Victor Minas and Janet Minas v. Kerry Evan Adler and Eagle Capital Corporation, 2022 ONSC 6706

CITATION: Minas v. Adler, 2022 ONSC 6706

DIVISIONAL COURT FILE NO.: DC-22-073-Appeal

DATE: 20221202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Varpio, O’Brien, J.J.

BETWEEN:

James P. McReynolds, for the Appellants/Landlords

VICTOR MINAS AND JANET MINAS

Appellants

– and –

KERRY EVAN ADLER and EAGLE CAPITAL CORPORATION

Respondent

Benjamin Salsberg, for the Respondent/Tenants

David S. Strashin, for the Respondents/Tenants

Eli Fellman, for the Landlord and Tenant Board

Karen Andrews and Dania Majid, for the Intervener, Advocacy Centre for Tenants Ontario

HEARD at Toronto by videoconference: November 22, 2022

Varpio J.:

REASONS FOR DECISION

1Mr. Kerry Adler is the President and CEO of Skypower Services, a multinational company which, prior to the COVID-19 pandemic, had offices in Toronto and Dubai.

2Victor and Janet Minas (the “Landlords”) own a luxury home located at 20 Sandringham Drive, Toronto, Ontario. In the late 2010’s, the Landlords decided to rent out the premises and reside elsewhere.

3In late 2019, Mr. Adler rented the home from the Landlords with the intention of residing there. Mr. Adler and his personal corporation, Eagle Capital Corporation (the “Tenants”) signed the lease. The lease was for a period of one-year, following which the tenancy continued on a month-to-month basis.

4In March 2020, the COVID-19 pandemic struck. Work and business changed as offices closed and people began to work from home. Skypower Services was affected by the pandemic such that it closed its offices in Toronto. Mr. Adler moved with his family to Dubai in December 2020, although the Tenants continued to pay rent to the Landlords.

5In August 2021, Mr. Minas attended at the premises and found them to be – according to him – in a state of disrepair. He terminated the tenancy and took possession of the house without obtaining an order from the Landlord and Tenant Board (the “Board”). On August 18, 2021, the Tenants filed an action in the Ontario Superior Court of Justice seeking monetary damages and possession of the home. That fall, Dow J. dismissed an urgent motion seeking possession of the home. While the decision was under reserve, the Tenants commenced an application before the Board seeking, inter alia, to re-take possession of the premises. The Landlords then filed an application seeking a declaration that the Residential Tenancies Act (the “RTA”) did not apply to the tenancy.

6On January 24, 2022, Member Shea of the Board found that the RTA applied to the tenancy, and he ordered that the Tenants be given possession of the premises. The Landlords appeal the Board’s decision.

7For the following reasons, I would dismiss the Landlords’ appeal.

FACTS

8At the end of June 2019, the Tenants leased the premises in question from the Landlords. Mr. Adler resided in the premises with his family. The Tenants paid $18,000/month in rent.

9On December 14, 2020, Mr. Adler and his family left for Dubai in part because the COVID-19 pandemic caused Skypower to close its Toronto offices. They have continued to reside in Dubai since that date. Nonetheless, the Tenants continued to pay rent to the Landlords.

10It is uncontested that no one lived in the residence between December 14, 2020 and August 15, 2021. On that latter date, Mr. Minas attended the residence to make a repair. Mr. Minas testified in an affidavit filed in support of an injunction motion (which will be described later in these reasons) that he discovered that the home was in a state of disrepair. Mr. Minas also testified that he discovered that certain business activities were taking place at the residence.

11The Landlords purported to terminate the tenancy forthwith. The Landlords changed the locks on the residence. The Landlords moved back into the home. On August 18, 2021, the Tenants filed an action in the Superior Court of Justice seeking both possession of the residence as well as $10,000,000 in general damages and $200,000 in punitive damages.

