CITATION: EQB v. JOUNG, 2025 ONSC 4343
DIVISIONAL COURT FILE NO.: DC-23-23
DATE: 2025 07 24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(JUSTICE IVAN S. BLOOM)
BETWEEN:
EQB LTD.
Timothy Duggan, counsel for the Appellant
Landlord (Appellant)
- and -
MI JOUNG JOUNG and SUCKHO HAN
Anna Solomon, counsel for the Landlord and Tenant Board
Tenants (Respondents)
HEARD: March 6 and May 28, 2025
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] This appeal raises two issues: (1) the right of the Landlord and Tenant Board (hereinafter the “Board”) to participate in the appeal after the landlord and tenants had settled their dispute as reflected in my endorsement of March 6, 2025, and (2) the merits of the appeal.
II. PROCEDURAL BACKGROUND
[2] Suckho Han and Mi Joung Joung had been tenants and EQB Ltd., the landlord, in respect of a rental unit, unit 307, 3041 Jaguar Valley Drive, Mississauga, Ontario. The tenants were husband and wife.
[3] The tenants applied to the Board for an order determining that the landlord had harassed, obstructed, threatened or interfered with them, and had substantially interfered with their reasonable enjoyment of the rental unit, or the residential complex in which it was located.
[4] The tenants also applied for an order determining that the landlord had given them a notice of termination in bad faith.
[5] The applications were heard by the Board on September 8, 2022.
[6] The Board on March 27, 2023 made an order in the matter of the applications.
[7] The landlord appealed this order to this court.
[8] On March 6, 2025 I made an endorsement in the matter of the appeal in which, inter alia, I found that the tenants had signed a consent with the landlord agreeing to retract the allegations made in their applications, and to abandon those applications; and agreeing further to an order of this court setting aside the Board order dated March 27, 2023, except for the administrative fine of $10,000 payable by the landlord.
[9] In that endorsement I also noted that the Board wished to make submissions on the appeal in support of the findings made in the order of March 27, 2023 and the fine, despite the consent, but did not oppose an order allowing settlement only as between the landlord and the tenants.
[10] As a result in the endorsement I allowed the appeal of the March 27, 2023 order, except to the extent that I left in place the portion of the order imposing on the landlord the administrative fine of $10,000 payable to the Board.
[11] Further, I ordered that the landlord and Board address on the appeal two issues: (1) whether the Board could properly make submissions on the appeal to support findings and dispositions, when the landlord and tenants had settled their dispute, which was the subject of the appeal; and (2) if the court answers that first question in the affirmative, whether the findings of the Board in its order of March 27, 2023 and paragraphs 4. and 7. of the order on page 31 of it, should be maintained.
[12] On May 28, 2025 I heard the landlord and Board on the first issue. I then reserved decision on it. At the same time I informed the landlord and Board that I would hear them on the second issue, but would, in making my decision on the appeal, only consider arguments of the Board on the second issue which fit within the ambit of my decision on the first issue. Having heard argument on both issues, I will now address each of those questions.
III. PROPER ROLE OF THE BOARD ON THE APPEAL
A. SUBMISSIONS OF THE BOARD AND LANDLORD
1. Submissions of the Board
[13] The Board argues that, despite the consent of the landlord and tenants, the determinations in the order of March 27, 2023 stand and the issue of the administrative fine remains outstanding.
[14] The Board contends that it is entitled to be heard through counsel upon the argument of any issue in the appeal.
[15] The Board submits that, absent its consent, a landlord and a tenant cannot agree to set aside an administrative fine to resolve an appeal.
[16] The Board states that it can participate in an appeal as of right by virtue of s. 210 of the Residential Tenancies Act, 2006 (hereinafter the “RTA”). Further, the Court has discretion to determine the scope of the Board’s participation in the appeal. Particularly germane to the exercise of the discretion in the case at bar where no other well-informed party stands opposed to the submissions of the Appellant, is the value of the Board’s assistance to the Court in coming to a fully informed adjudication of the issues.
[17] Specifically, the Board contends that the Court should exercise its discretion to permit it to make informational submissions regarding administrative fines, submissions regarding the statutory context, submissions as to what makes administrative fines different from compensation ordered to be paid by a landlord to a tenant, and submissions as to how determinations regarding administrative fines relate to the scope of an appeal.
