CITATION: Okoye v. De Melo, 2021 ONSC 6201

DIVISIONAL COURT FILE NO.: 451/18

LTB File No: TNL-04608-18 DATE: 20210927

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Sachs, Kristjanson, and Ryan Bell JJ.

BETWEEN:

CHIBUZO OKOYE and JUDE IDADA

Matthew Helfand, counsel for the Appellants

Appellants (tenants)

– and –

GLORIA DE MELO

Respondent (landlord)

David S. Strashin, counsel for the Respondent

HEARD at Toronto by videoconference: March 31, 2021

Kristjanson, J.

1This is a statutory appeal from two decisions of the Landlord and Tenant Board. In the original Order dated June 20, 2018, Member Mitchell terminated the tenancy because the landlord required the unit for her family’s use. In the July 23, 2018 Review Order, Vice-Chair Sangmuah dismissed the tenants’ request for a review.

2The tenants appeal on the basis that the Member misapplied the legal test under s. 83(3)(c) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) in determining whether the eviction application should be refused. The tenants also argue that they were denied procedural fairness at the hearing. The appeal is dismissed for reasons set out below.

Factual Background and Decisions Below

3The tenants had occupied a rental unit since 2011. The landlord filed an application under s. 48(1) of the RTA on May 7, 2018 to terminate the tenancy because she required the unit for her own use. The landlord claimed that her sons required the unit because they needed to move to downtown Toronto for work. Section 48(1) provides:

48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,

(c) a child or parent of the landlord or the landlord’s spouse

4The matter came to the Landlord and Tenant Board (the “LTB”). The Member heard the evidence of the landlord, her husband, and their two sons who planned to occupy the unit, as well as the evidence of one of the two tenants. The Member found that the landlord, in good faith, intended to possess the rental unit for residential occupation by a child of the landlord in accordance with s. 48(1) of the RTA.

5The Member then turned to the issue of whether he must refuse the eviction under s. 83(3)(c) of the RTA because the reason for the landlord’s application was that the tenants had attempted to enforce their legal rights, in contravention of s. 83(3)(c) of the RTA:

83(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights…

6The Member recognized that if he determined that the reason for the landlord bringing this application was because the tenants had attempted to secure or enforce their legal rights under the RTA, he must dismiss the application.

7The tenants argued that they attempted to enforce their legal rights concerning three different breaches of the RTA by the landlord. The tenants filed two applications with the LTB on June 29, 2018. These applications concerned two illegal entries, an attempt to illegally increase rent, and various maintenance issues. The Member found on the facts that the reason for the landlord's application was not because of the tenants' request for rent receipts or demands with respect to repairs.

8The Member carefully considered the evidence of the illegal rent increase demands. He found it more likely than not that the landlord’s husband had indicated to the tenants that the landlord required a rental increase for the unit to be economically viable. However, he held that this fact does not of itself support a finding that the landlord's failure to extract a rental increase was the reason behind the present application. He found that the timing of the landlord’s application – seven months after the conversation about the rent increase – was consistent with the evidence about the timing of the landlord's recognition of the need for her children to occupy the unit.

9The Member considered the relevant RTA provisions. He distinguished Barnum v. Parker [2014] O.J. No. 1294 (Div. Ct.), where the court found that the only logical conclusion was that the landlord's application was brought because of the tenants' successful resistance to rental increases. He found that was not the case here.

10Accordingly, the Member granted the landlord’s application to terminate the tenancy. The tenants requested a review of the Order. In the July 23, 2018 Review Order, Vice-Chair Sangmuah refused the request.

COURT’S JURISDICTION:

11The Divisional Court has jurisdiction to hear an appeal of an order of the LTB under s. 210(1) of the RTA, but only on a question of law.

STANDARD OF REVIEW:

12An appeal from a decision of the LTB is restricted to questions of law. Since this is a statutory appeal on a question of law, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law.

13On questions of procedural fairness, the court must determine whether the appropriate level of procedural fairness was afforded.

ISSUES:

14The tenants raise two issues. First, did the Member err by failing to properly apply RTA s. 83(3)(c)? Second, did the Member deny the tenants procedural fairness by denying them a reasonable opportunity to present their case?

Issue #1: Did the Member err by failing to properly apply RTA s. 83(3)(c)?

15The tenants argue that the Member erred in law by misapplying s. 83(3)(c) when he found that the landlord’s application was not caused by the tenants’ attempts to secure or enforce their legal rights. They argue that had the Member properly considered their evidence about refusing to pay an illegal rent increase, demanding repairs, and contesting illegal entries by the landlord, the Member would have been required, under s. 83(3)(c) of the RTA, to refuse the landlord’s eviction application.

16The Member’s determination that the landlord’s eviction was not retaliatory for the purposes of s. 83(3)(c). It was based on his findings of fact and assessment of evidence. The tenants are essentially arguing about the weight assigned to the evidence. On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the law or legal standard relevant to the facts found by the decision-maker. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29.

17Here, the Member considered all the evidence and made findings of fact available to him. The Member directed himself to the proper question: was the reason for the landlord’s eviction application that the tenants had attempted to secure or enforce their legal rights? The wording of the RTA is that the tenant’s attempt to secure or enforce legal rights must be “the” reason for eviction, not “a” reason for eviction. In other words, retaliation must be the “sole or primary” reason for eviction. This approach is consistent with both judicial and Board jurisprudence. On the facts as found by the Member, he concluded that the attempts by the tenants to secure or enforce their rights was not the reason for the application. The legal test was correctly identified and applied to the facts found by the Member. There was no error of law in the Member’s decision.

Issue #2: Did the Member deny the tenants procedural fairness by denying them a reasonable opportunity to present their case related to s. 83(3)(c)?

18The tenants argue that they could not properly present their case under s. 83(3)(c) because the Member determined that the test for relief from eviction under s. 83(3)(c) was not distinct from the test for good faith under s. 48(1), and that any attempts by the tenants to exercise their rights would go to the question of good faith under s. 48(1), rather than forming a distinct inquiry under s. 83(3)(c). They further assert that because of this misunderstanding, the Member prevented the tenants from advancing any evidence or argument on the issues relating to s. 83(3)(c).

19It is clear from a review of the transcripts that the Member may have initially conflated the two issues. However, after hearing initial submissions by the tenants, and after adjourning the matter, the Member on his return clearly recognized the argument that the application was a retaliation for the tenant's complaints, and the Member stated that he was bound by s. 83(3)(c). The tenants were allowed to provide evidence and cross-examine on all issues relating to their claim of retaliation. The tenants made closing submissions about s. 83(3)(c) and their attempts to assert their legal rights as the basis for the retaliation. The tenants had an adequate opportunity to present their case, and there was no breach of procedural fairness.

Costs

20The appeal is dismissed. The appellants are to pay the respondents costs of $5,000.00, inclusive, within thirty days.

___________________________ Kristjanson J.

I agree

Sachs J.

I agree

Ryan Bell J.

Date of Release: September 27, 2021

CITATION: Okoye v. De Melo, 2021 ONSC 6201

DIVISIONAL COURT FILE NO.: 451/18

LTB File No: TNL-04608-18 DATE: 20210927

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Kristjanson, and Ryan Bell JJ.