12The Tenants brought an urgent motion seeking an injunction giving them possession of the residence. On September 12, 2021, Dow J. of the Superior Court of Justice heard the motion and reserved judgment. In an affidavit sworn in support of this motion, Mr. Adler deposed that his personal assistant worked in the residence while he was in Dubai. The assistant performed administrative business functions associated with Mr. Adler’s personal affairs as well as Eagle Capital’s “passive” investments. Mr. Adler also deposed that he intended to return to Toronto in order to facilitate his child’s attendance at a Toronto private school.

13On October 6, 2021, while Dow J.’s reasons were under reserve, the Tenants commenced an application before the Board seeking possession of the premises. Other than the claim for monetary damages, the Board application sought identical relief to the relief sought in the Superior Court action.

14On October 22, 2021, Dow J. released his reasons dismissing the injunction (2021 ONSC 6224). At paragraphs 7 and 8, Dow J. stated:

Mr. Adler and Eagle Capital Corporation commenced this action on August 18, 2021 seeking injunctive relief returning the premises to them as well as $10,000,000.00 in general damages as well as $200,000.00 in punitive damages. This motion was sought to be heard on an urgent basis. As part of the plaintiffs’ evidence, it was deposed that Mr. Adler intended to return to the premises to facilitate one of the children (from a previous relationship) beginning to attend Crescent School as of September 7, 2021. I was advised the child did return to attend the school and is residing with his mother in Toronto who shares custody of him with Mr. Adler.

Mr. Adler and the rest of his family remain in the United Arab Emirates. During cross-examination of Mr. Adler, remotely, on August 30, 2021, it was acknowledged no air tickets to Toronto had been purchased and a re-opening date for Skypower Services offices in Toronto had not been set.

15Dow J. then considered the test for granting an injunction as described in RJR-MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), 1994 1 S.C.R. 311. At paras. 13 to 15 of his reasons, Dow J. dismissed the Tenants’ injunction motion based upon the second prong of the RJR-MacDonald test. As emphasized in bold below, Dow J. expressed the view that the propriety of the eviction should be dealt with by the Board:

Regarding the second test whether the moving party tenant will suffer irreparable harm if the injunctive relief is not granted, I have concluded that they will not. Mr. Adler’s private corporation can be operated from a variety of locations and not necessarily a private residence which raises application of the Residential Tenancies Act, supra.

Mr. Adler has resided in the United Arab Emirates since December, 2020. The evidence is his employer, Skypower Services pays for his accommodations in that location. It is clear he has and continues to perform the duties of his occupation from that location, being other than Toronto. The primary concern of accommodation for his son to attend Crescent School and live nearby has been secured, likely at an optimal location, that is, with his mother who has shared custody.

The Supreme Court of Canada has described the nature of irreparable harm as being something that cannot be quantified in monetary terms or cured by collecting damages from the other. I was not directed to any evidence of such harm. To the contrary, it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant Board. If any claims for damages remain, this action seeks same and remains available. [Emphasis added.]

16Dow J. then addressed the third prong of the RJR-MacDonald test at paras 16 and 17:

Regarding the third part of the test, being which party would suffer the greater harm from granting or refusing the remedy sought until there is a decision on the merits, I have concluded this also rests in favour of the defendants/landlords. There is evidence that this luxury property was not being kept up to a standard that one would expect. That is perhaps understandable given Mr. Adler’s absence from the property since December, 2020. In addition, the evidence regarding Mr. Adler’s return to the premises was uncertain if not speculative.

