Walsh v. Cardoso, 2026 ONSC 3193

Court File and Parties

Citation: Walsh v. Cardoso, 2026 ONSC 3193 Court File No.: DC-25-00000001-0000 Date: 2026-06-02 Superior Court of Justice – Ontario – Divisional Court

Re: Shannon Rose Walsh, Appellant And: Dani Cardoso, Respondent

Before: Justice I.F. Leach

Counsel: Alexandra Bonney, for the Appellant Marissa Hurst, for the Respondent

Heard: June 1, 2026

Endorsement

1Before me, in my capacity as a judge of the Divisional Court, hearing this matter as a single judge of that court pursuant to a designation made pursuant to s.21(2)(c) of the Courts of Justice Act, R.S.O. 1990, c.C.43, is an appeal from a review order made by the Landlord and Tenant Board (“LTB”) on January 7, 2025. On that date, the LTB found, inter alia:

a. that an earlier order made by the LTB on May 28, 2024, (terminating a tenancy between the Respondent and a named tenant, Sean Parnell, and requiring the relevant rental unit to be vacated by June 8, 2024, if Mr Parnell did not pay the amount required to void the LTB’s order), did not contain any serious error with respect to the naming of parties;

b. that the appellant, (the party requesting the review), was in fact not a party directly affected by that earlier LTB order; and

c. that the appellant therefore did not have any standing to a file a request for review of that earlier LTB order.

2Although the earlier LTB order had been temporarily stayed by an interim order made by the LTB on July 5, 2024, pending completion of the requested review hearing, the LTB’s order made on January 7, 2025, lifted that stay effective immediately.

3However, commencement of this appeal by the appellant resulted in a Certificate of Stay, issued by this court on January 15, 2025, confirming a stay of the LTB order made on May 28, 2024, as well as a stay of the LTB order made on January 7, 2025.

4This appeal has not proceeded expeditiously. In particular, as explained by Justice Tranquilli in her endorsements made herein on August 15 and October 15, 2025, although the appellant commenced her appeal in January of 2025, she thereafter was dilatory in perfecting it. The concerns in that regard were addressed by the appellant being granted two extensions of time in which to perfect her appeal, in turn delaying a hearing of the appeal until yesterday; i.e., almost 1 ½ years after the appeal was commenced.

5Consistent with his position that the appellant is neither a tenant, assignee of a tenant, or deemed assignee with the consent of the landlord pursuant to s.104(4) of the Residential Tenancies Act, S.O. 2006, c.17, or “RTA”, (as alleged by the appellant), but essentially nothing more than a trespasser or squatter, (i.e., “a squatter who has no lawful right to reside in or occupy the rental unit”, in the words used by the LTB to describe the appellant in its order made on January 7, 2025), the respondent landlord has not been accepting any rent payments from the appellant since at least March of 2024.

6In the result, the appellant and her family apparently now have been occupying the underlying rental unit since at least January of 2024, (in the finding of the LTB0, and doing so rent free since March of 2024.

7In the circumstances, a substantive decision from this court in relation to the appeal is now urgently required, at least from the respondent’s perspective.

Further background

8By way of further background, which I will not attempt to detail in its entirety:

a. The respondent landlord, (owner of the underlying rental unit identified by its municipal address as 4195 Bostwick Road, London, Ontario, N6P 1H2), entered into a residential tenancy agreement with one named tenant, Sean Parnell, on October 5, 2017. As documented in that agreement, Mr Parnell was not only the sole named tenant, but was also confirmed to be the only intended occupant of the rental unit. The monthly rent agreed upon by the respondent landlord and Mr Parnell was $600.00 per month. The respondent and Mr Parnell also expressly agreed that Mr Parnell was not to assign or sublet the premises without the prior written consent of the respondent.

b. On or about September 27, 2023, the named tenant Mr Parnell became incarcerated; a situation apparently resulting from an alleged physical altercation between Mr Parnell and the appellant; a person whom the LTB found to be a former girlfriend of Mr Parnell.

c. In the proceedings before the LTB, the appellant alleged that the named tenant Mr Parnell, on or about October 23, 2023, instructed the appellant to look after the rental unit and take care of any payments required in that regard while Mr Parnell was incarcerated. The appellant also alleged that she spoke with the respondent about that arrangement on or about October 28, 2023, at which time the respondent was said to have agreed to the arrangement; i.e., an arrangement whereby the appellant essentially would assume occupation of the rental unit, as well as responsibility for paying the associated rent corresponding to her substituted tenancy in relation to the premises. The appellant also alleged that both Mr Parnell and the respondent had instructed the appellant to break into the unit, (i.e., as opposed to Mr Parnell and/or the respondent landlord providing her with any keys to the unit), after which her occupancy of the unit supposedly would present no concern as long as the rent was paid.

