CITATION: Morguard Residential v. Asboth, 2017 ONSC 387
DIVISIONAL COURT FILE NOS.: 219/16, 220/16, 236/16, 237/16 and 238/16
LANDLORD AND TENANT BOARD FILE NOS.: TSL-50662, TSL-50665,
TSL-51643, TSL-50661 and TSL-50666
DATE: 20170202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, RADY and THORBURN JJ.
BETWEEN:
Div. Ct. File No. 219/16
MORGUARD RESIDENTIAL
Applicant Landlord
(Respondent in Appeal)
– and –
SUSANNE ASBOTH
Respondent Tenant
(Appellant)
– and –
LANDLORD AND TENANT BOARD
Intervener
AND BETWEEN:
Div. Ct. File No. 220/16
MORGUARD RESIDENTIAL
Applicant Landlord
(Respondent)
– and –
BRUCE ANELEVITZ
Respondent Tenant
(Appellant)
– and –
LANDLORD AND TENANT BOARD
Intervener
AND BETWEEN:
Div. Ct. File no. 236/16
MORGUARD RESIDENTIAL
Applicant Landlord
(Respondent)
– and –
DAVID MANDEL
Respondent Tenant
(Appellant)
– and –
LANDLORD AND TENANT BOARD
Intervener
AND BETWEEN:
Div. Ct. File no. 237/16
MORGUARD RESIDENTIAL
Applicant Landlord
(Respondent)
– and –
FRANCES McGEACHY
Respondent Tenant
(Appellant)
– and –
LANDLORD AND TENANT BOARD
Intervener
AND BETWEEN:
Div. Ct. File no. 238/16
MORGUARD RESIDENTIAL
Applicant Landlord
(Respondent)
– and –
JOAN DARLING
Respondent Tenant
(Appellant)
– and –
LANDLORD AND TENANT BOARD
Intervener
Robert Doumani and Vedran Simkic, for the applicant landlord (respondent in appeal)
Karen Andrews, for the respondent tenant (appellant) Susanne Asboth
Margaret Leighton and Eli Fellman, for the intervener the Landlord and Tenant Board
Allyson Fox and Allan Rouben, for the appellants Bruce Anelevitz, David Mandel, Frances McGeachy and Joan Darling
HEARD: November 10, 2016
M. DAMBROT J.:
[1] Each of the five appellants brings an appeal under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) from the following orders of the Landlord and Tenant Board (the “Board”):
An order dated February 13, 2015 terminating the tenancy of each of the appellants (the “Eviction Order”);
Orders dated January 4, 2016 denying each of the appellants relief from eviction under s. 83 of the Act (the “s. 83 Orders”); and
Orders dated April 21, 2016 denying review of the Eviction Order and the s. 83 Orders (the “Review Orders”).
[2] All five appellants ask this Court to set aside these orders and dismiss the landlord’s application to terminate their respective tenancies, or, in the alternative, to remit the matter to the Board for a rehearing before a differently constituted panel.
Background
[3] This matter involves the demolition and redevelopment of a rental property known as the Heathview. After several hearings before the Ontario Municipal Board (the “OMB”), as a condition for being granted a building permit, the respondent landlord entered into an agreement with the City of Toronto under s. 37 of the Planning Act, R.S.O. 1990, c. P.13 (the “s. 37 Agreement”). Under the s. 37 Agreement, once the redevelopment was completed, the respondent landlord had to provide the displaced tenants from the original building with replacement units in a newly constructed building at a specified rent and to compensate them for moving costs. The s. 37 Agreement provides that the landlord must serve on the tenants a Ready for Occupancy Notice before the replacement building is ready for occupancy. The Ready for Occupancy Notice must then be filled out by the tenant in order for the rest of the process of returning the tenant to the replacement building to proceed. Although not required to do so by the s. 37 Agreement, the respondent landlord also offered to make available to the tenants temporary relocation rental units at reduced rent in other buildings owned by the landlord. The appellants each took up this offer, and were relocated to units in a building known as the Colonnade at 131 Bloor St. West in Toronto.