The defendants’ decision to move back in, in my view, provides the best opportunity for the property to be properly maintained pending disposition of all of the disputes between the parties before the Landlord and Tenant Board. This will also benefit the plaintiffs/tenants if determination of the issue of ending their tenancy is resolved in their favour. In this regard, there is evidence that the plaintiffs/tenants’ refusal to pay the water bill (which has been added to the tax bill and paid by the defendants/landlords) relates to it being excessive as a result of [a] leak in the pool. With the landlord in possession, the steps necessary to determine that [sic] the water leak issue can progress more efficiently. Further, the defendant/landlords’ testified insurance on the property requires them to be living in it and that refinancing of mortgages depends on the defendants/landlords being in possession. [emphasis added]

17The parties attended before the Board on November 12, 2021. On January 24, 2022, the Board released a decision wherein Member Shea made the following orders:

1. Application TNL-31819-21 is withdrawn at the request of the Landlords.

2. The Act is applicable to the rental unit.

3. The Landlords shall immediately allow the Tenants to recover possession of the rental unit and provide to the Tenants: (a) keys to the doors of the rental unit; and (b) any pass, access or other codes required for the Tenants to have full and unfettered access to the rental unit.

4. If the Landlords do not allow the Tenants to recover possession of the unit, the Tenants may file this order with the Court Enforcement Office (Sheriff) so that the order may be enforced.

5. Upon receipt of this order, the Enforcement Office is directed to give possession of the unit to the Tenants.

6. A further order will be made with respect to costs.

18Member Shea stated at the outset of his reasons that “[t]he parties requested that I consider (and rely on) the evidence that was before the Superior Court when it heard [the injunction motion decided by Dow J.]”.

19At paragraphs 4 and 5 of the “Facts” section of his reasons, Member Shea stated:

The relationship between the Landlords and the Tenants – or at least Mr. Adler – has deteriorated for reasons that are not particularly relevant to the applications that are before me. Suffice as to say [sic] that there have been, as noted above, a number of applications commenced by the Landlords seeking to evict the Tenants and a number of those applications are pending before the Board.

The Tenants’ T2 application was brought because, on August 16, 2021, the Landlord purported to terminate the tenancy and evict the Tenants without an order of the Board or the Tenants’ consent based on the allegations that: (a) the Act had ceased to apply to the rental unit; and (b) the Tenants had breached the applicable tenancy agreement.

20Member Shea then held that no one had stayed overnight at the residence between December 2020 and August 15, 2021 and that the Landlords discovered that the Adlers were not residing at the premises on August 15, 2021.

21At paragraph 31, Member Shea noted that the Board has exclusive jurisdiction to determine whether the LTA applies to a rental unit as per Firm Capital Management v. Heather Tessier, 2019 ONSC 55. At paragraphs 32 and 33, Member Shea stated:

The act applies to a rental unit, unless the rental unit is of a type that is identified as being excluded from the operation of the Act. [See Act, ss 3(1) and 5] The Act defines ‘rental unit’ to mean any living accommodation used or intended for use as rented residential premises. [Act, s. 2(1)] This definition contains two components. For the Act to apply, a unit must: (a) be ‘living accommodations; and (b) be used or intended for use as ‘rented residential premises’. [Matthews v. Algoma Timberlakes Corporation, 2010 ONCA 468]

The Act does not include a definition of ‘living accommodations’ or ‘residential premises’, but I do not believe that there is much dispute that the Act is intended to apply to rental units in which individuals live or are intended to live as opposed to those that are used or intended to be used for commercial activity – i.e. to generate business revenue. However, the application of the Act is not excluded, in my view, simply because some commercial activity is carried out from a rental unit. The Act applies to living accommodations notwithstanding, for example, that a tenant operates a hobby business from home, brings work home, works from home or participates in Zoom meetings from home. [Emphasis in original.]

22In determining that the RTA applied to the tenancy, the Member stated at paras 34 to 36:

In this case, there can be no possible dispute that the rental unit – a single-family home – is ‘living accommodations’. The second requirement of the definition of ‘rental unit’ is disjunctive and it is sufficient for the purposes of this application for me to find that the rental unit is ‘intended for use as rented residential premises’, which I do below, but I will also consider other factors such as the de facto use, and the predominate [sic] purpose and use of the rental unit in case I am wrong.