d. The appellant’s factual assertions in that regard flew in the face of correspondence sent to the respondent by Mr Parnell and filed with the LTB, as well as the respondent’s oral testimony before the LTB, and the LTB’s indicated awareness of a separate proceeding before the Board involving the appellant. Without limiting the generality of the foregoing:

i. In his correspondence, Mr Parnell made it clear, in no uncertain terms, that he had never consented to any occupation of the rental unit, (i.e., his home), by the appellant. To the contrary, Mr Parnell indicated, in considerable detail:

1. that he had been the only tenant and occupant of the rental unit, and that the appellant had been neither;

2. that the appellant essentially orchestrated his arrest and incarceration on the basis of false accusations, with that incarceration being accompanied by terms prohibiting any communication and/or association between Mr Parnell and the appellant;

3. that the appellant thereafter broke into the rental unit and began occupying it with her family and a considerable number of pets, without Mr Parnell’s consent, while simultaneously appropriating or otherwise converting and/or disposing of Mr Parnell’s personal property;

4. that the appellant’s continued occupation of the rental unit, combined with the aforesaid prohibition on communication and/or association between Mr Parnell and the appellant, effectively was preventing Mr Parnell’s interim release from custody, as the rental unit which had been his home effectively was no longer available to him and he otherwise had no residence to which he could go;

5. that the appellant had an established history of occupying rental units without payment of rent and delaying/prolonging her eviction from such premises; and

6. that Mr Parnell was pleading with the respondent and others, (including the police), to remove the appellant, her family and her pets from his home as soon as possible, in order to facilitate his interim release from custody and return to that rental unit.

ii. In his testimony before the LTB, the respondent landlord indicated, inter alia:

1. that he was not immediately made aware of Mr Parnell’s incarceration;

2. that the supposed conversation between the appellant and the respondent, and the respondent’s supposed agreement to the appellant’s occupation of the rental unit, as alleged by the appellant, never occurred;

3. that, while the respondent admittedly accepted two payments from the appellant in January and February of 2024, as well as other payments made by Mr Parnell’s mother, the respondent did so on the mistaken understanding that such payments were being made on behalf of Mr Parnell, (i.e., by way of indirect satisfaction of Mr Parnell’s ongoing obligation to pay rent as the named tenant under the lease agreement), as opposed to any payment of rent by the appellant for her personal benefit as any kind of assignee of Mr Parnell’s rights under his lease agreement with the respondent, or as any kind of substituted tenant, who had taken up occupation of the rental unit with the consent of Mr Parnell and/or the respondent landlord;¹ and

4. that the respondent, after being made aware of the appellant entering and taking occupation of the rental unit without Mr Parnell’s consent or the consent of the landlord, has regarded the appellant as a trespasser and/or squatter as far as the rental unit is concerned, which is why the respondent, (consistent with his legal position that the appellant has no rights of tenancy in that regard requiring termination in accordance with the procedures otherwise mandated by the RTA), has not initiated any formal separate eviction proceedings vis-à-vis the appellant.

iii. In its reasons and order released on January 7, 2025, the LTB noted its awareness of a separate proceeding before the Board wherein the appellant, in November of 2023, (i.e., one month after her alleged commencement of occupation of the Bostick Road rental unit with the consent of Mr Parnell and the respondent, and her supposedly breaking into that rental unit pursuant to the instructions and consent of Mr Parnell and the respondent), was seeking relief from the Board in relation to her proposed eviction from a completely different rental unit in which she was still residing at the time.

e. The order made by the LTB order on May 28, 2024, (terminating the tenancy between the Respondent and Mr Parnell owing to the latter’s non-payment of rent, and requiring the relevant rental unit to be vacated by June 8, 2024, if Mr Parnell did not pay the amount required to void the LTB’s order), was made after a hearing in respect of which the respondent and Mr Parnell were the only named parties, and at which Mr Parnell was neither present nor represented, without the LTB having received any request by or on behalf of Mr Parnell to adjourn the proceedings. In the result, that proceeding went ahead based only on the respondent landlord’s evidence.

f. As noted above, the appellant then requested, (on July 5, 2024), a review of the LTB order made on May 28, 2024, and a stay of that order in the meantime; i.e., on the basis that she was an “Affected Party” who had not received notice of the earlier proceeding, such that she was not reasonably able to participate in that proceeding. The relevant LTB order was stayed accordingly; i.e., pending the LTB’s completion of the requested review.

