2276761 Ontario Inc. v. Overall, 2018 ONSC 3264

CITATION: 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264

DIVISIONAL COURT FILE NO.: 02/16

DATE: 20180524

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

HARPER, MYERS, AND NEWTON JJ.

BETWEEN:

2276761 Ontario Inc.

Applicant/Respondent in Appeal

– and –

Barbara Overall and Peter Overall

Respondents/Appellants

Kristin Ley, lawyer for the Respondent

Philip B. Cornish and Jamie Hildebrand, lawyers for the Appellants

HEARD at London: April 12, 2018

F.L. Myers J.:

Background

[1] The appellants are tenants in the mobile home park owned by the respondent. The appellants own their own trailer.

[2] The appellant Barbara Overall is approximately 82 years old. She lives with her adult son who is the other appellant.

[3] Following a hearing and review process, on May 13, 2016 the Landlord and Tenant Board granted the landlord’s application to evict the appellants.

[4] The board deferred the eviction to August 1, 2016.

[5] The appellants have exercised their right to appeal to this court under s. 210 of the Residential Tenancies Act, 2006, SO 2006, c. 17. The appeal has stayed the eviction order.

[6] The appeal is limited by the statute to questions of law alone.

[7] The standard of review on questions of interpretation by the board of its home statute, the Residential Tenancies Act, 2006, is reasonableness. Wilton-Siegel J. recently described this standard of review in Agyapong v. Jevco Insurance Company et al., 2018 ONSC 878, in this way:

[13] In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.

[8] The court will also intervene if the board denied the appellants procedural fairness or violated the principles of natural justice.

The Facts

[9] The board made several findings of fact that are not open for challenge:

a. The applicable municipal bylaw limits the lawful number of pets that the tenants may keep to four cats plus one dog;

b. From at least 2014, municipal animal control officers were dealing with the tenants regarding the number of cats they were keeping at their premises;

c. On March 31, 2015, the animal control officer found 30 – 40 cats and one dog inside the appellants’ unit;

d. There was no evidence that cats were attracted to the appellants’ trailer in particular by the presence nearby of a food mill as they claimed. Rather, at times the appellants left cat food outside of their trailer;

e. With the assistance of the OSPCA and the animal control officer (who used his own funds to assist) the number of pets was reduced to the lawful maximum by April 13, 2015;

f. On August 18, 2015, the appellants were found keeping six adult cats, three young cats, and 10 – 20 kittens. The appellants were charged with breach of the bylaw and paid a fine.

g. On August 25, 2015, an incident occurred in which the property manager of the complex attended the appellants’ trailer. Her dog was attacked by seven cats and was injured. The property manager suffered scratches that did not break the skin;

h. On August 31, 2015, the animal control officer reported that as he approached the appellants’ trailer, they “took off.” On that day, he arranged for the OSPCA to take six or seven of the kittens from the appellants’ trailer. Seven cats remained;

i. On September 11, 2015, despite previously assuring the animal control officer that they would bring the number of cats down to the lawful maximum, the appellants still had seven cats and two kittens;

j. During the hearing before the board, Barbara Overall testified that she had five cats and one dog which still exceeded the lawful limit; and

k. The tenants were unwilling to abide by the terms of the bylaw;

The Board’s Decision

[10] The board found that in keeping so many cats and refusing to comply with the law consistently and chronically over time, the tenants’ conduct “clearly seriously impairs the safety of others in the complex.” Part of the board’s reasoning includes the following:

Counsel for the Tenants argues if the incident involving [the property manager] is discounted, simply the abundance of unvaccinated cats results in no harm and thus there can be no foul. The Board rejects that argument. The concept of serious impairment of safety to others arises to ensure that harm does not flow from the action or inaction of landlords or of tenants; it does not arise only after harm had been demonstrated to have resulted from their action or inaction.

As counsel for the Landlord points out, the Tenant’s [sic] approach suggests for example that the removal of smoke alarms by a tenant in a residential complex does not constitute a serious impairment of safety to others because there has been no fire to date.

The Tenants’ Main Ground of Appeal

[11] The tenants argue that the board erred in relying on the fact that their cats were not vaccinated as a ground for eviction where (a) lack of vaccination of the cats was not listed as a ground relied upon in the landlord’s N-7 Notice; and (b) there was no fair notice that vaccination was in issue.