2. Submissions of the Appellant Landlord
[18] The Landlord argues that, in the case at bar, there is no longer any issue in the appeal between the landlord and tenants.
[19] Accordingly, in the absence of a live dispute between the landlord and tenants, the Board has no standing to advance any argument on the appeal. In particular, it would be impermissible for the Board to argue the merits of its own order or of its own findings.
B. GOVERNING LEGAL PRINCIPLES
1. Applicable Statutory Provisions
[20] Sections 210 and 211 of the RTA provide:
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).
Board to receive notice
(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal. 2006, c. 17, s. 210 (2).
Board may be heard by counsel
(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal. 2006, c. 17, s. 210 (3).
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).
Board may appeal Court decision
211 The Board is entitled to appeal a decision of the Divisional Court on an appeal of a Board order as if the Board were a party to the appeal. 2006, c. 17, s. 211.
2. Principles Set Out by the Courts
[21] In Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R 147 at paras. 41 to 72 Justice Rothstein for the majority discussed the principles applicable to the role of an administrative tribunal in a matter such as the one before me:
A. The Appropriate Role of the Board in This Appeal
(1) Tribunal Standing
41 In Northwestern Utilities Ltd. v. City of Edmonton, 1978 17 (SCC), [1979] 1 S.C.R. 684 ("Northwestern Utilities"), per Estey J., this Court first discussed how an administrative decision-maker's participation in the appeal or review of its own decisions may give rise to concerns over tribunal impartiality. Estey J. noted that "active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and [page172] issues or the same parties" (p. 709). He further observed that tribunals already receive an opportunity to make their views clear in their original decisions: "... it abuses one's notion of propriety to countenance its participation as a full-fledged litigant in this Court" (p. 709).
42 The Court in Northwestern Utilities ultimately held that the Alberta Public Utilities Board - which, like the Ontario Energy Board, had a statutory right to be heard on judicial appeal (see Ontario Energy Board Act, 1998, s. 33(3)) - was limited in the scope of the submissions it could make. Specifically, Estey J. observed that
[i]t has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction. [p. 709]
43 This Court further considered the issue of agency standing in CAIMAW v. Paccar of Canada Ltd., 1989 49 (SCC), [1989] 2 S.C.R. 983, which involved judicial review of a British Columbia Labour Relations Board decision. Though a majority of the judges hearing the case did not endorse a particular approach to the issue, La Forest J., Dickson C.J. concurring, accepted that a tribunal had standing to explain the record and advance its view of the appropriate standard of review and, additionally, to argue that its decision was reasonable.
44 This finding was supported by the need to make sure the Court's decision on review of the tribunal's decision was fully informed. La Forest J. cited B.C.G.E.U. v. Indust. Rel. Council (1988), 1988 2812 (BC CA), 26 B.C.L.R. (2d) 145 (C.A.), at p. 153, for the proposition that the tribunal is the party best equipped to draw the Court's attention to
[page173]
those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area.
(Paccar, at p. 1016)
La Forest J. found, however, that the tribunal could not go so far as to argue that its decision was correct (p. 1017). Though La Forest J. did not command a majority, L'Heureux-Dubé J. also commented on tribunal standing in her dissent, and agreed with the substance of La Forest J.'s analysis (p. 1026).
45 Trial and appellate courts have struggled to reconcile this Court's statements in Northwestern Utilities and Paccar. Indeed, while this Court has never expressly overturned Northwestern Utilities, on some occasions, it has permitted tribunals to participate as full parties without comment: see, e.g., McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; Tremblay v. Quebec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952; see also Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner) (2005), 2005 11786 (ON CA), 75 O.R. (3d) 309 ("Goodis"), at para. 24.
46 A number of appellate decisions have grappled with this issue and "for the most part now display a more relaxed attitude in allowing tribunals to participate in judicial review proceedings or statutory appeals in which their decisions were subject to attack": D. Mullan, "Administrative Law and Energy Regulation", in G. Kaiser and B. Heggie, 35, at p. 51. A review of three appellate decisions suffices to establish the rationale behind this shift.
