Naiman v. Lee, 2023 ONSC 511

CITATION: Naiman v. Lee, 2023 ONSC 511

DIVISIONAL COURT FILE NO.: 292/22

DATE: 20230112

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

McWatt ACSCJ, Sachs and Hackland JJ.

BETWEEN:

LEV NAIMAN

Brandon J. Carter, for the Tenant/Appellant

Appellant/Tenant

– and –

KEVIN LEE AND RICHARD LEE

Respondents/Landlords

Patrick K. Tadres, for the Respondents/ Landlords

HEARD at Toronto (by videoconference): January 12, 2023

Sachs J. (Orally)

1This is an appeal from an order of the Landlord and Tenant Board (the “Board”) dated May 4, 2022 (the “Order”). In the Order, the Board made a finding that the Landlords served a Notice of Termination in bad faith, but declined to award the Tenant any remedy pursuant to s.57(3) of the Residential Tenancies Act, 2006. According to the Tenant, the Board’s failure to make an order under s. 57(3) constituted an error in law.

2We disagree. First, the language of s. 57(3) is discretionary. In other words, the Board is not required to make an Order under s.57(3). It “may” do so.

3Second, the Tenant’s submissions as to how the Board erred in not making such an order, make it clear that the Tenant is disputing the Board’s factual findings. For example, the Tenant submits that the Board erred in law by not awarding the Tenant any portion of the increased rent that the Tenant incurred in the one-year period after vacating the rental unit. The Board declined to make such an award because it accepted the Landlords’ evidence that the Tenant could have obtained similar rental accommodation in the same neighbourhood for the same amount of rent. Instead, the Tenant chose to move from a one bedroom basement apartment in Toronto to a three bedroom dwelling in Orangeville. The Board was entitled to weigh the evidence, and having done so, to prefer the evidence of the Landlords over that of the Tenant. This was part of the Board’s fact-finding responsibility. It discloses no error in law.

4The same is true of the Tenant’s submission regarding his claim for moving expenses. In the absence of receipts, the Board did not accept that the Tenant had actually incurred $100 in moving expenses. This was a finding of credibility involving another aspect of the Board’s fact-finding responsibility.

5The Board also had a discretion to award general damages. However, it declined to do so because the Tenant made no request for general damages in his application. On the day of the hearing, which was peremptory to the Tenant, the Tenant sought to amend his application to include a claim for general damages. The Board declined to allow this amendment, finding that to do so at this late date would be prejudicial to the Landlords. This was a discretionary finding that discloses no error of law or principle.

6The Tenant also submits that the Board erred in law because it did not impose an administrative fine on the Landlords and did not award the Tenant any costs. The Board declined to impose an administrative fine because it found that an administrative fine “is a remedy to be used by the Board to encourage compliance with the Act and is not normally imposed unless a Landlord has shown a blatant disregard for the Act”. The Board found, on the facts of this case, that it was not appropriate to impose such a fine on these Landlords. This finding does not disclose an error of law. In terms of costs, the Board declined to award the Tenant any costs because success was divided. The Tenant succeeded in obtaining a finding of bad faith, but did not succeed in obtaining any remedy. This was an appropriate exercise of the Board’s discretion in terms of costs and discloses no error of law.

7For these reasons, the appeal is dismissed.

8In the absence of a costs outline from the Landlords, we fix their costs at $2,000, all inclusive.

Sachs J.

I agree

McWatt ACSCJ.

I agree

Hackland J.

Date of Oral Reasons for Judgment: January 12, 2023

Date of Written Release: January 23, 2023

CITATION: Naiman v. Lee, 2023 ONSC 511

DIVISIONAL COURT FILE NO.: 292/22