Martin P. Zarnett

The elderly tenant faced eviction for unpaid rent.

Her daughter brought an emergency motion to stay the eviction and paid the outstanding amount ordered by the Landlord and Tenant Board.

Despite being served with notice of the motion, the landlord and sheriff executed the eviction.

The court granted a retroactive stay, finding the outstanding amount was paid prior to the eviction taking place, and maintained the stay for 45 days to allow the parties to resolve the ongoing rent dispute.

The moving party, an elderly tenant with health challenges, brought an emergency motion to stay an eviction order obtained by the respondent housing corporation for rent arrears.

Despite being served with notice of the motion, the respondent and the sheriff executed the eviction.

The court retroactively stayed the eviction after finding the tenant had paid the outstanding amount under the Landlord and Tenant Board order.

The court maintained the stay for 45 days to allow the tenant to address ongoing rent arrears, which were disputed due to being calculated on a double-occupancy basis despite the tenant living alone.

The appellant tenant commenced an application for a declaration of a valid lease after the respondent landlord terminated the tenancy and took possession of the premises.

Three years later, the appellant moved to direct a trial of the issues and amend its pleadings to claim damages for wrongful termination and loss of inventory.

The motion judge dismissed the motion, finding the proposed amendments raised new causes of action that were statute-barred.

The Court of Appeal allowed the appeal, holding that the proposed damages claim was an alternative remedy arising from the same factual nexus originally pleaded in the application and supporting affidavit, and therefore did not constitute a new cause of action.

The self-represented tenant moved for a six-month extension of time to perfect her motion for leave to appeal a Superior Court order and her appeal of a Landlord and Tenant Board eviction order.

The landlord opposed, citing extensive delays and previous extensions.

Applying the test for extending time, the Divisional Court found that while the delay was significant, the tenant's difficult personal circumstances and the lack of severe prejudice to the landlord justified a final extension.

The court granted an extension to September 1, 2016, but dismissed the tenant's requests for consolidation and case management.

The tenant appealed a Landlord and Tenant Board order evicting her for repeatedly denying the landlord access to her rental unit to take photographs for the purpose of selling the property.

The Divisional Court held that the Board erred in law by finding that section 27(1)(5) of the Residential Tenancies Act permitted entry for this purpose.

The Court concluded that absent a specific term in the lease or the tenant's consent, a landlord has no statutory authority to enter a rental unit to take photographs for marketing purposes, as doing so infringes on the tenant's privacy interests.

The eviction order was set aside.

The landlord appealed a decision of the Landlord and Tenant Board dismissing its application to evict a tenant who had smoked in his unit for 22 years.

A neighbouring tenant had vacated due to the cigarette smoke and odour, which the landlord was unable to remedy despite various efforts.

The Divisional Court found that the Board erred in law by failing to consider the landlord's ongoing statutory obligation under s. 20 of the Residential Tenancies Act to maintain the complex fit for habitation for future tenants.

The appeal was allowed and the matter remitted for a re-hearing before a differently constituted Board.

The appellant landlord appealed a decision of the Landlord and Tenant Board dismissing its application to evict the respondent tenant for late payment of rent.

The tenant had paid rent late eleven times over a twelve-month period, but had a ten-year history of paying on time prior to that.

The Divisional Court held that the Board's interpretation of 'persistently' and its exercise of discretion to refuse eviction without imposing conditions were reasonable.

The appeal was dismissed.

The appellant appealed a summary judgment dismissing his action against his former landlord for unlawful eviction.

The appellant also moved to introduce fresh evidence on appeal.

The Court of Appeal dismissed the motion for fresh evidence, finding the materials were available during the original motion.

The Court dismissed the appeal, agreeing with the motion judge that the action was an attempt to re-litigate issues previously decided by the Landlord and Tenant Board, Divisional Court, and Small Claims Court, and that the matters fell within the exclusive jurisdiction of the Landlord and Tenant Board.

The appellant, a residential tenant, sued her landlord in Small Claims Court for negligence after her unit was burglarized via an adjacent unlocked unit.

The Deputy Judge dismissed the action, finding the essential character of the dispute fell within the exclusive jurisdiction of the Landlord and Tenant Board.

On appeal, the Divisional Court upheld the decision, confirming that the claim essentially alleged a breach of the landlord's statutory obligations regarding safety and quiet enjoyment.

The court also refused to transfer the matter to the Superior Court, as the one-year limitation period under the Residential Tenancies Act had already expired when the Small Claims action was commenced.

The tenants appealed an order of the Landlord and Tenant Board to the Divisional Court.

The court found that the appeal raised no question of law, as required by section 210 of the Residential Tenancies Act, 2006, and that the tenants were merely seeking to re-try the case.

The court also dismissed the tenants' allegation of bias, noting that disagreement with the Tribunal's factual findings does not constitute bias.

The appeal was dismissed with costs fixed at $4,000.

The tenant appealed a decision of the Landlord and Tenant Board terminating his tenancy after the Board found he had assaulted the building superintendent.