The fact that the Adlers may have stopped living in the rental unit is not determinative as to whether the Act applies. The Tenants included Eagle Capital as well as Mr. Adler. Moreover, as was noted by the Tenants, a tenant has a right to occupy a rental unit based on paying rent for the use of the unit and a tenant need not reside in a unit to maintain a tenancy so long as he or she continues to pay rent. The Act defines a rental unit to mean ‘any living accommodation used or intended for use as rented residential premises’ (emphasis added). And subsection 2(3) of the Act provides that a tenant does not abandon a rental unit so long as he or she continues to pay rent.

I am prepared to accept that a tenancy can cease to be residential such that the Act ceases to apply. Where, however, a landlord decides for itself that the Act has ceased to apply and exercises ‘self-help’ to terminate a tenancy and evict a tenant, that landlord runs the risk that the Board will find that the Act continues to apply and that the landlord has effected an illegal lock-out. That is the risk that Landlords took on August 16, 2021 when they purported to terminate the tenancy and evict the Tenants without an order from the Board. [Emphasis in original.]

23The Member then continued in his analysis. He considered the Landlords’ submission that the four-prong test described in Optimal Space Inc. v. Margana Holdings Inc., 2005 14142 (ONSC) ought to be applied in order to determine whether a rental unit is subject to the RTA. Accordingly, the Member considered:

1. The intention of the parties;

2. The de facto use of the premises;

3. The predominant purpose or use of the rental unit; and

4. The relationship as between the landlord and the tenant in question.

24The Member examined the evidence before him and found the following:

1. The intention of the parties was that the RTA would apply to the tenancy;

2. There was no evidence upon which he could reasonably find that the de facto use of the premises was anything but residential. Specifically, the Member examined the duration of the tenancy, and found that there were no commercial or business activities being conducted at the rental unit that would preclude the application of the RTA. The Member reviewed pictures taken by the Landlord and determined that the “workstation [in the pictures] appears, based upon the Landlords’ pictures, to be no different than what many Ontarians have set up in their homes so that they can work from home and participate in Zoom or other remote meetings”. The Member also reviewed the Landlords’ pictures of the home office and drew the same conclusions.

3. Given the foregoing, the Member found that the predominant use of the premises was a residential use.

4. Finally, the relationship between the parties did not suggest that the RTA was inapplicable.

25Accordingly, the Member found that the RTA applied to the tenancy as per Optimal Space v. Margana.

26With respect to whether the Board application constituted an abuse of process, the Member considered a variety of cases dealing with abuse of process, specifically Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.) 2011 ONCA 125; Birdseye Security Inc. v. Milosevic, 2020 ONCA 355; and Trindade v. Jantzi 2021 ONSC 1927. The Member then quoted Dow J’s statement that “[t]he defendants’ decision to move back in, in my view, provides the best opportunity for the property to be properly maintained pending disposition of all the disputes between the parties before the Landlord and Tenant Board”. The Member considered Trindade v. Jantzi and determined that, unlike the case in Trindade, there was on ongoing tenancy between the Landlords and the Tenants and that there was utility to the Board hearing the matter “in the sense that it [the Board application] seeks relief [possession of the premises] under the Act on a matter that is within the specialized knowledge and experience of the Board and is not being used for an improper purpose”.

27The Member then considered what he found to be possible “forum shopping” by the Tenants:

While I do not in any way condone what appears at least to be ‘forum shopping’ by the Tenants, I do not find, based on the facts of these cases, that the interest of justice would be served by what the Landlords are requesting. On the T2 application, the Tenants are seeking to be put back into possession of the rental unit on the basis that there has been a breach by the Landlords of section 24 of the Act. Subject to the Landlords’ argument with respect to my discretion to refuse to grant relief, the relief being requested by the Tenants on the T2 flows naturally from the uncontested facts and my determination of the Landlords’ A1 application that the rental unit is subject to the Act.