47 In Goodis, the Children's Lawyer urged the court to refuse or limit the standing of the Information and Privacy Commissioner, whose decision [page174] was under review. The Ontario Court of Appeal declined to apply any formal, fixed rule that would limit the tribunal to certain categories of submissions and instead adopted a contextual, discretionary approach: Goodis, at paras. 32-34. The court found no principled basis for the categorical approach, and observed that such an approach may lead to undesirable consequences:
For example, a categorical rule denying standing if the attack asserts a denial of natural justice could deprive the court of vital submissions if the attack is based on alleged deficiencies in the structure or operation of the tribunal, since these are submissions that the tribunal is uniquely placed to make. Similarly, a rule that would permit a tribunal standing to defend its decision against the standard of reasonableness but not against one of correctness, would allow unnecessary and prevent useful argument. Because the best argument that a decision is reasonable may be that it is correct, a rule based on this distinction seems tenuously founded at best as Robertson J.A. said in United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd., 2002 NBCA 27, [2002] N.B.J. No. 114, 249 N.B.R. (2d) 93 (C.A.), at para. 32.
(Goodis, at para. 34)
48 The court held that Northwestern Utilities and Paccar should be read as the source of "fundamental considerations" that should guide the court's exercise of discretion in the context of the case: Goodis, at para. 35. The two most important considerations, drawn from those cases, were the "importance of having a fully informed adjudication of the issues before the court" (para. 37), and "the importance of maintaining tribunal impartiality": para. 38. The court should limit tribunal participation if it will undermine future confidence in its objectivity. The court identified a list of factors, discussed further below, that may aid in determining whether and [page175] to what extent the tribunal should be permitted to make submissions: paras. 36-38.
49 In Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3, Stratas J.A. identified two common law restrictions that, in his view, restricted the scope of a tribunal's participation on appeal from its own decision: finality and impartiality. Finality, the principle whereby a tribunal may not speak on a matter again once it has decided upon it and provided reasons for its decision, is discussed in greater detail below, as it is more directly related to concerns surrounding "bootstrapping" rather than agency standing itself.
50 The principle of impartiality is implicated by tribunal argument on appeal, because decisions may in some cases be remitted to the tribunal for further consideration. Stratas J.A. found that "[s]ubmissions by the tribunal in a judicial review proceeding that descend too far, too intensely, or too aggressively into the merits of the matter before the tribunal may disable the tribunal from conducting an impartial redetermination of the merits later": Quadrini, at para. 16. However, he ultimately found that these principles did not mandate "hard and fast rules", and endorsed the discretionary approach set out by the Ontario Court of Appeal in Goodis: Quadrini, at paras. 19-20.
51 A third example of recent judicial consideration of this issue may be found in Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.), 2011 ABCA 94, 502 A.R. 110. In this case, Leon's Furniture challenged the Commissioner's standing to make submissions on the merits of the appeal (para. 16). The Alberta Court of Appeal, too, adopted the position that the law should respond to the fundamental concerns raised in Northwestern [page176] Utilities but should nonetheless approach the question of tribunal standing with discretion, to be exercised in view of relevant contextual considerations: paras. 28-29.
52 The considerations set forth by this Court in Northwestern Utilities reflect fundamental concerns with regard to tribunal participation on appeal from the tribunal's own decision. However, these concerns should not be read to establish a categorical ban on tribunal participation on appeal. A discretionary approach, as discussed by the courts in Goodis, Leon's Furniture, and Quadrini, provides the best means of ensuring that the principles of finality and impartiality are respected without sacrificing the ability of reviewing courts to hear useful and important information and analysis: see N. Semple, "The Case for Tribunal Standing in Canada" (2007), 20 C.J.A.L.P. 305; L. A. Jacobs and T. S. Kuttner, "Discovering What Tribunals Do: Tribunal Standing Before the Courts" (2002), 81 Can. Bar Rev. 616; F. A. V. Falzon, "Tribunal Standing on Judicial Review" (2008), 21 C.J.A.L.P. 21.
53 Several considerations argue in favour of a discretionary approach. Notably, because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome. For example, a tribunal may be able to explain how one interpretation of a statutory provision might impact other provisions within the regulatory scheme, or the factual and legal realities of the specialized field in which they work. Submissions of this type may be harder for other parties to present.
54 Some cases may arise in which there is simply no other party to stand in opposition to the party challenging the tribunal decision. Our judicial review processes are designed to function best when both sides of a dispute are argued vigorously before the reviewing court. In a situation where no other well-informed party stands opposed, the presence of a tribunal as an adversarial party may help the court [page177] ensure it has heard the best of both sides of a dispute.