[4] According to the tenancy agreements for the temporary relocation units, the tenants were to vacate the temporary units once the newly redeveloped replacement building was ready for occupancy. The dispute before us arose when some of the tenants – now the appellants on this appeal – refused to engage in the process of vacating the temporary units and moving into the Heathview after receiving Ready for Occupancy Notices from the landlord. The appellants maintain that the temporary relocation units were not part of the requirements imposed by the City in the s. 37 Agreement, and were not, in fact, temporary. They claim that the respondent landlord provided them with the new units of its own accord, to maintain its rent revenues, and is not entitled to orders terminating their tenancies or orders evicting them.
The Eviction Order Dated February 13, 2015
[5] On February 24, 2014, the landlord gave notice to the appellants, in Form N5, of its intention to terminate their respective tenancies at the Colonnade pursuant to s. 64 of the Act (the “N5 notices”). Section 64(1) of the Act provides:
A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
[6] In the N5 notices, the landlord alleged that the tenants had each substantially interfered with: (1) the reasonable enjoyment of the residential complex by the landlord or another tenant; and (2) another lawful right, privilege or interest of the landlord or another tenant.
[7] The landlord specified in the notices that the units in question were provided as temporary accommodation pending completion of rental replacement units pursuant to an agreement with the City, that Ready for Occupancy Notices had been sent to the tenants but they refused to proceed in a timely manner, and that as a result the reasonable enjoyment of the complex by the landlord, as well as another right of the landlord, were substantially interfered with. While interference with the rights of other tenants was also mentioned in the notices, this was clearly surplusage. The notices further provided that if the appellants did not correct the problem within seven days, the landlord could apply to the Board to have the tenants evicted.
[8] The appellants did not “correct the problem” within seven days, and the landlord brought an application to the Board pursuant to s. 69(1) of the Act for an order terminating the tenancies of the appellants and evicting them.
[9] The application was heard by Board Member Rozehnal. In a decision issued on February 13, 2015, the member determined that the appellants’ failure to proceed with their planned return to the Heathview was substantially interfering with a lawful right, privilege or interest of the landlord. She adjourned the hearing to permit the tenants to lead further evidence in order to address the question of relief from eviction pursuant to s. 83 of the Act.
[10] In her reasons, the member drew the following conclusions:
In addition to entering into agreements with the appellants offering each of them a lease in a unit in the Heathview at a reduced rate once renovation was completed and moving costs to and from temporary replacement homes, the landlord made available to the appellants temporary replacement units in other buildings it owned.
This arrangement was explicitly recognized in the tenancy agreements entered into by the appellants with respect to the temporary units in the Colonnade.
The appellants were refusing to honour their agreements. The landlord had served a Replacement Building Notice on each of the appellants but the appellants failed to turn over vacant possession as they had agreed to and instead wished to remain in the temporary replacement units.
As a result, the landlord brought this application, in an effort, in effect, to force the appellants to honour their agreements.
The reference to a breach of the agreement between the City and the landlord to which the appellants are not parties in the N5 notices is immaterial and does not render the N5 notices invalid. The complaint in the N5 notices is the appellants’ refusal to proceed with the reoccupation of the Heathview as contemplated by their tenancy agreements. It is very clear what conduct on the part of the appellants is complained of.
The landlord is suffering and will continue to suffer the loss of rental income on empty rental units being held for the appellants.
The breach of a consensual provision in a tenancy agreement can fall within the scope of s. 64 of the Act and can constitute substantial interference with the landlord’s lawful rights.
Although an agreement between a landlord and a tenant to terminate a tenancy is void if entered into at the time the tenancy agreement is entered into or as a condition of entering into the tenancy agreement by virtue of s. 37(5) of the Act, and although s. 3(1) of the Act prohibits landlords and tenants from waiving their rights under the Act, in the circumstances here, s. 37(5) does not apply.
The purpose of s. 37(5) is to prevent landlords from circumventing the security of tenure provisions and notice of termination requirements of the Act. In the circumstances here the landlord is not seeking to escape security of tenure. Its intention is simply to return the appellants to their now redeveloped original homes.