There was Notice of the Grounds and Particulars supporting the Grounds of Eviction

[12] An N-7 notice process is reserved for requests for eviction under serious cases like a breach of s. 66 (1) (a) of the statute. That subsection allows for the eviction of a tenant whose conduct “seriously impairs or has seriously impaired the safety of any person.” The notice period is short and the statute does not allow for a cure period. Case law has reserved resort to s. 66 and the N-7 process therefore to cases involving “weighty, grave, or momentous conduct” involving the actual impairment of safety or a real risk of impairment of safety. LTB File No. NOL-08606-12 (9 July 2012; Stevens) 2012 46749 at para 15.

[13] Section 76 of the Residential Tenancies Act, 2006 provides an extra level or protection for tenants where an eviction is proposed due to issues involving animals. Section 76 provides:

Application based on animals

76 (1) If an application based on a notice of termination under section 64, 65 or 66 is grounded on the presence, control or behaviour of an animal in or about the residential complex, the Board shall not make an order terminating the tenancy and evicting the tenant without being satisfied that the tenant is keeping an animal and that,

(a) subject to subsection (2), the past behaviour of an animal of that species has substantially interfered with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or other tenants;

(b) subject to subsection (3), the presence of an animal of that species has caused the landlord or another tenant to suffer a serious allergic reaction; or

(c) the presence of an animal of that species or breed is inherently dangerous to the safety of the landlord or the other tenants.

[14] The law is clear that only a ground of eviction set out in a notice given under the statute may form the basis of an eviction order. It is an error of law to evict a tenant on a ground that is not set out in the notice document. Oshawa Housing Authority v. Maule, 1979 CarswellOnt 2708 (Div. Ct.) at para. 6; DU Chapter House Ltd. v [Tenant], (3 December 1998; Ittlemen), File No. TSL-03969 (ORHT) [CRO No. HOU-D-00691] at para. 7.

[15] The N-7 Notice in this case is a pre-printed form that included the following:

My Reason(s) for Ending your Tenancy I have shaded the box (es) next to my reason(s) for ending your tenancy

□ Reason 1: Your behaviour or the behaviour of someone visiting or living with you has seriously impaired the safety of another person and this behaviour occurred in the residential complex.

[16] There were also three other options listed as Reasons 2, 3, and 4 on the form. These included such things as: wilfully damaging the premises, use of the premises in a manner inconsistent with residential use, and interfering with the landlord’s enjoyment of her premises where the landlord and the tenant live in the same building which has three or fewer units.

[17] In this case, the landlord had printed an “x” through the box to the left of Reason 1 on the form. The ground of eviction relied upon therefore was clearly identified as serious impairment of safety.

[18] The bottom part of the form has a place for the landlord to enter particulars on which it relies to establish the identified grounds for eviction. That is, the form requires the landlord to tell the tenant the basic facts on which the landlord relies to conclude that the tenant has seriously impaired the safety of another person. The form provides:

Details About the Reasons for this Notice I have listed below the events that have led me to give you this notice, including the dates, times and specific details.

[19] Below this entry, the landlord provided particulars of three incidents with a date for each:

2015.03.30. TO 2015.04.13.

ANIMAL CONTROL OFFICE (ACO) FOUND YOU TO BE IN POSSESSION OF APPX. 35 TO 40 CATS, IN CONTRAVENTION OF THE MUNICIPAL BY-LAW, WHICH ALLOWS FOR NO MORE THAN FIVE. THE ACO ORGANIZED AND EXECUTED REMOVAL OF CATS TO BRING YOU INTO COMPLIANCE.

2015.08.14. TO 2015.08.19.

ACO VISITED YOU AGAIN ON 2015.08.14 AND FOUND YOU TO BE IN POSSESSION OF APPX. 20 TO 30 CATS. ACO CHARGED YOU FOR HAVING MORE THAN THE LEGAL NUMBER OF ANIMALS ON 2015.08.19.

2015.08.25. AT APPX. 2:15 PM.

CATS BELONGING TO YOU ATTACKED JOANNE MCLEES, THE PARK MANAGER, AND HER DOG. THE ATTACK RESULTED IN MS. MCLEES AND HER DOG REQUIRING MEDICAL TREATMENT AND RABIES VACCINATION SHOTS.