28The Member then concluded that the Board was the proper forum for the matter at hand:

While admittedly the A1 and the T2 applications were not issued until after Justice Gow [sic] heard the Tenants’ motion, there is nothing in Justice Dow’s Reasons for Decision that indicates to me that His Honour was contemplating that certain of the landlord-and-tenant disputes between the parties would be determined by the Superior Court while others would be determined by the Board. In paragraph 13, Justice Dow alludes at least to the fact that the application of the Act is among the issues to be resolved by the Board and it seems to me that if His Honour contemplated that the application of the Act would be determined by the Board and it stands to reason that the Board would also determine whether there was a breach of the Act and what, if any, remedy would be provided.

The approach of determining the A1 and then leaving it to the Superior Court to determine the consequences that flow from that in terms of whether the Tenants should be put back into possession of the rental unit would not, in my view, result in the just, most expeditious and least expensive determination of the issues between the Landlords and the Tenants. Determining the A1 and then leaving the issue as to whether the Tenants ought to be put back into possession of the rental unit to be determined by the Superior Court at some point in the future would, in my view, result in the least expeditious and most expensive determination of the issues raised on these applications. While my determination of the T2 is unlikely to end the Landlords’ efforts to evict the Tenants, it will at least fully resolve the issues that have been put before me by the parties on the A1 and T2 applications that are before me. [Emphasis in original.]

29Finally, the Member determined that the Landlords had breached section 24 of the RTA by:

illegally locking the Tenants out of the rental unit. There is no dispute that: (a) the Landlords changed the locks of the rental unit; and (b) they did so without an order from the Board or the consent of the Tenants. The Landlords’ only viable defence to the Tenants’ allegations on the T2 [the application regarding lawful possession of the rental unit] is the assertion that the Act does not apply.

POSITION OF THE PARTIES

30The Landlords appeal the Board’s decision and advance four arguments on appeal¹:

1. The Board did not have jurisdiction to hear the matter as the Superior Court of Justice had exclusive jurisdiction;

2. If the Board did have jurisdiction, the Board application ought to have been dismissed as being an abuse of process;

3. The Member’s finding under s. 9 of the RTA was unduly limited in that he only considered whether the Tenants “intended” to use the rental property as a residential tenancy. The Member failed to adequately address the governing test under Optimal Space; and

4. The Member’s interpretation of the term “vacant” under s. 31(3) of the RTA was incorrect. The premises were occupied by the Landlords at the time of the hearing and, as such, the premises were not “vacant”. The Member could not, therefore, grant the Tenants possession of the premises.

31The Tenants disagree with the Landlords’ positions. They submit that:

1. The Board and the Superior Court of Justice have concurrent jurisdiction to hear matters in these proceedings based upon the appropriate interpretation of the RTA. The Board therefore had jurisdiction to hear the matter;

2. The Board application was not an abuse of process;

3. The Member properly applied the law in determining that the Tenants intended to use the premises as a residential unit; and

4. The Member’s interpretation of the term “vacant” is correct because the Landlords’ interpretation would enable future landlords to illegally take possession of a rental unit and thereby thwart the Board’s ability to protect innocent tenants.

32The Board submits that Board had jurisdiction to hear the matter and that the Member’s interpretation of the term “vacant” was appropriate in the circumstances.

33The intervenor, the Advocacy Centre for Tenants Ontario (“ACTO”), submits, inter alia, that the term “vacant” must not only exclude situations where a landlord takes possession of a rental unit, but also exclude situations where a landlord, having illegally terminated a tenancy, rents the premises to a third party.

ANALYSIS

Standard of Review

34Section 210 of the RTA deals with appeals from the Board. Sections 210(1), (4) and (5) state:

Appeal rights

210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. 2006, c. 17, s. 210 (1).

Powers of Court

(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Board with the opinion of the Divisional Court. 2006, c. 17, s. 210 (4).

Same

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper. 2006, c. 17, s. 210 (5).