55 Canadian tribunals occupy many different roles in the various contexts in which they operate. This variation means that concerns regarding tribunal partiality may be more or less salient depending on the case at issue and the tribunal's structure and statutory mandate. As such, statutory provisions addressing the structure, processes and role of the particular tribunal are key aspects of the analysis.
56 The mandate of the Board, and similarly situated regulatory tribunals, sets them apart from those tribunals whose function it is to adjudicate individual conflicts between two or more parties. For tribunals tasked with this latter responsibility, "the importance of fairness, real and perceived, weighs more heavily" against tribunal standing: Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476, 344 D.L.R. (4th) 292, at para. 42.
57 I am thus of the opinion that tribunal standing is a matter to be determined by the court conducting the first-instance review in accordance with the principled exercise of that court's discretion. In exercising its discretion, the court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality.
58 In this case, as an initial matter, the Ontario Energy Board Act, 1998 expressly provides that "[t]he Board is entitled to be heard by counsel upon the argument of an appeal" to the Divisional Court: s. 33(3). This provision neither expressly grants the Board standing to argue the merits of the decision on appeal, nor does it expressly limit the Board to jurisdictional or standard-of-review arguments as was the case for the relevant statutory provision in Quadrini: see para. 2.
[page178]
59 In accordance with the foregoing discussion of tribunal standing, where the statute does not clearly resolve the issue, the reviewing court must rely on its discretion to define the tribunal's role on appeal. While not exhaustive, I would find the following factors, identified by the courts and academic commentators cited above, are relevant in informing the court's exercise of this discretion:
(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.
(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.
(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.
60 Consideration of these factors in the context of this case leads me to conclude that it was not improper for the Board to participate in arguing in favour of the reasonableness of its decision on appeal. First, the Board was the only respondent in the initial review of its decision. Thus, it had no alternative but to step in if the decision was to be defended on the merits. Unlike some other provinces, Ontario has no designated utility consumer advocate, which left the Board - tasked by statute [page179] with acting to safeguard the public interest - with few alternatives but to participate as a party.
61 Second, the Board is tasked with regulating the activities of utilities, including those in the electricity market. Its regulatory mandate is broad. Among its many roles: it licenses market participants, approves the development of new transmission and distribution facilities, and authorizes rates to be charged to consumers. In this case, the Board was exercising a regulatory role by setting just and reasonable payment amounts to a utility. This is unlike situations in which a tribunal may adjudicate disputes between two parties, in which case the interests of impartiality may weigh more heavily against full party standing.
62 The nature of utilities regulation further argues in favour of full party status for the Board here, as concerns about the appearance of partiality are muted in this context. As noted by Doherty J.A., "[l]ike all regulated bodies, I am sure Enbridge wins some and loses some before the [Board]. I am confident that Enbridge fully understands the role of the regulator and appreciates that each application is decided on its own merits by the [Board]": Enbridge, at para. 28. Accordingly, I do not find that the Board's participation in the instant appeal was improper. It remains to consider whether the content of the Board's arguments was appropriate.
(2) Bootstrapping
63 The issue of tribunal "bootstrapping" is closely related to the question of when it is proper for a tribunal to act as a party on appeal or judicial review of its decision. The standing issue concerns what types of argument a tribunal may make, i.e. [page180] jurisdictional or merits arguments, while the bootstrapping issue concerns the content of those arguments.
64 As the term has been understood by the courts who have considered it in the context of tribunal standing, a tribunal engages in bootstrapping where it seeks to supplement what would otherwise be a deficient decision with new arguments on appeal: see, e.g., United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd., 2002 NBCA 27, 249 N.B.R. (2d) 93. Put differently, it has been stated that a tribunal may not "defen[d] its decision on a ground that it did not rely on in the decision under review": Goodis, at para. 42.
65 The principle of finality dictates that once a tribunal has decided the issues before it and provided reasons for its decision, "absent a power to vary its decision or rehear the matter, it has spoken finally on the matter and its job is done": Quadrini, at para. 16, citing Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848. Under this principle, the court found that tribunals could not use judicial review as a chance to "amend, vary, qualify or supplement its reasons": Quadrini, at para. 16. In Leon's Furniture, Slatter J.A. reasoned that a tribunal could "offer interpretations of its reasons or conclusion, [but] cannot attempt to reconfigure those reasons, add arguments not previously given, or make submissions about matters of fact not already engaged by the record": para. 29.
