Talk:Set-Aside Hearing - Re: The Test

Other

Sewch Investments v. Levert, 2019 ONSC 4411 (CanLII)

[1] The tenant argues that three of the Landlord and Tenant Board’s 2016 decisions were unreasonable for two reasons.

[2] First, he argues the Board failed to apply s. 27(1)4 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”) in that it failed to determine whether the entry on January 7, 2016 was reasonable. He submits that the entry was not reasonable, because the landlord chose a day for entry when the tenant had a Board hearing, knowing that the tenant wanted to be present for any inspection. As well, the entry was unreasonable because he was ill that day.

[3] This ground of appeal raises no question of law. The Board turned its mind to s. 27 and found the notice of entry was proper and that the entry was for a lawful purpose (see para. 19 of the Reasons). The tenant does not have a right to be present for the entry, so the fact that he was going to be elsewhere does not affect the lawfulness of the entry or its reasonableness.

[4] The Board also found that the tenant refused entry. The argument that he was ill, and that was the reason to refuse entry, does not appear to have been made to the Board in relation to s. 27. In any event, on the facts set out in the decision, the entry was reasonable, as shown by the statement of the Board at para. 30:

The Tenant gave no evidence to connect his disability or any of his other personal circumstances with the issue of his repeated refusals to allow the landlord’s agents entry into the rental unit.

[5] Second, the tenant argues that the Board, in exercising its discretion not to set aside the earlier eviction order, erred in law in failing to consider the landlord’s obligation to accommodate his disability in accordance with the Human Rights Code, R.S.O. 1990, c. H.19. He submits that the Board should have considered amending the 2015 mediated agreement to give the tenant more of an input into scheduling entry to his unit.

[6] Pursuant to s. 78(11)(b) of the RTA, the Board may make an order setting aside an eviction order if the Board is satisfied, in the circumstances, that it would not be unfair to set aside the order. In the present case, the Board was of the view that there would be unfairness to the landlord if the eviction order was set aside on the basis of evidence that the tenant was likely to continue to breach the mediated agreement.

[7] Moreover, as quoted above, there was no evidence to connect the tenant’s medical condition or personal circumstances with the repeated refusals of entry. Without such evidence, the Board could not determine whether there was a meaningful accommodation that would prevent further breaches of the mediated agreement.

[8] Accordingly, we find no error of law by the Board in refusing to exercise its discretion to set aside the eviction order.

[9] For these reasons, the appeal is dismissed and the stay of the Board’s eviction order is lifted.

[10] I have endorsed the Appeal Book and Compendium as follows: “The appeal is dismissed for oral reasons given today. The stay of the Board’s eviction order is lifted, but the Sheriff shall