35The parties agree, and I accept, that when dealing with the appeal of an alleged error of law, the standard of review is one of correctness as per Canada (Minister of Citizenship & Immigration) v. Vavilov, 209 SCC 65 at para. 37. In engaging in this review, the court is entitled to replace the tribunal’s view of the law with its own as per Vavilov at para. 54 and Housen v. Nikolaisen, 2002 SCC 33 at para. 8.

Jurisdiction

36Section 168(2) of the RTA describes the Board’s jurisdiction to deal with matters under the RTA:

Board’s jurisdiction

(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act. 2006, c. 17, s. 168 (2).

37Section 207 of the RTA describes situations where the Superior Court of Justice has jurisdiction based upon financial considerations:

Monetary jurisdiction of Board

207 (1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court. 2006, c. 17, s. 207 (1).

Same

(2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction. 2006, c. 17, s. 207 (2).

Same

(3) If a party makes a claim in an application for payment of a sum equal to or less than the Board’s monetary jurisdiction, all rights of the party in excess of the Board’s monetary jurisdiction are extinguished once the Board issues its order. 2006, c. 17, s. 207 (3).

Minimum amount

(4) The Board shall not make an order for the payment of an amount of money if the amount is less than the prescribed amount. 2006, c. 17, s. 207 (4).

38The Landlords are effectively asking this court to interpret sections 168 and 207 of the RTA to read that, where both Board and Superior Court proceedings are commenced, the Superior Court acquires exclusive jurisdiction over the proceedings.

39I disagree with that position.

40The Court of Appeal for Ontario recently reiterated the approach to be taken when engaging in statutory interpretation in R. v. Walsh, 2021 ONCA 43 at paras. 59 and 60:

It is trite law that the modern approach to statutory interpretation requires that "the words of an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26.

The starting point is to determine the ordinary meaning of the text: R. v. Wookey, [2016] O.J. No. 4158, 2016 ONCA 611, 351 O.A.C. 14, at para. 24. At para. 25 of Wookey, quoting from Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, at para. 30, and Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, [1993] S.C.J. No. 114, at p. 735 S.C.R., this court states that ordinary meaning "refers to the reader's first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context" and is "the natural meaning which appears when the provision is simply read through". In other words, the "plain" or "ordinary" meaning of a word is not dictated by its dictionary meaning nor is it frozen in time.

41Given the foregoing, the Board was correct in interpreting its own statute. The language of section 168 is clear, namely that the Board has exclusive jurisdiction to hear matters falling within the purview of the RTA. Conversely, under section 207 of the RTA, the Superior Court of Justice may exercise any power specifically allocated to the Board when a plaintiff/applicant seeks certain monetary relief. The discretionary nature of the Superior Court’s powers as delineated by the statute is such that the legislature gave the Superior Court the ability to decide whether it wished to exercise the powers in question. In this case, Dow J. chose not to exercise these powers by stating “it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant board. If any claims for damages remain, this action seeks same and remains available.”

42As such, the Board retained jurisdiction to hear the matter.

43This ground of appeal is therefore dismissed.

Abuse of Process

44In Trindade v. Janzi, the Divisional Court considered a situation where a Superior Court order terminated a tenancy. Subsequent to the entering of the consent order, an application was commenced at the Board for a determination that the RTA applied to the tenancy. The Divisional Court determined that the Board application was an abuse of process.

45Writing for the court, Favreau J. (as she then was), stated at para. 27:

As held in Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, at para. 36, the "doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings". In Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at para. 16, the Court of Appeal emphasized that a multiplicity of proceedings raising the same issues does not necessarily give rise to abuse of process in all cases. A finding of abuse of process depends on the circumstances and context of the case.

46Favreau J. then considered the unique aspects of Trindade v. Janzi. First, she found that the issues raised at the Board were identical to those raised in the Superior Court. Second, she found that no monetary remuneration was sought at the Board. Third, she found that there was no ongoing tenancy in Trindade v. Janzi. Accordingly, the Board proceedings were an abuse of process.

