COURT OF APPEAL FOR ONTARIO
Roberts, Coroza and Rahman JJ.A.
BETWEEN
Khurram Shafiq
Applicant (Respondent)
and
Blair Ramsay* Jane Wright
Respondent (Appellant*)
John Done, William Florence and Lauren Thompson, for the appellant
No one appearing for the respondent, Khurram Shafiq
Anna Solomon, for the Landlord and Tenant Board
Heard: January 19, 2026
On appeal from the order of the Divisional Court (Regional Senior Justice Mark L. Edwards, Justices M. Gregory Ellies and Wendy M. Matheson), dated May 2, 2025, with reasons reported at 2025 ONSC 3599.
I. Overview
1This appeal involves the statutory interpretation of s. 71.1 and of the phrase “reasonably able to participate”, for the purpose of determining whether a Board order should be reviewed under s. 209(2) of the Residential Tenancies Act (“RTA”), 2006, S.O. 2006, c. 17.1
2In April 2022, the appellant2 was served with an N12 notice under s. 71.1 of the RTA to vacate the rental unit for the respondent landlord’s own use. The appellant failed to attend the hearing of the landlord’s eviction application before the Landlord and Tenant Board (the “Board”) because, according to the appellant, he did not receive the notice of hearing. After proceeding with an uncontested hearing, the Board terminated the tenancy and issued an eviction order. The Board dismissed both the appellant’s requests to review its decision. The Board’s decision was upheld on appeal to the Divisional Court.
3The appellant appeals from the Divisional Court’s order on two grounds, which I would frame as follows:
(1) The Board and the Divisional Court affirmed an incorrect interpretation of s. 71.1 of the RTA. The eviction application was invalid because, contrary to s. 71.1 of the RTA, it did not contain details of all previous N12 notices that the landlord had served within two years of the eviction application. As a result, the Board erred in giving effect to the April 2022 N12 notice and in terminating the tenancy and ordering the appellant’s eviction. The Divisional Court erred in upholding the Board’s decision.
(2) The Board and the Divisional Court erred in affirming an incorrect approach to “reasonably able to participate” for the purpose of s. 209(2) of the RTA. The Board and the Divisional Court erred in narrowly assessing only whether the appellant should had received notice of the hearing rather than broadly considering whether the appellant had been “reasonably able to participate” pursuant to s. 209(2) of the RTA. The appellant was denied procedural fairness.
4For the reasons that follow, I would allow the appeal. The eviction application was invalid because of the landlord’s failure to include details of a previously served N12 notice. Moreover, the Board’s interpretation of “reasonably able to participate” under s. 209(2) was overly narrow and failed to consider all relevant circumstances and was therefore incorrect. The Board erred in hearing and deciding the eviction application and the Divisional Court erred in upholding the Board’s decision. Both orders should be set aside and the eviction application should be quashed. As the April 2022 N12 notice has now expired, if the landlord wishes to proceed, he will have to properly serve a new N12 notice.
II. Background
5Since April 1, 2012, the appellant has been a tenant of the rental unit (“the Unit”) owned by the respondent, Khurram Shafiq (“the landlord”).
6On July 1, 2021, the landlord served the appellant with an N12 notice under s. 48 of the RTA, requiring the appellant to vacate the Unit for the landlord’s own use by August 31, 2021, giving less than the required 60 days’ notice. In that notice, the landlord indicated that he and his parents intended to move into the Unit.
7The landlord did not proceed with that notice, explaining that his wife’s immigration status was uncertain at that time. He served the appellant with a second notice on April 10, 2022, requiring the appellant to vacate the Unit for the landlord’s own use by June 30, 2022. In the April 2022 notice, the landlord indicated that he alone wanted to move into the Unit.
8The landlord filed an eviction application with the Board on July 27, 2022. He checked off the box on the application form that he had not given any other N12 notices in the past two years and made no reference to the July 2021 N12 notice.
9The hearing of the eviction application took place before the Board on March 20, 2023. The appellant did not attend. The Board noted in its reasons that:
As of 10:41 a.m., the Tenants were not present or represented at the hearing although properly served with notice of this hearing by the LTB. There was no record of a request to adjourn the hearing. As a result, the hearing proceeded with only the Landlord’s evidence.
10The Board accepted the landlord’s uncontested testimony:
The Landlord testified that he requires a larger space as his parents have moved in with him. The rental unit is a 3-bedroom unit which is close to the Landlord’s employment downtown. It is the largest of the rental units that the Landlord owns, and it is for this reason that he requires this particular unit. He testified that he intends to live in the unit for at least one year.