[20] The tenants argue that the reference to vaccinations in the third set of particulars above was a “throw away.” They had no way, they submit, to realize that the issue of vaccination was a ground that would be relied upon for their eviction by the board. Moreover, they argue that the issue did not really come to the fore at the hearing until the end of the landlord’s case on the first day of the hearing in November, 2015. This too amounts to a further basis to say that they did not have proper notice of the issue.

[21] In my view, the tenants cannot succeed on these arguments. First, they are confusing the ground of eviction with the facts and evidence by which the landlord seeks to prove the ground on which it relies. There was only one ground of eviction set out in the notice and found by the board. The ground relied upon and found was that the behaviour of the tenants “seriously impaired the safety of another person.” This is the ground drawn from s. 66 of the statute and was plainly disclosed in the N-7 form. The tenants therefore had notice of the ground of eviction as required.

[22] In the Oshawa Housing case mentioned above, the court found that the board erred in relying upon a ground of termination to which “the notice made no mention.” Here, the board relied upon the ground specifically identified in the N-7 notice. To make the finding that the ground was proved, the board relied on evidence that was disclosed in the particulars set out in the form. The fact that the board placed more weight on the vaccination issue than the tenants expected at the outset of the hearing is of no moment. The tenants’ counsel conceded that they understood the matter to be in issue after the landlord’s case closed at the end of the first day of the hearing. The hearing resumed many months later. The tenants then presented their case. They gave evidence about their efforts to have cats vaccinated. In other words, they were informed at the outset that the lack of vaccination of the cats was being relied upon as a piece of evidence in support of the ground alleged and they had months of notice that the issue had assumed importance before they presented their side of the case. I see no lack of notice nor any fairness issue on these facts.

[23] The tenants argue further that the board erred in finding that Ms. McLees was required to obtain rabies shots after her dog was attacked by cats at the tenants’ trailer. The landlord’s counsel did not contest the point. The evidence before the board was that the doctor at the emergency room told Ms. McLees that the scratches that she suffered did not require her to take rabies shots. Ms. McLees spoke to a health officer who recommended that she obtain shots. But, the health officer was under the misimpression that Ms. McLees’ injuries had involved skin lacerations. The fact is that Ms. McLees chose to undergo rabies shots electively. She was not required to do so.

[24] Whether the board made an error of fact is not properly before us. Of greater importance however, even if the board committed an error of law in misapprehending evidence, the relevant fact was not whether Ms. Mclees was required to get shots or whether she chose to do so. The important point that is not contested by the tenants is that the cats were not vaccinated and they knew it. Whether Ms. McLees skin was lacerated or not is a matter of happenstance. It is the fact that the tenants kept an unlawfully large number of unvaccinated cats that the board found to be a basis for its holding.

The Board’s Finding of Grounds for Eviction is entitled to Deference

[25] I have had the advantage of reviewing a draft of the reasons of my colleague Mr. Justice Newton. I find myself respectfully unable to agree with his view that the board committed an error of law in its analysis of facts. This is not a case where there was “no evidence” to support the board’s conclusions that the tenants’ conduct seriously impaired the safety of others as set out in the statute and the N-7 notice.

[26] A number of the findings of fact made by the board are listed in para. [9] above. At minimum, the following evidence was before the board and subject to findings of fact:

● The tenants kept an unlawfully large number of cats;

● The tenants replenished their stock even after being informed that they were not allowed to keep so many animals and being assisted to reduce their clowder;

● The cats kept by the tenant had attacked a dog and scratched its owner;

● The cats were not immunized;

● The tenants knew that immunization was required by law;

● The cats had other health issues that prevented them from being immunized.

[27] There was evidence before the board that the tenants had been told that they were required to have their cats vaccinated. In fact, they were charged with failing to do so. They were charged with failing to immunize their cats under s. 1 of the Rabies Immunization Regulation, RRO 1990, Reg 567 under the Health Protection and Promotion Act, RSO 1990, c H.7. That is public health legislation. The Overalls were convicted in absentia and say that they never knew about the charge. But they did know that they were required to immunize their cats because they took the cats to a vet to try to get the shots as required. It turned out that the cats had other medical issues that prevented them from being immunized that day.

[28] The board held that the facts, as it found them, met the legal standard that the tenants’ conduct “seriously impaired the safety of others.” It recited the correct test acknowledging the seriousness of a finding under s. 66 of the statute. It gave transparent and understandable reasons for the finding it made concerning the real risk to safety that these tenants’ created.