47At para. 32, Favreau J. stated that:

As a general rule, there is no doubt that the Board or a court should be cautious before finding that it is an abuse of process for a party to bring an application before the Board even if there are parallel proceedings before the court. The Board is meant to be a less expensive and more accessible forum in which tenants or landlords can assert their rights. However, in the unique circumstances of this case, where the only apparent purpose of the respondents' application before the Board is to shield against a judgment by the Court in proceedings in which the respondents can raise, and have raised, the same issues as before the Board, I have no difficulty in finding that the respondents' application to the Board for rent abatement is an abuse of process.

48In the case before us, the Member quoted the correct law and considered the evidence, including the Landlords’ putative forum shopping. On the aggregate, the Member found that the largely duplicative Board proceeding was not abusive in so far as the Board hearing was the most efficient use of the court’s time and the parties’ money. This view accords with the court’s view in Trindade v. Janzi. Further, the Member was correct when he found that, unlike Trindade v. Janzi, there was an ongoing tenancy in the matter being determined by him. As such, the factual matrix underpinning the finding of abuse of process in Trindade v. Janzi was not present in the instant case.

49Further, in this case, Dow J. effectively required the parties to attend before the Board when he stated:

To the contrary, it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant Board. If any claims for damages remain, this action seeks same and remains available…

The defendants’ decision to move back in, in my view, provides the best opportunity for the property to be properly maintained pending disposition of all of the disputes between the parties before the Landlord and Tenant Board.

50It is difficult to conceive of how a Board proceeding could constitute an abuse of process if the parties were being invited by the Superior Court to attend before the Board.

51Given the foregoing, the Member did not err in law in his treatment of abuse of process. There is no basis for this court to interfere in his determination that the Board proceeding did not constitute an abuse of process despite the Tenant’s forum shopping in that the Board hearing was the most efficient process available to the parties.

52This ground of appeal is dismissed.

The Definition of “Intended For Use”

53Section 2(1) of the RTA defines a “rental unit” as follows:

“rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,

(a) a site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises, and

(b) a room in a boarding house, rooming house or lodging house and a unit in a care home; (“logement locatif”)

54Section 9 of the RTA gives the Board the power to make determinations under the RTA:

Application to determine issues

9 (1) A landlord or a tenant may apply to the Board for an order determining,

(a) whether this Act or any provision of it applies to a particular rental unit or residential complex;

(b) any other prescribed matter. 2006, c. 17, s. 9 (1).

Order

(2) On the application, the Board shall make findings on the issue as prescribed and shall make the appropriate order. 2006, c. 17, s. 9 (2).

55The Landlords submit that the Member failed to adequately consider whether the premises in question constituted a “rental unit” subject to the RTA. Accordingly, the Landlords submit that the Member committed an error of law.

56The Landlords are incorrect in this submission. First, the Member considered the relevant evidence before him. He accepted Mr. Adler’s affidavit evidence that the Tenants intended to return to Toronto. Irrespective of any existing or non-existing corroborating evidence for this position, the Member was entitled to accept Mr. Adler’s evidence in this regard. Having done so, the Member was entitled to find that it was the parties’ intention that the premises would be used as a “rental unit” as per the definition of “rental unit” and that the RTA therefore applied to the tenancy under s. 9(1)(a) of the RTA. No error was committed by the Member in making such a finding. I also note that any appeal concerning the Member’s consideration of the evidence is a question of mixed fact and law and is not reviewable by this court given the RTA’s mandate that the Divisional Court only entertain appeals based upon alleged questions of law.

57Further, the Member considered Optimal Space v. Margana Holdings. The Member considered the relevant evidence and made findings based upon that evidence. Again, no error was committed in his analysis. Further, this ground of appeal is also based upon a question of mixed fact and law, which is not in the Divisional Court’s purview as noted above.

