CITATION.: The Effort Trust Company v. Perron, 2025 ONSC 1632

COURT FILE NO.: DC-24-273

DATE.: 2025-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

THE EFFORT TRUST COMPANY

K. Ley, counsel for the Appellant

E. Fellman, counsel for the LTB Tribunal

Landlord/Appellant

• and -

SUSAN PERRON

Susan Perron, Self-Represented

Tenant/Respondent

HEARD: February 20, 2025

REASONS FOR DECISION

The Honourable Justice J. Krawchenko

Introduction

1This was appeal under section 210 of the Residential Tenancies Act, 2006 ("RTA") respecting a decision of the Landlord and Tenant Board ("LTB") ordering an abatement of rent to the tenant

2For reasons that will follow I dismiss the appeal.

The Facts

3The Respondent was a tenant in a residential unit on Jerome Crescent, Hamilton, Ontario. The unit was severely damaged by fire on 2 December 2020.

4The fire was caused by the careless conduct of a neighbouring tenant with no fault attributable to either the Landlord or the Tenant.

5It is uncontroverted that following the fire, the subject residential unit was uninhabitable. While the Landlord attempted to conduct repairs, its efforts were complicated and delayed due to the Covid 19 pandemic.

6Although the Tenant was unable to return to her unit, she continued to pay the Landlord rent.

7The Tenant ultimately decided to relocate to another residence effective 1 May 2021. The Landlord consented to the termination of the tenancy.

8The Tenant brought an application at the LTB alleging that (a) the Landlord had altered the locking system without proving her a replacement key, (b) that the Landlord had failed to meet its maintenance obligations under the RTA, she claimed $3,790.00 as an abatement of rent for the time that continued to pay her rent but was unable to occupy her rental unit.

9The adjudicator dismissed the first claim relating to alteration of the locking system. With regards to the second claim, the adjudicator found that notwithstanding a finding that the Landlord's delay in repairing the unit was reasonable due to the delays caused by COVID-19¹, section 20(1) required that the Landlord provide and maintain the rental unit in a good state of repair and fit for habitation and for complying with health, safety, housing, and maintenance standards. Further the adjudicator found that it was "undisputed that the unit was uninhabitable, and the Tenant was unable to return to the unit until the repairs were completed". The adjudicator concluded that because the Landlord was required to maintain the unit in a good state of repair and fit for habitation, in return for which the Tenant was obligated to pay rent, given that the unit was not in good state of repair or fit for habitation there was "...no rent due to the Landlord for this period of time."² The adjudicator ordered the Landlord to pay $3,688.16 to the Tenant as an abatement for the rental period from 3 December 2020 to 30 April 2021.

Position of the Landlord/Appellant

10The Appellant argued that the Order was unreasonable as it was based upon errors of law including:

a. The making of an order in the absence of an underlying breach of the RTA.

b. Insufficient reasons for rejecting the Landlord's submissions that had the Tenant maintained her own insurance, her insurer would have covered/paid the rent during the relevant period.

c. The adjudicator failed to consider the doctrine of frustration of contract but appeared to conclude that the fire ended the Landlord and Tenant's obligations to one another.

d. That the adjudicator made an error of law in finding that the unit's uninhabitable state terminated the Tenant's obligation to pay rent.

Position of the LTB

11The LTB argued that this appeal related to questions of mixed fact and law and accordingly this court did not have jurisdiction to hear it.

12The LTB also argued that in applying the correctness standard, this court could replace the opinion of the tribunal with its own, or as was stated in the Vavilov³ decision, "...the reviewing court may choose either to uphold the administrative decision maker's determination or to substitute its own view...While it should take the administrative decision maker's reasoning into account- and indeed, it may find that reasoning persuasive and adopt it- the reviewing court is ultimately empowered to come to its own conclusions on the question."

Jurisdiction and Standard of Review

13Section 210 of the Residential Tenancies Act provides:

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. (emphasis added).

210(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.

210(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.

14In summary, section 210 of the RTA limits appeals to this court on questions of law only, on which the standard of review is correctness.

Analysis

15I turn first to the important question of whether this is an appeal on the question of law or mixed law and fact.

16The Supreme Court in Housen v Nikolaisen 2022, SCC 33 at para 36 wrote that "Appellate courts must be cautious...as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed fact and law". Where the legal principle is not readily extricable, then the matter is one of "mixed fact and law"..." Put another way, questions of law are questions about what the correct legal test is, while questions of fact are about what took place between the parties and finally, questions of mix law and fact are questions about whether the facts satisfy the legal tests.

17On the evidence, the adjudicator made a factual determination on the uncontroverted evidence that the subject unit was uninhabitable a finding that is entitled to deference. This was in violation of the clear wording of section 20(1) which then provided the member with the authority to determine and fashion the appropriate remedy permitted under the Act, which in this case was an abatement of rent. This was a question of mixed fact and law therefore there is no jurisdiction to advance this appeal.

18If I am incorrect in that determination, I would still dismiss the application on the basis that the member made no error in so far as:

a. the adjudicator found a breach of section 20(1) that was supported by the evidence;

b. having found a breach, the member exercised her discretion to fashion a remedy that was available to the tribunal i.e. and abatement of rent⁴;

c. the adjudicator provided full reasons for this finding and for the remedy of abatement.

On this basis I would find the decision in law to be correct.

19The appellant has raised the issue of frustration of contracts, which was not considered by the tribunal, and for good reason as the tenancy was terminated with the consent of the Landlord effective 30 April 2021. This was a red herring. On this point, counsel for the Appellant conceded that if this was a situation of a frustrated contract, the contract would have been frustrated as of the date of the fire and any rent paid by the Tenant would have been paid in error and would have had to be returned.

Disposition

20The appeal is dismissed.

21If the parties cannot agree on costs, they may each make brief written submission of no greater than 2 pages in length, double spaced, excluding bills of costs and offers to settle. Submissions shall be made through the trial coordinator's office, with the Respondent delivering same by no later than 28 March 2025 and the Appellant by no later than 04 April 2025. Late submissions will not be considered.

Footnotes

1. 1Paragraph 28 of the Order under Section 31 of the Residential Tenancies Act 2006.
2. 2Paragraph 34 of the Order under Section 31 of the Residential Tenancies Act 2006.
3. 3Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65
4. 4Section 30 of the RTA provides that if the Board determines that a landlord has breach an obligation under section 20(1), one of the 9 available remedies is an order for an abatement of rent.