[29] The board’s finding that the tenants seriously impaired the safety of others is an application of the facts, as it found them, to the law, as the board interpreted it. This is a mixed question of fact and law. It is not open to this court to review mixed questions of fact and law on an appeal under this statute.

[30] Under s. 76 of the statute, there could not be an eviction unless the animals’ past behaviour interfered with tenants’ enjoyment, the animals caused allergies, or were inherently dangerous. In LTB File No. TSL-56891-14 (21 September 2015; Carey), 2015 77275 the board held that a tenant’s hoarding that resulted in a fire hazard notice amounted to a risk of serious harm to others. That strikes me as an analogous situation. But, the board also found that the infestation of cockroaches that had arisen due to the tenant’s hoarding was not a sufficient basis to evict absent evidence of someone being allergic to cockroaches. Here, the tenants argue that, like cockroaches, cats are not inherently dangerous. However, these are feral cats kept in extremely large numbers. The law requires all cats under a person’s care or custody to be immunized to protect the safety of people and other animals from a serious disease that is a recognized public health hazard. The board found that these facts met the statutory standard.

[31] The legislature has not invited the court to intervene on appeals where this board applies facts to a legal standard. Even on reviewing questions of law under its home statute, the board is entitled to deference. The legislature has specifically determined to limit the court’s role so that the substance of issues concerning affairs between landlords and residential tenants set out in the statutory scheme are resolved by the board and not by the court. The board is certainly aware of the broad legislative goal of this statute to protect tenants generally. It is attuned to the applicable legislative and regulatory policies. It lives them every day. This includes the overriding discretion set out in s. 83 of the statute to protect tenants from eviction even where grounds are proven. Absent an error of law, the court simply cannot interfere with the board’s findings of fact and mixed fact and law. The court is required to defer to reasonable decisions by the board interpreting the statute. Whether a judge agrees or not or feels badly for a tenant, absent an error of law, the court is not authorized to intervene.

[32] Even if mixed questions of fact and law were open to review by this court, the standard of review would be a deferential one. There was abundant evidence from which the board’s conclusion was available as listed above. The board therefore made no palpable and overriding error in any event.

[33] Under the deferential standard to the interpretation by the board of its home statute, in my view, within the range of outcomes that was open to the board, one option was a finding that the tenants’ behaviour in keeping unvaccinated feral cats in unlawfully large numbers in the circumstances proven before the board posed a serious risk to the safety of others that met the tests for eviction. That is what the board found. In my opinion, it made no error of law in doing so.

Other Issues

[34] The other issues raised by the tenants can be dealt with briefly:

a. There was no unfairness in denying an adjournment where the matter had been adjourned already at the tenants’ request and had been scheduled on a peremptory basis to their knowledge. The tenants fired their lawyer and retained new counsel at the last minute. Counsel attended and the hearing was held down to the afternoon to accommodate him as best as possible;

b. In its reasons the board makes no reference to the unsworn letters of complaint from other tenants that the appellants submit were improperly admitted at the hearing. As the letters played no role in the reasons for the order that we uphold, there is no basis to overrule the board on this issue;

c. The board’s errors alleged with regard to whether the pamphlets that the property manager may or may not have left strewn about the porch after being attacked are findings of credibility and fact and, in any event, are not part of the findings relied upon above.

[35] The board exercised its discretion to defer the tenants’ eviction under s. 83 of the statute. In considering the individual circumstances of the tenants under s. 83, the board referred to Ms. Overall as 70 years old when she was in fact 80 years old at the time. We have no way to know if this was just a typo. In any event, we do not agree with the appellants that the circumstances of a 70 year old and an 80 year old per se make a difference in the assessment of factors under s. 83 of the statute. The board considered the facts before it and the circumstances of these parties. It would have been wrong to draw upon age stereotypes rather than evidence and proven facts. Assuming that it was open to us to review the exercise of the board’s discretion, we see no basis to do so. The board made no error in principle nor was the exercise of its discretion clearly wrong.

Fresh Evidence

[36] The appellants seek leave to introduce certificates of vaccination for four cats dated after the date of the board’s reasons. They say in their factum that they have been in compliance with the bylaw since November, 2015.

[37] The respondents seek to introduce fresh evidence in response showing that the appellants were charged yet again in October, 2016 with having too many pets under the bylaw.