66 By contrast, in Goodis, Goudge J.A. found on behalf of a unanimous court that while the Commissioner had relied on an argument not expressly set out in her original decision, this argument was available for the Commissioner to make on appeal. Though he recognized that "[t]he importance of reasoned decision making may be undermined if, when attacked in court, a tribunal can simply offer different, better, or even contrary reasons to [page181] support its decision" (para. 42), Goudge J.A. ultimately found that the Commissioner was permitted to raise a new argument on judicial review. The new argument presented was "not inconsistent with the reason offered in the decision. Indeed it could be said to be implicit in it": para. 55. "It was therefore proper for the Commissioner to be permitted to raise this argument before the Divisional Court and equally proper for the court to decide on that basis": para. 58.
67 There is merit in both positions on the issue of bootstrapping. On the one hand, a permissive stance toward new arguments by tribunals on appeal serves the interests of justice insofar as it ensures that a reviewing court is presented with the strongest arguments in favour of both sides: Semple, at p. 315. This remains true even if those arguments were not included in the tribunal's original reasons. On the other hand, to permit bootstrapping may undermine the importance of reasoned, well-written original decisions. There is also the possibility that a tribunal, surprising the parties with new arguments in an appeal or judicial review after its initial decision, may lead the parties to see the process as unfair. This may be particularly true where a tribunal is tasked with adjudicating matters between two private litigants, as the introduction of new arguments by the tribunal on appeal may give the appearance that it is "ganging up" on one party. As discussed, however, it may be less appropriate in general for a tribunal sitting in this type of role to participate as a party on appeal.
68 I am not persuaded that the introduction of arguments by a tribunal on appeal that interpret or were implicit but not expressly articulated in its original decision offends the principle of finality. Similarly, it does not offend finality to permit a tribunal to explain its established policies and practices to the reviewing court, even if those were not described in the reasons under review. Tribunals need not repeat explanations of such practices in every decision merely to guard against charges of bootstrapping should they be called upon to explain them on appeal or review. A tribunal may also [page182] respond to arguments raised by a counterparty. A tribunal raising arguments of these types on review of its decision does so in order to uphold the initial decision; it is not reopening the case and issuing a new or modified decision. The result of the original decision remains the same even if a tribunal seeks to uphold that effect by providing an interpretation of it or on grounds implicit in the original decision.
69 I am not, however, of the opinion that tribunals should have the unfettered ability to raise entirely new arguments on judicial review. To do so may raise concerns about the appearance of unfairness and the need for tribunal decisions to be well reasoned in the first instance. I would find that the proper balancing of these interests against the reviewing courts' interests in hearing the strongest possible arguments in favour of each side of a dispute is struck when tribunals do retain the ability to offer interpretations of their reasons or conclusions and to make arguments implicit within their original reasons: see Leon's Furniture, at para. 29; Goodis, at para. 55.
70 In this case, I do not find that the Board impermissibly stepped beyond the bounds of its original decision in its arguments before this Court. In its reply factum, the Board pointed out - correctly, in my view - that its submissions before this Court simply highlight what is apparent on the face of the record, or respond to arguments raised by the respondents.
71 I would, however, urge the Board, and tribunal parties in general, to be cognizant of the tone they adopt on review of their decisions. As Goudge J.A. noted in Goodis:
... if an administrative tribunal seeks to make submissions on a judicial review of its decision, it [should] pay careful attention to the tone with which it does so. Although this is not a discrete basis upon which its standing might be limited, there is no doubt that the tone [page183] of the proposed submissions provides the background for the determination of that issue. A tribunal that seeks to resist a judicial review application will be of assistance to the court to the degree its submissions are characterized by the helpful elucidation of the issues, informed by its specialized position, rather than by the aggressive partisanship of an adversary. [para. 61]
72 In this case, the Board generally acted in such a way as to present helpful argument in an adversarial but respectful manner. However, I would sound a note of caution about the Board's assertion that the imposition of the prudent investment test "would in all likelihood not change the result" if the decision were remitted for reconsideration (A.F., at para. 99). This type of statement may, if carried too far, raise concerns about the principle of impartiality such that a court would be justified in exercising its discretion to limit tribunal standing so as to safeguard this principle.
C. ANALYSIS
[22] I have considered the submissions of the Board and the landlord, and the governing statutory provisions and case law.
[23] I have had regard specifically to the statutory context, which does not resolve the issue of the role of the Board before me.
