to terminate the tenancy. The first application, based on Landlord’s own use, was dismissed because the Landlords had at no time ever intended to occupy the Tenants’ unit for residential purposes. The second application for termination based on wilful damage was also dismissed because the Landlords had no evidence to support any type of finding that the Tenants had caused any damage to the rental unit. The Landlords successfully proved that the Tenants were in arrears but the Board abated some arrears based on the Tenants’ application under section 82 of the RTA. The Tenants successfully proved that the Landlords had failed to do multiple repairs, had entered their rental unit illegally, and spit on them or at them during the course of the tenancy. The Board also reflected on the violent mannerisms and the blanket denials of the Landlords during the course of the proceedings which she observed first hand.

26. In paragraph 26 of reasons Order TSL-24120-12, the Board finds that the totality of the conduct of the Landlords as reflected in the number and severity of the breaches is such that it would be accurate to say that overall the Landlords are in serious breach of their obligations under the Act. The Landlords in Order TSL-2412-12 brought two applications without grounds or any evidence, they behaved in a violent manner at the hearings, they failed to address maintenance issues spit at the Tenants and entered their unit illegally without explanation. Had the same facts been before me, I too could find that the totality of the Landlords conduct reached the level of serious breach. Illegal entries, and spitting at the Tenants alone, point to a level of grave misconduct. The fact that the Landlords could not control themselves at the hearing was clearly in the Member’s mind when she evaluated the evidence of how the Landlords’ interference affected the Tenants reasonable enjoyment.

27. As is set out in my original Order, I am satisfied the Tenant met the burden of proof to meet the test of “substantial” interference in subsection 29 (3) of the RTA. The Tenant’s concerns were valid. They were real and substantial, but unlike Order TSL-24120-12 the facts here are distinguishable. The Landlord’s failure to address the Tenant’s maintenance issues and the Landlord’s incompetence with the electronic payment arrangement were irritating but the evidence did not persuade me that the breaches were grave. Again, I was persuaded that her behaviour substantially interfered with the Tenant but I was not persuaded that the totality of the Landlord’s breaches and her conduct in the case before me reached the level of “serious” breach. I do not find her behaviour gravely or momentously interfered with the Tenant’s enjoyment. She did not behave in a violent manner nor was she entering the unit illegally thereby breaching the Tenant’s privacy. She was not behaving in a violent out of control manner which was the case in Order TSL-24120-12. Instead, the correspondence between the parties is that the Tenant wanted work done and he was ignored. Alternatively the Landlord refused to do the work because she did not believe it necessary. This is factually very different then a landlord entering the unit illegally or spitting at the Tenant in a violent manner.

28. In the Puterborough case, the Court interpreted serious breach in respect of a Landlord’s statutory duty to repair and maintain the rental unit. At paragraph 22, the Court stated that “serious breach”, in the context of the Landlord’s maintenance responsibilities:

i. Means more than the rental premises being in poor condition and in need of significant work… In short, a serious breach of the landlord’s responsibilities is not established simply by the rental premise being in need of extensive repairs.

29. Older homes, like cars, routinely need maintenance. It is quite possible this home will always present some form of maintenance issue that requires attention. Consistent with the Court’s decision in Puterbough, serious breaches of maintenance have to include more than just the need for “extensive’ repairs resulting from poor conditions requiring “significant work”. As of the date of hearing, I was not persuaded by two of the Tenant’s alleged remaining maintenance concerns. The Tenant complained about mould but this was not borne out by the documentary evidence of the municipal bylaw officer. Mould was, not only, not visible on the day of the inspection but even if it was visible, the area is identified as a crawlspace. The crawlspace is not considered habitable space. I understood, as of the date of the second hearing that the electrical issues raised by the Tenant had been addressed by the Landlord. While the gate was still broken, there was no evidence that repairs required were extensive or required significant work. Quite the contrary, this Tenant not only wanted to stay in the rental unit, at the time of the hearing, he wanted to buy it.

30. I appreciate that the Tenant believes the rental unit is in need of repairs but having regard to the Court’s decision in Puterbough, I do not find that repairs he completed or that he complained of rise to the level of “serious breach” of maintenance because it is not enough that to establish that the rental premise is in need of repairs.

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).

TNL-62386-14 (Re), 2014 CanLII 76725 (ON LTB)

11. Subsection 83(3) of the Act requires the Board to deny an eviction application where a landlord is in serious breach of his or her duties under the Act or the tenancy agreement. In Puterbough v. Canada (Public Works and Government Services), [2007] O.J. No. 748 (Div. Ct.) (‘Puterbough’), the Divisional Court considered an identical provision in the Tenant Protection Act, 1997, the current Act’s predecessor legislation. The Divisional Court determined that not all breaches meet the level of a “serious breach”.

12. In Puterbough, despite evidence of extensive disrepair to the rental properties in question, including evidence that properties would have to be demolished, the Divisional Court determined that the landlord was not in “serious” breach of its maintenance obligations.

13. Based on the Tenant’s evidence, I conclude that, although the Landlord is in breach of her maintenance obligations, the breach is not “serious”. For example, even though the Landlord refuses to maintain the rental unit’s septic system, the Tenant is nevertheless able to use the bathroom for all normal purposes. The Tenant also testified that he is able to use the rental unit’s kitchen facilities and bedroom for their intended purposes. I therefore conclude that the Landlord’s breaches of her duties under the Act or the tenancy agreement, are not serious, and conclude that it would be inappropriate to deny the Landlord’s eviction application pursuant to subsection 83(3) of the Act.

TSL-79855-16-RV (Re), 2017 CanLII 31017 (ON LTB)

6. The real question before me at the review hearing was whether there were any circumstances before the Member pursuant to subsection 83(3) of the Act where eviction should have been refused, where “the landlord is in serious breach of the landlord’s responsibilities under the Act or any material covenant in the tenancy agreement.” The Tenant was therefore asked at the review hearing to list those issues that were before the Member to determine whether they would have justified refusal.

7. In response, the Tenant recited a lengthy list of repairs required to the rental unit which ranged from items that were not items of disrepair, to items that had been remedied (where subsection 83(3) refers to existing breaches), to, at their most serious, items that would moderately have discomforted the Tenant. Many of these, had they been proven, would have amounted to issues that could have been raised in a T6 maintenance application. The Tenant also referred to an illegal entry over the holidays without further details that might have been an issue for a T2 tenant rights application.

8. However, even if these circumstances might have justified relief in those other applications (and without making any finding that they would have), the Divisional Court in Puterbough v. Canada (Public Works and Government Services), [2007] O.J. No. 748 suggested breaches in this context should be measured to the higher standard of “materially impacting the habitability of the premises” as opposed to simple yet serious breaches considered elsewhere in the Act which could result in other remedies. Based on the list presented at the review hearing, I am not of the view that any of the Tenant’s complaints would have risen to that higher level. The order does not therefore contain any serious error.