[38] The board made findings based on the evidence before it. Our task is to assess whether the board committed any errors of law in its ruling. We are not called upon to exercise the board’s discretion under s. 83 of the statute afresh as if the hearing were being held today. As we see no error of law or principle in the board’s exercise of its remedial discretion, the proposed fresh evidence is of no assistance on the appeal.

Outcome

[39] Leave to file fresh evidence is refused to both sides. The appeal is dismissed.

[40] There was evidence before the board that the tenants may experience financial hardship if evicted. It strikes us as unlikely that the tenants will be readily able to pay a substantial costs award. However, it is also important for litigants to understand that they do bear cost consequences when they bring civil proceedings before the court. Balancing the factors under Rule 57.01 and considering the costs outlines provided by the parties, we view it as fair and reasonable for the tenants to pay the landlord its costs on a partial indemnity basis fixed at $2,000 all-inclusive on or before June 28, 2019.

[41] The tenants shall have until June 28, 2018 to leave the premises voluntarily. If they fail to leave, the landlord is granted leave to issue and enforce a writ of possession on June 29, 2018. As the landlord has an enforceable eviction order, the court urges the parties to seek again to come to a resolution to maintain the status quo on terms acceptable to all of them. A judge of the court is available to hold a case conference under Rule 50.13 to assist the parties in any such discussions if they all agree to participate.

____”Justice F. Myers” Myers J.

I agree _______”Justice R.J. Harper” Harper J.

W.D. Newton J. (Dis­senting)

[42] I would allow the appeal for two reasons:

1. The Board based its decision on a factor not specifically identified in the N7 Notice to End Tenancy – unvaccinated cats.

2. The Board had no evidence that the presence of unvaccinated cats seriously impaired the safety of another person.

[43] Unless stated to the contrary, I am in agreement with the facts as stated by the majority.

REVIEW OF THE LAW, NOTICE OF TERMINATION AND REASONS

The Act

[44] The relevant provisions of the Residential Tenancies Act, 2006, S.O. 2016, c. 17 (“RTA”) are:

Purposes of Act

1. 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.

37(1). A tenancy may be terminated only in accordance with this Act.

Notice of termination

43(1). Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,

(a) identify the rental unit for which the notice is given;

(b) state the date on which the tenancy is to terminate; and

(c) be signed by the person giving the notice, or the person’s agent.

Same

(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,

(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);

(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and

(c) if the landlord applies for an order, the tenant is entitled to dispute the application.

Termination for cause, act impairs safety

66 (1) A landlord may give a tenant notice of termination of the tenancy if,

(a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and

(b) the act or omission occurs in the residential complex.

Same

(2) A notice of termination under this section shall provide a termination date not earlier than the 10th day after the notice is given and shall set out the grounds for termination. [Emphasis added.]

[45] The RTA provides that a landlord may also give notice to terminate a tenancy for wilful or negligent undue damage to the unit, substantial interference with reasonable enjoyment of the premises, or if the number of persons in the unit results in a contravention of health, safety or housing standards as required by law. In these cases, the landlord is required to give notice to the tenant to stop the impugned conduct or repair the premises.

[46] If the termination is to be based on an illegal act or trade within the premises, such as drug trafficking or serious impairment of safety, there is no opportunity for the tenant to remedy the behavior complained of.

The Notice to End Tenancy – “N7 Notice”

[47] The N7 Notice, dated September 18, 2015, sought the termination of the tenancy by September 29, 2015. The reason given was:

Your behaviour or the behaviour of someone visiting or living with you has seriously impaired the safety of another person and this behaviour occurred in the residential complex.

Details of the events are stated as:

March 30, 2015 to April 13, 2015 – animal control officer (aco) found you to be in possession of appx. 35 to 40 cats, in contravention of the municipal bylaw which allows for no more than five. The aco organized and executed removal of cats to bring you into compliance.

August 14, 2015 to August 19, 2015 - aco visited you again on August 14, 2015 found you to be in possession of appx. 20 to 30 cats. aco charged you for having more than legal number animals on August 19, 2015.

August 25, 2015 - cats belonging to you attacked Joanne McLees, the park manager, and her dog. The attack resulted in Ms. McLees requiring medical treatment and rabies vaccination shots.