[24] I have determined from the case law that I have a discretion as to the extent to which the Board is entitled to participate in the appeal, in view of the settlement of the issues as between the landlord and tenants.
[25] I take into account the desirability of a fully-informed adjudication on the issue of the administrative fine, given the lack of submissions from the tenants.
[26] I also have regard to the importance of maintaining the impartiality of the Board as a tribunal.
[27] I am cognizant that the issue to be addressed, that is the administrative fine, is one engaging the broader public interest; it is not simply a matter of adjudication of a dispute between the landlord and tenants.
[28] Accordingly, I hold that I should consider only Board submissions regarding the nature and purpose of administrative fines on this appeal. I shall govern my consideration of the merits of the appeal by this holding.
IV. THE MERITS OF THE APPEAL
A. APPELLANT’S SUBMISSIONS
[29] The Appellant submits that the applicable standard of review on the merits of the appeal is correctness, in view of the limitation of the appeal to questions of law by virtue of s. 210(1) of the RTA.
[30] The Appellant contends that the Board erred in law in finding that the Notice of Termination in issue was invalid for three reasons. Those were that it was not signed by the tenant, Joung; it was signed under false pretenses by the tenant, Han; and it was in Form N9 instead of Form N11.
[31] The Appellant argues that the first reason was an error in property law principles; the second was an error in law as a consequence of being based on no evidence or being made in disregard of relevant evidence; and the third was an application of incorrect legal principles.
[32] Further, the Appellant contends that the Board erred in not giving effect to the Full and Final Release in the matter.
[33] The Appellant argues that as a matter of law the administrative fine cannot stand in light of the tenants’ retraction of the allegations in their applications and abandonment of those applications. The Appellant argues that this result is consistent with fairness.
[34] Additionally, the Appellant submits that in the case at bar s. 57(1)(b) of the RTA was not satisfied; and that, therefore, an administrative fine was not available under s. 57(3) of the act.
B. SUBMISSIONS OF THE BOARD
[35] The Board submits that an administrative fine serves a public protection purpose. It is meant to deter a landlord who has shown blatant disregard for the RTA from committing similar breaches in the future in respect of any tenancy.
C. RULING BY THE BOARD
[36] The Board ruling in issue was dated March 27, 2023.
[37] It addressed the application by Joung and Han, the tenants, for an order that the landlord had harassed, obstructed, coerced, threatened or interfered with the tenants, and substantially interfered with their reasonable enjoyment of their unit or the residential complex in which it was located.
[38] The order also addressed the tenants’ application for an order determining that the landlord had given a notice of termination in bad faith.
[39] The tenants were spouses.
[40] Han testified for the tenants.
[41] Seale, its property manager, testified for the landlord.
[42] The material events occurred in the period 2019 to 2020.
[43] The Board found that the N9 Form Notice of Termination signed by Han was invalid, because it was signed only by him, and not also by Joung, the other tenant.
[44] The Board further found that, in accordance with s. 202 of the RTA, the substance of the transaction as a two-sided transaction initiated by the landlord and agreed to by the tenants, required the use of a N11 Form Notice of Termination rather than a N9 Form Notice of Termination. The Board found that an N9 Form should only be used if the tenants reached out on their own to terminate the tenancy.
[45] The Board found that the landlord had substantially interfered with the tenants’ reasonable enjoyment of the rented premises by securing an end of the tenancy by repeated behaviour, including using unsolicited documentation and offer of money. The Board in that finding also had regard to the tenants’ vacation of their unit, where they had lived since 2007, and to the fact that the end of the tenancy resulted in their having to rent a much smaller unit at an increase in rent of over $700 per month.
[46] The Board also found that the landlord had secured the N9 Notice by falsely stating to the tenants that the unit was being purchased, when there was no purchaser.
[47] The Board found that bad faith on the part of the landlord was established under s. 57(1)(b) of the RTA.
[48] The Board found that the bad faith of the landlord was established, because it deliberately misled the tenants into terminating their tenancy on the basis that their unit was being sold, and because the landlord did not provide the required information to the tenants as to their rights. Moreover, the $5000 the tenants received on termination as an incentive to terminate was found to have been consumed quickly by the elevated rent on their new unit.
[49] Having determined that the landlord substantially interfered with the tenants and that the Notice of Termination resulted from the landlord’s bad faith, the Board addressed remedies, including the issue of an administrative fine.