It would be contrary to public policy to find that s. 37(5) applies. By signing the Colonnade tenancy agreements with the landlord the appellants were accepting a regime that constituted betterment. They cannot now rely on the lesser rights and protections bestowed upon them by the Act to thwart the OMB, the City and the landlord.
The S. 83 Orders Denying Relief from Eviction
[11] I noted that after making the February 13, 2015 eviction order, the member adjourned the hearing to permit the tenants to lead further evidence in order to address the question of relief from eviction pursuant to s. 83 of the Act. Section 83(1) gives the Board a general discretion to postpone or refuse eviction, and s. 83(3) makes it mandatory to refuse eviction in certain circumstances, including where the landlord is in serious breach of its responsibilities under the Act and where the landlord has brought the application because the tenant has attempted to secure or enforce his or her legal rights.
[12] The applications of four of the appellants for relief were heard on June 9 and September 22, 2015, and the application of the fifth appellant was heard on November 18, 2015. On January 4, 2016, the member issued five separate decisions refusing the relief requested.
[13] With respect to the mandatory grounds for relief from eviction, she found, in each case, that the tenants had failed to meet their onus of establishing that the landlord filed the eviction applications because the tenants had attempted to secure their legal rights or that the landlord was in any serious breach of the Act.
[14] With respect to discretionary relief from eviction, the member found that the allegation that it would be unfair to evict the tenants because they would be homeless if evicted was not supported by the evidence. In particular, she noted that although the appellants had lost their right to move into the Heathview by failing to complete the Ready for Occupancy Notices, the landlord was continuing to hold new units available to them, and undertook to do so for 30 day after the issuance of the order. She also rejected the other grounds advanced by the appellants for discretionary relief. One of these related to the calculation of the financial losses suffered by the landlord as a result of the appellants’ refusal to move. The member said that, whether or not the numbers she had mentioned in her decision of February 13, 2015 were correct, the fact remained that the landlord was suffering losses.
[15] Finally, the member concluded that refusing eviction would not be in the public interest. She found that the agreement between the landlord and the appellants was the result of a lengthy approval process where conditions were imposed on the landlord by the OMB and the City. The landlord was attempting to fulfill those conditions. The appellants, by refusing to comply with the process and their obligations, were attempting to thwart the approval process, take advantage of the benefits bestowed upon them by the s. 37 Agreement that they would not otherwise have had, and avoid the corresponding responsibilities.
[16] In the result, although the member refused relief from eviction, she did postpone the termination of the tenancies and the evictions until February 3, 2016 (until March 3, 2016 with respect to Ms. Asboth and Ms. Darling).
The Review Orders
[17] On January 11, 2016, the appellants each requested a review of the Eviction Order and the s. 83 Order made in respect of each of them, and a stay of the s. 83 Orders pending the review. The stay was granted, and the requests for review were heard together by Board Member Lang on February 11, 2016. On April 21, 2016, she denied the requests. The decisions with respect to each appellant were essentially identical.
[18] The appellants raised the following grounds for review:
The member erred in law by finding that s. 37(5) of the Act does not apply to the appellants’ tenancy agreements.
The member erred in law by failing to find that the N5 notices disclosed no basis for eviction.
The member erred in fact by overstating the landlord’s financial losses.
The member erred in fact by failing to consider that the replacement building was not complete at the time that the Ready for Occupancy Notices were sent to the appellants.
The member erred in making determinations under s. 83(1)(a) of the Act by misinterpreting an undertaking given by the landlord or by misinterpreting the undertaking’s effect.
[19] I will briefly set out the member’s conclusions in respect of each of these issues.
Did the member err in law by finding that s. 37(5) of the Act does not apply to the appellants’ tenancy agreements?
[20] On this issue, the reviewing member noted that it was uncontested that the provisions in the tenancy agreements that require the tenant to give vacant possession of the relocation unit once the replacement building is ready for occupancy are void by operation of s. 37(5) of the Act.
[21] Section 37(5) provides:
An agreement between a landlord and tenant to terminate a tenancy is void if it is entered into,
(a) at the time the tenancy agreement is entered into; or
(b) as a condition of entering into the tenancy agreement.