The Reasons

[48] Paragraph one of the Board’s Reasons stated:

The Landlord seeks termination of this tenancy on the basis that keeping, feeding, caring for or harboring excessive unvaccinated cats seriously impaired the safety of another person. The Board agrees. [Emphasis added.]

[49] After reviewing some of the evidence, including whether the tenants were in compliance with the by-law, or possessed one cat in excess of the number permitted under the by-law, the Member continued:

In any event, both Tenants indicated at the hearing that even those cats that remain in their care at the date of this hearing are unvaccinated.

It is clear to the Board that the Tenants are unwilling to abide by the terms of or come even close to the number of pets authorized by the Animal Control Bylaw of a maximum of 4 cats and 1 dog. This refusal flies in the face of earnest efforts of Officer T and others to allay the situation in the unit and in the complex. It also clearly seriously impairs the safety of others in the complex.

Counsel for the Landlord quite reasonably points to the evidence of JM as indicative of the danger of both the number of cats under the control of the Tenants but equally the danger of unvaccinated animals under their care. [Emphasis added.]

ANALYSIS

Sufficiency of Notice

[50] Section 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that where the conduct of a party is in issue, that party is entitled to be furnished with reasonable information of any such allegations.

[51] For example, when termination is sought on the basis of an illegal act, the Board cannot consider termination based on a different illegal act than the one noted in the Notice for Termination. In TSL-O3969, the illegal act complained of was the cultivation of marijuana. The evidence was that the tenant was in possession of marijuana. However, the Board would not consider termination based on a ground that was not specified in the Notice.

[52] While the tenants led some evidence of attempts to vaccinate their four cats, a review of the transcript of the proceedings does not reveal that the tenants should have been aware that one of the serious grounds advanced to support termination of the tenancy was the fact that the cats were unvaccinated.

[53] Unlike my colleagues, I read the decision of the Member as relying heavily on the fact that the cats were unvaccinated. As such, I conclude that it was an error of law for the Member to rely upon a ground for termination that was not specifically addressed in the Notice of Termination.

Proof of Serious Impairment

[54] A Notice of Termination for serious impairment of safety is on shorter notice than for other grounds of termination. There is no opportunity for the tenant to remedy the situation, as there is when a notice is served alleging substantial interference with the reasonable enjoyment of the premises by other tenants: see ss. 66, 69 and 71 of RTA.

[55] Prior decisions of the Board have described the type of conduct which will justify termination to ensure the safety of others:

In order to be successful on this ground, the Landlord must establish that the effect of the occupant’s actions threatens the well being or physical integrity of another person to such a degree that termination of the tenancy is reasonable in order to ensure the safety of others. In other words, have the occupant’s actions put someone at serious risk of physical harm? Not every risk of physical harm to another will meet the test, as the impairment of safety must be serious: see TSL-76716-16 at para. 16, citing TSL-12167-11 at para. 11.

Under this section the use of the word serious implies weighty, grave or momentous conduct. The conduct must have a substantial negative effect on a person’s well being or the risk of same: see NOL-08606-12 at para. 15.

[56] The burden of proving serious impairment of safety is upon the landlord: see HOL-01640-17 at para. 6, and SOL-69406-16 at para. 17.

[57] In hoarding cases, for example, the Board often relies upon fire service inspections to confirm that the unit constitutes a fire hazard before making a finding that safety is impaired: see TSL-31924-12 at paras. 15–16 (QL), and TSL-56891-14 at paras. 16 and 20–21.

[58] In dealing with pests, evidence must be led to determine that safety is impaired:

No evidence was led that that anyone’s safety in the residential complex was impacted or at risk because of the cockroach issue: see TSL-56891-14 at para. 35.

[59] In Harris v. Toronto Community Housing Corporation, 2009 34989 (ON SC (Div. Ct.)), this court reviewed a decision of the Board to terminate the tenancy of three tenants who were found to seriously impair the safety of other persons. As a result of a major drug investigation, search warrants were executed with the following results:

[6] In Ms. Mohamud’s household, the police officers found 11 grams of crack cocaine, two loaded 357 magnum guns, a loaded pistol-grip shotgun, with the serial number removed, and a MAC-11 semi-automatic weapon, which was later found to have been used in four other crimes. Ms. Mohamud’s son, a guest of her son, and another occupant were arrested and charged in relation to these seizures.