[50] The Board, based on the assessment that the landlord had repeated the bad faith conduct with 15 tenants, including those in the case at bar, and the assessment that the landlord had by that means profited by over $90,000 in the first year alone, imposed the $10,000 administrative fine. The Board also considered in that determination that the landlord was a corporation, that the residential complex involved contained many floors and units, and that the profit on the unit of Han and Joung in the first year had been over $6000.
[51] The Board stated that the fine was imposed “to deter further behaviour of substantial interference or bad faith, and to stop them [(the landlord)] from serving letters or putting up posters with information contrary to the Act or factually untrue (threatening purchasers are moving in when there are no purchaser).”
[52] The $10,000 fine was payable to the Board by April 7 2023.
D. ANALYSIS
1. Purpose of an Administrative Fine
[53] The issue before me is whether the administrative fine of $10,000 ought to be maintained.
[54] I accept that as a matter of law under s. 57(3) paragraph 3. of the RTA the purpose of an administrative fine is to protect the public by deterring future violations of the act by the landlord in the case at bar, and other landlords. The fine is not a remedy as between the landlord and tenants; indeed, it is payable to the Board and not the tenants.
[55] Having regard to this finding of law, I must now determine whether on the merits of the case the fine imposed was based on an error of law, the statutorily imposed ground for appeal. The standard of review is correctness.
2. The Statutory Context
[56] The statutory provisions in the RTA relied upon by the Board in its reasons for the fine were:
Notice, purchaser personally requires unit
49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,
(a) the purchaser;
(b) the purchaser’s spouse;
(c) a child or parent of the purchaser or the purchaser’s spouse; or
(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (1); 2021, c. 4, Sched. 11, s. 31 (1).
Same, condominium
(2) If a landlord who is an owner as defined in clause (a) or (b) of the definition of “owner” in subsection 1 (1) of the Condominium Act, 1998 owns a unit, as defined in subsection 1 (1) of that Act, that is a rental unit and has entered into an agreement of purchase and sale of the unit, the landlord may, on behalf of the purchaser, give the tenant of the unit a notice terminating the tenancy, if the purchaser in good faith requires possession of the unit for the purpose of residential occupation by,
(a) the purchaser;
(b) the purchaser’s spouse;
(c) a child or parent of the purchaser or the purchaser’s spouse; or
(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (2); 2021, c. 4, Sched. 11, s. 31 (1).
Period of notice
(3) The date for termination specified in a notice given under subsection (1) or (2) shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 49 (3).
Earlier termination by tenant
(4) A tenant who receives notice of termination under subsection (1) or (2) may, at any time before the date specified in the notice, terminate the tenancy, effective on a specified date earlier than the date set out in the landlord’s notice. 2006, c. 17, s. 49 (4).
Same
(5) The date for termination specified in the tenant’s notice shall be at least 10 days after the date the tenant’s notice is given. 2006, c. 17, s. 49 (5).
Former tenant’s application where notice given in bad faith
57 (1) The Board may make an order described in subsection (3) if, on application by a former tenant of a rental unit, the Board determines that,
(a) the landlord gave a notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit;
(b) the landlord gave a notice of termination under section 49 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and no person referred to in clause 49 (1) (a), (b), (c) or (d) or 49 (2) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit; or
(c) the landlord gave a notice of termination under section 50 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and the landlord did not demolish, convert or repair or renovate the rental unit within a reasonable time after the former tenant vacated the rental unit. 2006, c. 17, s. 57 (1).
Orders
(3) The orders referred to in subsection (1) are the following:
- An order that the landlord pay a specified sum to the former tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit.
1.1 An order that the landlord pay a specified sum to the former tenant as general compensation in an amount not exceeding the equivalent of 12 months of the last rent charged to the former tenant. An order under this paragraph may be made regardless of whether the former tenant has incurred any actual expenses or whether an order is made under paragraph 2.
1.2 An order that the landlord pay a specified sum to the former tenant for reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur.
An order for an abatement of rent.
An 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.
Any other order that the Board considers appropriate. 2006, c. 17, s. 57 (3); 2020, c. 16, Sched. 4, s. 9 (1).
Findings of Board
202 (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit. 2006, c. 17, s. 202.
Exception
(2) Subsection (1) does not apply to an application made under Part V.1. 2013, c. 3, s.