[22] However the reviewing member went on to say that s. 37(5) was not a bar to the termination of the tenancies in this case because the landlord did not rely on the termination provisions in the tenancy agreements, and as a result, s. 37(5) was not engaged. Instead the landlord relied on ss. 1 and 202(1) of the Act. Section 1 provides:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.
[23] Section 202(1) provides:
In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.
[24] The reviewing member held that it was not contrary to the Act to terminate the appellants’ tenancies when the application was approached from the perspective of s. 1, which calls for a balancing of the rights and responsibilities of landlords and tenants, and s. 202(1), which requires the Board to ascertain the real substance of all transactions relating to a rental unit and permits it to disregard the outward form of a transaction and have regard to the pattern of activities relating to a unit.
[25] The pattern of activities here was that as a result of the s. 37 Agreement between the landlord and the City, the tenants received certain benefits, but in addition, the landlord augmented those entitlements by providing the tenants a place to live at a reduced rent during construction. This offer was accepted by the tenants on the explicit understanding of all parties that the tenants would vacate the temporary residences once construction was completed and could, if they wished, move into the replacement building. By refusing to engage in the process that would lead to vacating the temporary residences, the tenants repudiated their obligations under the relocation plan and were not acting in good faith.
[26] Although articulated differently, the original order was consistent with this analysis. Whether or not the termination provision was void, the landlord did not rely on it, and the application was properly granted.
Did the member err in law by failing to find that the N5 notices disclosed no basis for eviction?
[27] The reviewing member found that the member did not make a serious error in finding that the N5 notices were sufficient. There was a sufficient nexus between the behavior alleged in the N5 notices and the evidence submitted at the hearing to reach this conclusion.
Did the member err in fact by overstating the landlord’s financial losses?
[28] The member found that the landlord was losing $33,675 per month with respect to the five units being held for the appellants at the replacement building, and $18,290 per month with respect to the reduced rent at the temporary relocation units. The reviewing member concluded that these figures were overstated. The actual losses were $4,250.78 and $4,786.57 respectively. However she found that the error was not material to the outcome of the matter. The appellants’ failure to complete the relocation plan process was causing the landlord to lose over $50,000 per year even if only the amounts lost because of the reduced rent in respect of the temporary relocation units were taken into account, which still constituted a substantial interference with the reasonable enjoyment or lawful right, privilege or interest of the landlord.
Did the member err in fact by failing to consider that the replacement building was not complete at the time that the Ready for Occupancy Notices were sent to the tenants?
[29] The appellants argued before the member that since the replacement units were not complete at the time that the Ready for Occupancy Notices were sent to them, the landlord’s legal interest that forms the basis for the N5 notices had not yet crystallized and no finding could be made of substantial interference with that interest.
[30] The reviewing member rejected this argument on the basis that by virtue of paragraph 3.16(1) of the s. 37 Agreement, the Ready for Occupancy Notices had to be served at least 180 days before the replacement units were ready for occupancy. As a result, it did not matter that the building was not complete when those notices were served. While the Replacement Building Notices under the Colonnade tenancy agreements had to be served when the replacement building was ready for occupancy, the Ready for Occupancy Notices did not. It was the Ready for Occupancy Notices that were relevant, and so no error of fact was made by the member.
Did the member err in making determinations under s. 83(1)(a) of the Act by misinterpreting an undertaking given by the landlord or by misinterpreting the undertaking’s effect?
[31] The reviewing member listened to the tape recording of the hearing and concluded that the member did not misinterpret the undertaking to hold the appellants’ units at the replacement building for 30 days. Nor did the member misinterpret the effect of the undertaking.
The Issues on Appeal
[32] The appellants raise the following issues on this appeal:
Whether the N5 notices that began the eviction process were invalid as they provided insufficient particulars.
Whether the Board erred in its interpretation and application of s. 37(5) of the Act.
Whether the Board erred in law by finding that the failure of the tenants to vacate pursuant to an agreement to terminate that was void in law substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord.
Whether the Board misconstrued or improperly weighed evidence.