[7] In the Harris household, the police officers found drugs, guns and ammunition, which included a fully loaded handgun, newspaper articles relating to the Jamestown Cripps Gang, two scales, 5 cell phones, and a large amount of cash. Ms. Harris’ son was arrested and charged in relation to these seizures.

[8] In the Whyte household, the police officers found bullets and shotgun shells, a number of drug scales, dime bags of marijuana, 5 bullets concealed in a bandana of a type worn by members of the Cripps gang, $2000 in cash, a debt list, 12 Ecstasy pills, a loaded 9 mm handgun, and a box for the handgun together with a user’s manual. Ms. Whyte’s son, who was listed as an occupant, and a guest were arrested and charged in relation to these seizures.

[60] In Harris, the Board heard evidence from a detective and the property manager that the neighbourhood was extremely dangerous and that there had been many shootings. This supported the finding of fact that the illegal guns, and their relation to drug trafficking and shootings that were occurring in the area, impaired the safety of others in a serious manner.

[61] A review of the transcript of this hearing discloses that no evidence was led that addressed the issue of serious risk of physical harm. Accordingly, the available inferences that could be made by the Member about impairment of safety were limited. Since there was no evidence that the cats had rabies, or that the attack resulting in a real concern of another person contracting rabies, the inference to be drawn that the presence of the cats did impair the safety of another person was not supportable. In addition, the cats were vaccinated as soon as it was medically permissible so this concern has been addressed.

[62] While the N7 Notice specified that the “attack resulted in Ms. McLees and her dog requiring medical treatment and rabies shots”, McLees did not require any treatment and elected to take rabies shots. Ms. McLees had been delivering notices at the trailer park with her small dog. She delivered a notice to the Overall’s door and left exiting the deck by a staircase. She had noticed nursing kittens in the area and some cats on the deck. As she left, some cats attacked her dog. The extent of her injury were possible scratches to her leg when she attempted to rescue her dog. Her physician told her that rabies shots were not necessary (“risk likely minimal"), but she elected to take the shots because “there were feral cats there”. This is not evidence of serious risk of physical harm.

[63] Further, the by-law regulating animal care and control under which the tenants were prosecuted does not discuss or seek to remedy safety or risk of physical harm. It also does not address vaccination.

[64] No evidence was led from a Health Unit or from any person qualified to give evidence about serious impairment of safety.

[65] Despite the absence of any evidence of a serious risk of physical harm to any person, the Member concluded that there was a serious risk of physical harm

Standard of Review

[66] The standard of reasonableness is presumed to apply to judicial review of administrative appeals where the statute is closely connected to the administrative body’s function: see Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293. This close connection exists between the RTA and the LTB: see Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, at paras. 35–37, citing Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 39.

[67] The question of whether the acts or omissions of a tenant seriously impairs the safety of any person is a question of mixed fact and law (see Harris at para. 31). Our jurisdiction is limited to questions of law.

[68] However, the standard of correctness will still apply when there are pure errors of law or where there is no evidence or an absence of evidence on an essential point: see142445 Ontario Ltd. (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2009 24643, 95 Admin LR (4th) 273, at paras. 14–16 and 18, citing Keeprite Workers’ Independent Union v. Keeprite Products Ltd., 1980 1877, 29 O.R. (2d) 513 (C.A.), leave to appeal to SCC refused, 16262 (November 19, 1980).

[69] Given my finding that there was an absence of any such evidence, the appropriate standard of review in this case is correctness. Applying a legal test without the required evidence to ground a finding of fact is a palpable and overriding error that requires appellate intervention, and little deference is owed in the review: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 36 and 50.

CONCLUSION

[70] Having concluded that there was an error of law, I would allow the appeal, set aside the Order dated May 13, 2016 terminating the tenancy, and dismiss the Landlord’s application.

“Justice W.D. Newton”

W.D. Newton J.

Date of Release: May 24, 2018

CITATION: 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264

DIVISIONAL COURT FILE NO.: 02/16

DATE: 20180524

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HARPER, MYERS, AND NEWTON JJ.

BETWEEN:

2276761 Ontario Inc.

Applicant/Respondent in Appeal

– and –

Barbara Overall and Peter Overall

Respondents/Appellants

REASONS FOR JUDGMENT

F.L. Myers J.

W.D. Newton J. (Dissenting)

Date of Release: May 24, 2018