11By order dated August 18, 2023, the Board terminated the tenancy and granted an eviction order, effective August 29, 2023.
12On September 11, 2023, the appellant sought a review of the Board’s order on the following bases: 1) the appellant was not reasonably able to participate in the hearing because he had not received the April 2022 N12 notice, the eviction application or notice of the March 20, 2023 hearing; or, alternatively, because the appellant suffers from significant cognitive impairments, reads poorly, has difficulty understanding legal documents and, without legal representation, does not have the capacity to engage in a legal proceeding; and 2) the landlord had failed to comply with s. 71.1 of the RTA and include details of all previous N12 notices in his eviction application.
13The Board dismissed the appellant’s review request on December 15, 2023. The Board accepted the landlord’s testimony that he urgently required the Unit for his own use as he and his wife were expecting their first child and they were currently living in another 3-bedroom home that they owned with his parents and his two college-aged nieces.
14The Board found that the landlord had personally served the appellant with the April 2022 N12 notice and eviction application. Notice of the March 20, 2023 hearing had been properly served because “a review of the Board[’]s files” indicated that the notice of hearing was mailed to the appellant and his co-tenant on February 25, 2023, and there was no indication that the mail had been returned as undelivered.
15Moreover, the Board was not satisfied that the appellant had not received the notice of the March 20, 2023 hearing because the appellant had received other Board mail, including the notice of the review hearing. The Board found that the appellant failed to regularly check his mail.
16The Board also rejected the appellant’s argument that the eviction application was invalid because the landlord failed to include details of the previous July 2021 notice in his eviction application. The Board accepted the landlord’s “oversight” for failing to disclose details of the previous notice because “at the time [he] believed it wasn’t necessary owing to his own inexperience and the fact he never filed an L2 application until he had served the [April 2022] N12 notice.”
17The Board concluded as follows:
Regarding the issue of the previous N12 Notice, it has no bearing on the matter before me and does not constitute a serious error as submitted. If it was to be raised as an issue, it should have or could have been raised at the March 20, 2023, hearing. Furthermore, I accept the Landlord’s explanation for his failure to disclose on the L2 Application. The failure to disclose it on the L2 application had no prejudicial effect upon the Tenants as they were aware of both N12 notices as they had both been served upon them by the Landlord.
18On January 12, 2024, the appellant requested a review of the December 15, 2023 review order. The Board exercised its discretion to conduct a second review without an oral hearing. On January 18, 2024, the Board dismissed the second review.
19After referencing the provisions of s. 71.1(3) of the RTA that require the landlord to include details of previously served N12 notices, the Board rejected the appellant’s argument that the landlord’s failure to do so here did not automatically invalidate the eviction application, reasoning as follows in paras. 5-10:
Section 71.1(4) of the Act states that the Board shall refuse to accept the application for filing if the Landlord has not complied with the requirements of section 71.1(3). The Act does not indicate what happens if after the application is accepted for filing it becomes clear that the Landlord provided inaccurate information about the previous notices served.
I note that the Act states explicitly in section 83(4) that the Board shall not issue an eviction if a landlord has not complied with the Act’s compensation requirements. The Act does not establish the same prohibition on eviction if the Landlord does not disclose the existence of previous notices or provides inaccurate information about them.
Based on my review of the Act I do not find that failing to disclose a previous N12 or N13 notice necessitates that a landlord’s application must be dismissed, although a dismissal is a potentially available remedy. However, another available result is that the application proceeds. The issue of lack of disclosure could also be relevant in determining a landlord’s credibility and the good faith nature of their intent.
I find it reasonable for the reviewing member to have considered the reason for the lack of disclosure and the prejudice that the Tenants experienced as a result. In this case the reviewing member found that the Landlord failed to disclose the previous notice because of his inexperience with the application he filed and that the failure to disclose the prior notice had no prejudicial effect on the Tenants because they were the recipients of the prior notice and therefore were already aware of its existence.
The reviewing member's determination that the original order did not contain a serious error was reasonable. Reasonable determinations will not be interfered with on review. The member's determination also does not conflict with any binding decision that I am aware of and the request to review does not refer to any binding decision for my consideration.
For those reasons I do not find that the review order contains any serious errors. [Emphasis added.]
20Neither the first nor second review addressed the appellant’s submission that he was not reasonably able to participate because he did not have the capacity to engage in a legal proceeding due to his personal circumstances.