The Standard of Review
[33] Section 210 of the Act provides that a party may appeal an order of the Landlord and Tenant Board to the Divisional Court, but only on a question of law. Two decisions of the Court of Appeal for Ontario (First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54, 330 D.L.R. (4th) 461, at para. 21, and Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, 349 O.A.C. 253, at para. 31) and a long line of decisions of this Court have confirmed that decisions of the Landlord and Tenant Board interpreting its home statute are subject to review on the standard of reasonableness. Despite this, the appellants argue that the standard of review on this appeal is correctness.
[34] In particular, counsel for Ms. Asboth argues, in her factum, that the standard of review on statutory appeals of administrative decisions such as this one is distinct from the standard of review on judicial review. She argues that the standard of review applicable to questions of law on statutory appeals from both administrative and judicial decisions is correctness, in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, even when a home statute is being interpreted. Finally, in reliance on three per incuriam statements of this Court, in each case delivered without analysis, counsel for all of the appellants assert that this Court continues to apply a correctness standard on questions of law arising from decisions of the Landlord and Tenant Board.
[35] This argument is wrong. There can be no doubt about the standard of review in relation to the Landlord and Tenant Board’s interpretation of the Act. Nor is it arguable more generally that the presumption that the standard of review with respect to questions of law relating to a home statute is reasonableness applies only to judicial review, and not to statutory appeals. If that argument had not previously been clearly rejected, it was laid to rest in the recent decision of the Supreme Court of Canada in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, 8 Admin. L.R. (6th) 179. In a discussion of the standard of review applicable to decisions of tribunals, Karakatsanis J. stated, for the majority, at para. 22:
Unless the jurisprudence has already settled the applicable standard of review (Dunsmuir, at para. 62), the reviewing court should begin by considering whether the issue involves the interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness (Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46). This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.
[36] She then considered whether or not the standard of review on a statutory appeal from an administrative decision differs from the standard of review on an application for judicial review. She stated, at paras. 27-30:
The Court of Appeal concluded that when the decisions of a tribunal are subject to a statutory right of appeal (or a right to apply for leave to appeal), rather than ordinary judicial review, the standard of review on such appeals is correctness. It determined that a statutory appeal should be recognized as “an addition to or a variation of” the list of correctness categories enumerated in Dunsmuir (Court of Appeal reasons, at para. 24). Slatter J.A. reasoned that the existence of a statutory right of appeal is a strong indication that the legislature intended the courts to show less deference than they would in an ordinary judicial review.
I disagree. In my view, recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court.
At least six recent decisions of this Court have applied a reasonableness standard on a statutory appeal from a decision of an administrative tribunal (McLean; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, [2015] 3 S.C.R. 219).
In Saguenay, this Court confirmed that whenever a court reviews a decision of an administrative tribunal, the standard of review “must be determined on the basis of administrative law principles . . . regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal” (para. 38, per Gascon J.; see also Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 17, 21, 27 and 36; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 2 and 21).
[37] Having determined that the standard of review is reasonableness, I turn to the issues raised by the appellants.
Analysis
1. Were the N5 notices that began the eviction process invalid as they provided insufficient particulars?
The appellants argue that the N5 notices did not disclose the basis for eviction and the particulars upon which the landlord relied at the eviction hearing. As a result, the appellants did not know the case they had to meet. Therefore, it is submitted, the notices were void.
[38] The sufficiency of a notice such as an N5 notice is not a question of law alone. However the complete absence of grounds for eviction in an N5 notice undoubtedly is. In this case, while the validity of the N5 notices was challenged at the initial hearings before the Board, and again on review, the precise argument made before this Court does not appear to have been previously made. As a general rule, arguments raised for the first time on appeal will not be entertained. In any event, in this case, I am satisfied that the notices clearly set out the circumstances under which the termination of the tenancies was sought, and the appellants knew the case they had to meet. The conclusion reached by the member that the notices were sufficient was reasonable. I would not give effect to this ground of appeal.
2. Did the Board err in its interpretation and application of s. 37(5) of the Act?
[39] The appellants submit that the Board erred in law by failing to apply s. 37(5) of the Act and failing to find that the termination provisions in the Colonnade tenancy agreements were void as contrary to that section. In addition, the appellants argue that in accordance with s. 4(1) of the Act, any contractual provision that is inconsistent with the Act is void.