58This ground of appeal is therefore dismissed.

Were The Premises “Vacant”?

59Section 1 of the RTA sets out the purposes of the RTA:

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. 2006, c. 17, s. 1.

60Section 29(1) of the RTA empowers a tenant to make an application to the Board under certain circumstances:

Tenant applications

29 (1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

5. An order determining that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.

6. An order determining that the landlord, superintendent or agent of the landlord has illegally entered the rental unit. 2006, c. 17, s. 29 (1).

61Section 31(1) of the RTA describes orders that the Board may make if the Board finds that a landlord engaged in impugned conduct under s. 29 of the RTA:

Other orders re s. 29

31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;

(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,

(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and

(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;

(c) order an abatement of rent;

(d) order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;

(e) order that the tenancy be terminated;

(f) make any other order that it considers appropriate. 2006, c. 17, s. 31 (1).

62Section 31(3) of the RTA gives the Board certain powers once it determines that the rental unit is “vacant”:

(3) If the Board determines, in an application under paragraph 5 of subsection 29 (1), that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex, or caused the locking system to be altered, during the tenant’s occupancy of the rental unit without giving the tenant replacement keys, and if the Board is satisfied that the rental unit is vacant, the Board may, in addition to the remedies set out in subsections (1) and (2), order that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else. 2006, c. 17, s. 31 (3).

63The Landlords submit that the Member’s interpretation of the term “vacant” is not consistent with the typical meaning ascribed to that word, that is “being empty” or some derivative of that notion. Because the Landlords had moved back into the premises, the Member could not have found the premises to be “vacant”.

64The Landlords further submit that punitive remedies short of recovered possession are available to the Board in situations where a landlord illegally terminates a tenancy and takes possession of a rental unit. As such, the Landlord’s suggested interpretation would not leave the Board without the ability to impose a deterrent upon nefarious landlords.

65I disagree with this submission.

66First, the term “vacant” must be “read in [its] entire context, in [its] grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". As noted above, one of the purposes of the RTA is to “to provide protection for residential tenants from unlawful rent increases and unlawful evictions”. To read “vacant” in a literal or absolute sense, as was submitted by the Landlords, would permit landlords to profit from illegally evicting tenants. Indeed, one can easily imagine a situation where, in a tight rental market, a landlord could illegally end a tenancy and then move into the unit. The tenant in this example could be rendered homeless as a result of the landlord’s illegal actions and the Board would have no ability to give possession of the rental unit back to the blameless tenant. This result runs contrary to the purposes of the RTA which include protecting tenants from unlawful convictions. The Landlords’ suggested interpretation of the term “vacant” in s. 31(3) of the RTA cannot, therefore, be accepted. Rather, the term “vacant” must exclude situations where a landlord moves into a rental unit after having illegally terminated an otherwise legal tenancy. The Member was correct in making this finding.

67As for the ACTO’s submission that “vacant” ought to be interpreted so as to exclude situations where a landlord illegally terminates a tenancy and then rents the premises to a third party, I decline to deal with this issue as it does not arise on the facts before us.

68This ground of appeal is therefore dismissed.

CONCLUSION

69The Member committed no error in reaching his decision and, as such, the instant appeal is dismissed.

COSTS

70By agreement of the parties, the Landlords shall pay the Tenants $9,000 (inclusive of HST) for the costs associated with this appeal. This sum shall be paid within 60 days of the release of these reasons.

71Neither the Board nor the ACTO shall pay nor receive costs in this matter.

Varpio J.

Sachs J.

O’Brien J.

Released: December 2, 2022

CITATION: Minas v. Adler, 2022 ONSC 6706

DIVISIONAL COURT FILE NO.: DC-22-073-Appeal

Footnotes

1. 1The Landlords argued that they had three points on this appeal but in reality, they have four points because points one and two are alternative arguments regarding jurisdictional issues.