[57] Also relevant is s. 212 of the act which provides:
Substantial compliance sufficient
212 (1) Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient. 2006, c. 17, s. 212.
When error still constitutes substantial compliance
(2) For greater certainty, an error in the contents of a form, notice or document still constitutes substantial compliance with this Act, as long as the error does not significantly prejudice a party’s ability to participate in a proceeding under this Act. 2024, c. 28, Sched. 24, s. 1.
[58] Further, I also have regard to s. 210 of the act set out above, but which I reproduce again for convenience:
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).
Board to receive notice
(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal. 2006, c. 17, s. 210 (2).
Board may be heard by counsel
(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal. 2006, c. 17, s. 210 (3).
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).
3. The Fine Imposed is Not Based on an Error of Law and Must be Affirmed
[59] It is clear from the ruling of the Board that it found that the landlord had purported to employ s. 49 (1) of the RTA. The Board then relied upon s. 57(1)(b) to make an order under s. 57(3) paragraph 3. for an administrative fine.
[60] I shall now explain why I find no error of law in that chain of reasoning.
[61] In paragraphs 68 to 94 of its ruling under the heading “Analysis-T5” the Board explicitly found that the tenants had established the 3 components of the test set out by s. 57(1)(b) of the RTA; as noted, the test as applied by the Board in the case at bar relied upon the landlord’s having given a notice of termination purportedly under s. 49(1) of the act. Paragraphs 81 to 84 made clear that the Board was not placing reliance upon s. 49 (2) of the RTA; nor does the Appellant rely upon s. 49 (2).
[62] Then, in paragraphs 95 to 101 under the heading “Remedies” the Board imposed the $10,000 fine in issue under s. 57(3) of the act.
[63] S. 57(1)(b) sets out a test which is a precondition for an order to be made under s. 57(3).
[64] S. 49(1) explicitly relates to “a residential complex that contains no more than three residential units.” However, in paragraphs 78, 84, and 100 of the “Determinations” in its ruling the Board clearly found that there were more than 3 residential units in the residential complex involved in the case at bar.
[65] It is thus clear that s. 49 (1) not be used as a basis for a notice of termination.
[66] The Appellant argues that a “cash for keys” transaction in the case at bar takes the matter out of s. 49 (1).
[67] The Board, however, in a finding of mixed fact and law at paragraphs 54, 55, and 84 of the ruling employed s. 202 of the RTA to determine that the substance of the transaction was a bad faith use by the landlord of s. 49 (1) of the act.
[68] That finding was open to the Board on the evidentiary record, as was the interrelated finding that s. 57 (1)(b) of the act was satisfied. The Board found at paragraph 63 of the ruling:
Unsolicited, the Tenants were given an incentive move out letter by Ms. Seale under their door. The letter misled the Tenants into believing their unit was being bought in 2020 by a purchaser,… [T]here was no real purchaser actually buying the rental unit, and …they could not actually give such a notice since the building had more than 3 residential units in it.
[69] Paragraph 85, 88, 89, 90 and 94 of the ruling support the finding that s. 57 (1)(b) of the act was satisfied. Moreover, they demonstrate the importance of findings of credibility by the Board on the record before it.
[70] Thus, the administrative fine was imposed under s. 57(3) paragraph 3. of the RTA based on a finding of the existence of the precondition under s. 57(1)(b), which was made without error of law.
[71] Further, the quantum of the fine imposed was consistent with the findings of the Board as to the scope of profits by the landlord from the sanctioned conduct. The Board quite properly looked to the deterrent effect of the fine.
[72] Accordingly, under s. 210 (4)(a) of the RTA I affirm the terms of the fine ordered by the Board.
V. COSTS
[73] I shall receive written submissions as to costs of no more than 4 pages, excluding a bill of costs, from both the landlord and the Board. The landlord and Board are to serve and file their materials within 2 weeks of release of these reasons.
BLOOM J.
Released: July 24, 2025
CITATION: EQB v. JOUNG, 2025 ONSC 4343
DIVISIONAL COURT FILE NO.: DC-23-23
DATE: 2025 07 24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(JUSTICE IVAN S. BLOOM)
BETWEEN:
EQB LTD.
Landlord (Appellant)
- and -
MI JOUNG JOUNG and SUCKHO HAN
Tenants (Respondents)
REASONS FOR JUDGMENT
BLOOM J.
Released: July 24, 2025