21On May 2, 2025, the Divisional Court dismissed the appellant’s appeal, without costs, and ordered that the eviction shall not be enforced for 30 days. The Court held that it was bound by Arguelles v. Estate of Ann Miller, 2025 ONSC 112 (Div. Ct.) (“Arguelles (Div. Ct.)”), with respect to the consequences of the landlord’s failure to include details of previous N12 notices pursuant to s. 71.1, and therefore rejected the appellant’s argument that the failure to disclose details of previous N12 notices invalidated the eviction application. The Court also held that the Board’s finding that the notice of hearing had been served on the appellant was a factual finding that could not be appealed.
III. Analysis
a. Standard of Review
22For the purposes of this appeal, this court asks whether the Divisional Court identified the appropriate standard of review and applied it correctly: Smith v. Youthlink Youth Services, 2022 ONCA 313, 469 D.L.R. (4th) 673, at para. 16; Honsberger v. Great Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th) 1, at para. 17. To do so, this court steps into the shoes of the Divisional Court and focuses on the correctness of the original Board decision: Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, 132 O.R. (3d) 295, at para. 27, leave to appeal ref’d, [2016] S.C.C.A. No. 397.
23An appeal from the Board’s decision is limited to questions of law and procedural fairness: s. 210(1) of the RTA. The Divisional Court’s failure to identify and address Board errors of law is an error of law: Elkins v. Van Wissen, 2023 ONCA 789, 168 O.R. (3d) 756, at para. 77. Questions of statutory interpretation are questions of law subject to correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; White v. Upper Thames River Conservation Authority, 2022 ONCA 146, 161 O.R. (3d) 13, at para. 7; Elkins, at para. 37. The standard of review on questions of procedural fairness is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 27, 30; Vavilov, at para. 37.
IV. Issues
i. Did the Board err in its interpretation of s. 71.1 of the RTA?
24The Board and the Divisional Court followed Arguelles (Div. Ct.). As I explained in Miller Estate v. Arguelles, 2026 ONCA 518(“Arguelles (ONCA)”), it was an error of law to treat as discretionary the mandatory consequences flowing from the failure to reference details of all previously served N12 notices in the eviction application, as required under s. 71.1. To do so undermines the remedial, tenant-focused purposes of the RTA and misreads the clear language of s. 71.1 of the RTA that requires details of the previously served N12 notices to be included and mandates that a failure to do so will result in a refusal to file the application. This is not a technical requirement but goes to the heart of the issues before the Board on a landlord’s own use eviction application under s. 48. I would adopt and apply here the entirety of my reasons in Arguelles (ONCA) as dispositive of the s. 71.1 issue.
25I would only add that the present case is even stronger. Unlike in Arguelles (ONCA), here, the Board did not amend the application to include details of the missing N12 notice. As such, the application was entirely defective and in clear breach of the requirements under s. 71.1(3). The Board appears not to have done so because it found that as the tenants were previously served with the missing July 2021 N12 notice, the landlord’s failure to disclose details of this notice in the application did not prejudice the tenants. However, focusing solely on whether the appellant suffered prejudice misreads the mandatory statutory requirements under s. 71.1, the context of s. 48, and the remedial purposes of the RTA. Notification of tenants is only one purpose of s. 71.1.
26The purpose of s. 71.1 of the RTA is, among others, to prevent abuse of the landlord’s own use provision under s. 48(1). The addition of s. 71.1 to the RTA was made through Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020, S.O. 2020, c. 16, Schedule 4. The Hansard Report for this Bill states that the intended purpose of s. 71.1 was to “help adjudicators at the [Board] to look for patterns and identify landlords who may be breaking the law.” The Board’s reasons ignored that important purpose.
27As a result, the landlord’s application for eviction should not have been admitted or considered by the Board. The eviction application is a nullity. I would set aside the Board’s decision, as well as the Divisional Court’s dismissal of the appeal. I would quash the eviction application. As the April 2022 N12 notice has now expired, it cannot support a new eviction application. If the landlord wishes to proceed, a new N12 notice will have to be properly served in accordance with the RTA.
ii. Did the Board err in law with respect to its finding that the appellant should have received the hearing notice and was therefore “reasonably able to participate” under s. 209(2) of the RTA?
28Section 209(2) of the RTA empowers the Board to review its orders, which are otherwise final and binding, as follows:
Without limiting the generality of section 21.2 of the Statutory Powers Procedure Act, the Board’s power to review a decision or order under that section may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding.
29As earlier noted, the appellant argues that he was not reasonably able to participate in the March 20, 2023 Board hearing of the eviction application because he had not received notice of the hearing and because of his disabilities.