The tenant argued the Board erred in law by failing to consider his personal circumstances, including his lack of a criminal record, financial situation, and ties to the community, as required by section 83 of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, finding that the tenant had adduced little to no evidence on these factors before the Board, and the Board had properly considered section 83 based on the evidentiary record before it.

The landlord brought a motion to lift the automatic stay of an eviction order pending the tenant's appeal.

The tenant had fallen into arrears after a social housing agency discontinued paying its portion of the rent, a decision the tenant was challenging via judicial review.

The court dismissed the motion, finding that the accumulation of rental arrears did not constitute demonstrable and unusual hardship for the landlord.

Furthermore, lifting the stay would likely render the tenant homeless and remove his incentive to pursue the judicial review, which could ultimately result in the arrears being paid.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order.

The tenant had previously failed to comply with conditions of an adjournment, resulting in the lifting of a stay of eviction and the tenant vacating the unit.

The court declined to quash the appeal, finding it was not so clearly devoid of merit as to warrant dismissal without a hearing.

However, the court ordered the tenant to perfect the appeal by a specified date, failing which it would be dismissed, and awarded costs of $2,500 to the landlord.

Following dismissal of a motion for summary judgment, the defendant sought costs of approximately $18,500 and argued the plaintiff acted unreasonably in bringing the motion.

The court considered Rules 20.06 and 57.01 of the Rules of Civil Procedure and the conduct of the parties regarding whether examinations for discovery should occur before the motion.

The plaintiff had proposed delaying the motion to conduct discoveries, consistent with guidance from appellate authority on summary judgment procedure, but the defendant opposed that approach.

The court held it was unreasonable for the defendant to resist discovery and then seek costs on the basis that the motion was improperly pursued.

Costs of the motion were therefore reserved to the trial judge.

The plaintiff bank brought a motion for summary judgment seeking recovery of a mortgage deficiency following a power of sale and dismissal of the defendant’s counterclaim.

The defendant alleged she had been subjected to undue influence by a third party and that both the bank’s representative and the lawyer acting jointly for the lender and borrower knew of the arrangement and of a prior impersonation fraud involving her identity.

The court found that the record raised serious credibility issues and factual disputes regarding undue influence, potential misrepresentation, and the conduct of the joint solicitor.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court held that a full appreciation of the evidence required a trial.

The motion for summary judgment was therefore dismissed.

The tenant brought a motion to set aside the registrar's dismissal of his appeal, extend the time to perfect the appeal, and for an order allowing re-entry into the premises.

The underlying appeal was from a Landlord and Tenant Board decision.

The Divisional Court dismissed the motion, finding that the appeal was an attempt to relitigate factual findings rather than raising a question of law, and noting the tenant's failure to take any steps to perfect the appeal for over a year.

The balance of convenience favoured the landlord.

The appellant landlord appealed a decision of the Landlord and Tenant Board that found it lacked jurisdiction to proceed with an eviction application.

Prior to the appeal hearing, the landlord obtained an order requiring the tenants to pay rent, failing which a Writ of Possession would issue.

The tenants failed to pay and were evicted.

The Landlord and Tenant Board, as intervenor, brought a preliminary motion to dismiss the appeal as moot.

The Divisional Court agreed, finding that the execution of the Writ of Possession effectively terminated the tenancy, the dispute had disappeared, and there were no circumstances warranting the exercise of discretion to hear the moot appeal.

The landlords appealed a decision of the Landlord and Tenant Board dismissing their application to evict a tenant for the landlord's own use.

Although the Board found the application was made in good faith, it refused the eviction under s. 83(1) of the Residential Tenancies Act, 2006, finding that eviction would be more unfair to the vulnerable tenant than denying the landlord's application.

The Divisional Court applied a reasonableness standard of review and held that the Board did not err in principle by weighing the overall circumstances and unfairness to both parties.

The appeal was dismissed.

The tenant appealed a Review Order of the Landlord and Tenant Board that denied his request to review an eviction order for rent arrears.

The tenant sought to dispute the loss of his rent-geared-to-income subsidy.

The Divisional Court dismissed the appeal, finding that the Board correctly determined it lacked jurisdiction under s. 203 of the Residential Tenancies Act to review decisions concerning eligibility for rent-geared-to-income assistance under the Social Housing Reform Act.

The Board's refusal to grant an adjournment was also found to be reasonable.

The landlord appealed a decision of the Ontario Rental Housing Tribunal which stayed its application to evict the tenant.

The tenant had breached a mediated settlement regarding rent arrears and subsequently filed for bankruptcy.

The Tribunal held that the eviction application was a claim provable in bankruptcy and thus stayed under section 69.3 of the Bankruptcy and Insolvency Act.

The Divisional Court allowed the appeal, finding that the landlord's application sought only eviction, not the payment of arrears, and therefore was not a claim provable in bankruptcy.

The matter was remitted to the Tribunal for a new hearing.