Set-Aside Hearing - Re: The Test

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Date Retrieved:	2025-05-10
CLNP Page ID:	1211
Page Categories:	Hearing Process (LTB)
Citation:	Set-Aside Hearing - Re: The Test, CLNP 1211, <https://rvt.link/eu>, retrieved on 2025-05-10
Editor:	Sharvey
Last Updated:	2025/01/18

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).

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(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).

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(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)

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.”

11. Moreover, I am directed by Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468 (CanLII), [2010] O.J. No. 2710 (C.A.) to interpret the Act, which is a remedial statute, in a broad and purposive fashion.

12. Landlord’s counsel submitted, given all the circumstances, it would be unfair to set aside the March 12th order because the Tenant was represented by a legal representative when he agreed to the terms of the June 20th order and, further, it is the “general policy” of the Board to uphold consent orders, unless there is good reason not to do so. I am unaware of a Board “policy” on upholding consent orders. Indeed, if such a policy existed it would only serve to fetter a Member’s discretion as a determination of whether a consent order is upheld can only be made after a hearing involving issues of mixed fact and law.

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.

TSL-79481-16-SA (Re), 2017 CanLII 28809 (ON LTB)

12. Pursuant to subsection 78(11)(b) of the Act, I may make an order setting aside the ex parte order issued if I am satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order.

13. As such, I have the discretion to grant relief to the Tenant by setting aside Order TSL-79481-16, notwithstanding the fact that the Tenant has breached the order.

14. Landlord and Tenant Board Interpretation Guideline 7, which is not binding on me, but I opt to follow in this case, states that, in considering subsection 78(11)(b) of the Act, I should take into account:

“Circumstances that occurred after the date of the mediated agreement or conditional order that caused the party to be unable to meet the terms of the agreement or order. (Circumstances that occurred prior to the issuance of the conditional order or the signing of the mediated agreement should have been considered at the time the conditional order was made or the mediated agreement was signed, with respect to the previous application.)

The circumstances of both the landlord and tenant and the impact on other occupants in the residential complex in delaying or denying eviction.” (emphasis added)

15. The Tenant’s affirmed and uncontradicted evidence is that, on November 10, 2016, as a result of side effects of medical treatments, he “had not slept for five days” and when he arrived home at around 8:00 p.m. on that day he was very tired and went to sleep without disrobing. Upon awaking, sometime around 12:30 a.m., the Tenant went to the door to throw the deadbolt and observed that the deadbolt had been thrown.

16. JC testified that he heard, what he testified was a voice coming from inside the unit at around 10 p.m. and 11 p.m. on November 10, 2016. SL testified that she heard a voice as well coming from the unit while in JC’s company, but acknowledged that the she could not say whether it was the Tenant’s voice or a voice coming from the television. I prefer the Tenant’s evidence that he was sleeping during the material time, which is corroborated by a medical letter from his physician, dated January 4, 2017, confirming that the Tenant lives with various medical issues and the side effects of at least one treatment includes insomnia and fatigue.

17. Based on the evidence provided I find, on a balance of probabilities, that there was a significant change in circumstances, as contemplated by subsection 78(11)(b) of the Act, and which has occurred since order TSL-74614-16 was issued. In particular, since that time, the Tenant has undergone or continued medical treatment(s), the side effects of which have caused him to suffer fatigue and insomnia and, in the absence of evidence to the contrary, I further find, on a balance of probabilities, that such side effects led, directly or indirectly, to the Tenant breaching the order on November 10, 2016 as claimed by the Landlord.

18. For these reasons, I am giving the Tenant an opportunity to continue his 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.”

...

19. The two minor children will likely be adversely affected, through no fault of her own, by the termination of this tenancy. The family has lived in the unit for three years and the children, in addition to attending a nearby school, likely have friends in the neighbourhood and in the residential complex. Equally important, a housing disruption towards the end of the school year will, in all likelihood, have an adverse effect on the children’s schooling. As an adjudicator, I am required by Baker v. MCI 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, to consider the best interests of children who are directly affected by a subsection 78(11)(b) analysis. Given all the facts presented, am of the opinion that it is in the best interests of the children to remain in the unit. However, there are additional reasons to grant the Tenant’s motion pursuant to subsection 78(11)(b).