[40] I have already set out s. 37(5) of the Act. Section 4(1) provides:
Subject to section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.
[41] I am unable to conclude that the member or the reviewing member erred in law in their approach to this issue. Section 37(5) is designed to protect the security of tenure of tenants by ensuring that tenants cannot be induced to contract out of their rights at the time when they enter into a tenancy agreement. Specifically, having regard to the fact that landlords and tenants are often not in an equal bargaining position when leases are negotiated, s. 37(5) precludes landlords from extracting tenancy termination agreements at the time leases are signed. (See Clandfield v. Queen’s University (Apartment and Housing Services) (2001), 2001 4969 (ON CA), 54 O.R. (3d) 475, 200 D.L.R. (4th) 475 (C.A.), which dealt with an identical provision in the predecessor Tenant Protection Act, 1997, S.O. 1997, c. 24.)
[42] But this case is quite different. The landlord and tenant relationship between the parties in this case pre-existed the tenancy agreement. It was suspended by the redevelopment of the Heathview, but the tenants had the right to return to the premises upon completion and continue the relationship. The landlord gratuitously offered to continue the landlord and tenant relationship in alternative accommodation at the Colonnade in the interim, at a reduced rent, and the tenants accepted the offer. The agreement to terminate the temporary tenancy when the redevelopment was complete was reached as part of this overall agreement, and not separately at the time the Colonnade tenancy agreement was entered into or as a condition of entering into it. The Colonnade tenancy agreement was not a stand-alone agreement. It cannot be interpreted in isolation from the overall relationship of the parties.
[43] Given this circumstance, the reviewing member did not err in using s. 202(1) as a vehicle to disregard the form of the transaction under consideration and give effect to the true intentions of the parties, which did not in any sense violate the purpose of s. 37(5).
[44] I am of the view that the member did not reach an unreasonable conclusion regarding the interpretation of s. 37(5) and that the reviewing member did not reach an unreasonable determination regarding the scope or the use that can be made of s. 202(1). I would not give effect to this ground of appeal.
3. Did the Board err in law by finding that the failure of the tenants to vacate pursuant to an agreement to terminate that was void in law substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord?
[45] The appellants argue that the Board erred in law when it found that, by refusing to vacate the temporary units, they interfered with the landlord’s lawful rights, having regard to the fact that those rights were predicated on clauses in the Colonnade tenancy agreements that were void under the Act.
[46] The respondent landlord submits that the Board properly considered the real substance of the matter and the good faith of the participants and made a legally and factually defensible finding that, as part of the overarching agreement between the parties, the appellants received benefits well in excess of the compensation required to be provided under the Act, one of which benefits was the right to occupy a rental replacement building. The appellants exercised that right and then resiled from the agreement. In addition, the respondent relies on several decisions of the Board and this Court for the proposition that it is appropriate for the Board to take into account the interplay between termination proceedings and the land-use planning process.
[47] As I understand the appellants’ argument in relation to this issue, it substantially overlaps with their second argument, which I have just discussed. The member and the reviewing member rejected this argument, and I have found that their approach to the issue was reasonable. I would not give effect to this ground of appeal.
4. Did the Board misconstrue or improperly weigh evidence?
[48] The appellants submit that the Board misconstrued or improperly weighed the evidence in relation to the following matters:
The landlord’s financial losses stemming from the appellants’ failure to vacate their temporary units.
The appellants’ bad faith.
Failing to consider on the s. 83 application for relief from eviction Ms. Asboth’s advanced age and the effect that moving homes has on senior citizens.
The form of the Ready for Occupancy Notice.
[49] This issue does not raise any question of law. I would not give effect to it.
Disposition
[50] These appeals are dismissed. Counsel may make brief written submissions regarding costs. The respondent’s submissions will be filed within 21 days of the release of this judgment. The appellants’ submissions will be filed within 14 days of receipt of the respondent’s submissions.
___________________________ DAMBROT J.
I agree. ___________________________
RADY J.
I agree. ___________________________
THORBURN J.
RELEASED: February 2, 2017