30The Board did not accept that the appellant was not “reasonably able to participate”. The Board did not find that the appellant actually received the notice of the March 2023 hearing date. Rather, the Board’s reasons focussed on explaining why the appellant should have received the notice: the Board’s files indicate that it was mailed; the appellant had received other notices from the Board; and the appellant did not check his mail regularly, which, if he had, should have brought the notice to his attention.
31The Board’s findings as to why the appellant should have received the notice were open to it on the record and are not tainted by error in principle or a misapprehension of the evidence. As such, they do not represent an error of law that is subject to appeal under s. 210(1) of the RTA.
32Those findings, however, were not the end of the analysis. The Board should have determined: 1) whether the appellant was “reasonably able to participate” under s. 209(2), considering his disabilities; and 2) in any event, whether, under s. 83(1), the eviction should have been refused “having regard to all the circumstances”. Under s. 83(2), the Board’s consideration of all the circumstances was mandatory.
33The Board failed to address and determine these material issues. The Board erred by focusing narrowly on whether the appellant should have received the hearing notice. In so doing, the Board failed to address the appellant’s alternative explanation that his cognitive impairments precluded him from reasonably being able to participate, even if he had received the notice, and failed to consider all of the relevant circumstances and determine the overarching question of whether the eviction should be refused. The failure to address and determine material issues raised by the appellant is an error of law: Elkins, at paras. 38-39, 44, 67 and 76; Timbercreek Asset Management Inc. v. Soufi, 2024 ONSC 4041, at para. 24.
34This case is distinguishable from Abdalla v. Kooirala, 2023 ONSC 7106, where the tenants were found to be exploiting the appeal process to avoid paying rent. There was no evidence or allegation that the appellant was exploiting the appeal process in this case.
35The Board’s erroneously truncated analysis resulted in serious, procedural and substantive unfairness to the appellant.
36First, the appellant could not raise the invalidity of the N12 notice and the mandatory consequences that flowed under s. 71.1 of the RTA. Second and relatedly, he could not test the landlord’s evidence about his good faith intention to occupy the Unit. This was a significant loss. As earlier noted, the landlord’s reasons to occupy the Unit kept shifting from N12 notice to N12 notice, in his testimony before the Board on the eviction application, and then on the first review: the landlord variously needed the Unit for himself alone, for his wife and children, or for his parents.
37Finally, the appellant was denied the benefit of consideration of whether the eviction should be refused in all the circumstances under s. 83(1) of the RTA. These circumstances included the disabilities of the appellant and his co-tenant Ms. Wright. They were referred to the Legal Clinic that represented them at the hearing by their family physician’s office. Counsel did not draft an affidavit for Ms. Wright because she did not seem capable of signing one. The transcript from the first Board review hearing reveals that Ms. Wright gave incoherent and unresponsive testimony to questions asked of her. This should have caused the Board to have serious issues about her capacity and her ability to reasonably participate in a hearing.
38The appellant had been a tenant for over 14 years. The tenancy was being terminated not because of any fault by the tenant, but because the landlord purported to terminate it under s. 48 for reasons that kept changing, without complying with the mandatory provisions of s. 71.1. The appellant asserted disabilities that prevented him from reasonably participating. The Board failed to consider any of these important issues. In the circumstances, the appellant was entitled to a hearing on the merits.
b. Conclusion
39The April 2022 N12 notice has expired. The eviction application is invalid and should be set aside, along with the Board’s and Divisional Court’s orders.
40The expiry of the April 2022 N12 notice and the invalidity of the eviction application do not preclude the landlord from serving the appellant with a new N12 notice, if the landlord still requires the Unit for his own use, nor from commencing a new eviction application pursuant to the new N12 notice which complies with the RTA.
V. Disposition
41I would allow the appeal, set aside the orders of the Divisional Court and the Board, and quash the eviction application. The April 2022 N12 notice on which the eviction application was based has expired and cannot support an eviction application. If the landlord wishes to proceed, he will have to properly prepare and serve a new N12 notice and eviction application.
42I would grant the appellant costs from the landlord in the requested amount of $2,422.07, for the appeal, including the leave to appeal application.
Released: July 16, 2026 “L.B.R.”
“L.B. Roberts J.A.”
“I agree. S. Coroza J.A.”
“I agree. M. Rahman J.A.”
Footnotes
- This court granted leave to appeal on November 14, 2025, and directed the appeal to be heard at the same time as the appeal in Miller Estate v. Arguelles, 2026 ONCA 518 because of the overlapping issue of the statutory interpretation of s. 71.1 of the RTA.
- Jane Wright was previously a tenant but now resides in a nursing home so is no longer participating in these proceedings. She has abandoned her appeal. Accordingly, these reasons will only refer to the appellant.