g. In its reasons for decision released on January 7, 2025, (corresponding to the LTB order made that day, in relation to the appellant’s request for a review of the order made on May 28, 2024), the LTB made numerous findings and observations. They included the following:

i. Despite the appellant’s allegations to the contrary, the LTB was not satisfied that occupancy of the rental unit had been assigned and/or transferred to the appellant. Without limiting the generality of the foregoing, the LTB found that, although the appellant had been residing in the relevant unit since at least January of 2024, that had not been done, (i.e., had not occurred and was not occurring), with the consent of either the named tenant Mr Parnell or the respondent landlord. In the circumstances, the appellant was not a “permitted occupant” of the tenant or the rental unit.

ii. Although the appellant claimed that the occupancy had been assigned to her by Mr Parnell, there was no written correspondence entered in evidence to support such a contention. (As noted above, the correspondence filed in evidence by the respondent landlord indicated that Mr Parnell had a completely different position in that regard, indicating that the appellant was an unwanted trespasser who had “set him up”, (i.e., in terms of his arrest and resulting forced absence from his home at the rental unit), following which the appellant had broken into the property without authorization to occupy the rental unit instead.

iii. The LTB thought it unlikely that both the named tenant Mr Parnell and the respondent landlord would have consented to the appellant breaking into the rental unit or instructed her to do so; i.e., as opposed to Mr Parnell and/or the respondent landlord providing the appellant with keys to properly access and secure the unit.

iv. More generally, the LTB found that the appellant was not credible, based on the evidence presented at the hearing and the Board’s records. Amongst the specific considerations and concerns identified in that regard by the Board was the reality, noted above, that the appellant was claiming that she was in possession of and occupying the unit from October of 2023 onwards, (with the consent of the named tenant Mr Parnell and the respondent landlord), whereas the Board’s records confirmed that the appellant had been before the Board in November of 2023, in relation to another rental unit, asserting that she was living in that other rental unit and requesting relief from eviction in relation to that other rental unit. Having regard to such realities, the Board found that the appellant had only entered and moved into the rental unit leased by Mr Parnell from the respondent landlord after her prior tenancy had been terminated, (despite her resistance to that eviction), when the appellant was in need of alternative housing and moved into the respondent’s rental unit unilaterally without any assignment to of that rental unit, and more generally without any consent of the named tenant Mr Parnell or any consent of the respondent landlord. In the circumstances, the LTB expressly found that the appellant was “best described as a squatter who has no lawful right to reside in or occupy the rental unit”.

v. In the circumstances, the LTB found that the appellant was in fact not an “Affected Party” entitled to be named in the original underlying eviction proceeding commenced by the respondent landlord, or entitled to notice or participation in that proceeding. The LTB accordingly denied the appellant’s request for review of the LTB order made on May 28, 2024, cancelled its interim stay order made on July 5, 2024, and lifted that ordered stay immediately.

Party positions on appeal

9In the material filed by the appellant in relation to her appeal, and the oral submissions made by counsel for the appellant, the appellant continued to take issue with findings made by the LTB. For example:

a. The appellant continued to assert that the named tenant Mr Parnell had consented to her assuming occupation of the rental unit and responsibility for payment of rent for her own benefit; i.e., that Mr Parnell had assigned his rights under the lease agreement to appellant, and that the appellant “was indeed an assignee of the tenancy of 4195 Bostwick Road”.

b. The appellant also continued to assert that the appellant had paid rent for her own benefit as an assignee of the tenancy; i.e., rather than making any payments for the benefit of Mr Parnell.

c. The appellant also continued to claim that the respondent landlord had expressly consented to all those proposed arrangements in the course of oral discussion between the appellant and the respondent landlord.

10It was also argued, on behalf of the appellant, that the underlying circumstances fell within section 104 of the RTA, 2006, supra, which the LTB had not expressly considered in its reasons. In particular, the appellant argued that her alleged assignment of the tenancy and transfer of occupation of the rental unit by Mr Parnell, even if done without the consent of the landlord, had been transformed by law into an assignment of the tenancy with the consent of the landlord by virtue of the deeming provisions of s.104(4) of the RTA, insofar as:

a. a new tenancy agreement had not been entered into within 60 days of the respondent landlord’s discovery of the appellant’s “unauthorized occupancy” of the rental unit; and

b. neither the respondent landlord nor the named tenant Mr Parnell had applied to the LTB, within 60 days after the respondent landlord’s discovery of the appellant’s “unauthorized occupancy” of the rental unit, for an order evicting the appellant pursuant to section 100 of the Act.

11In the result, it was suggested that the LTB made a serious error with respect to:

a. the named parties;

b. its finding that the appellant lacked standing to request a review of the LTB order made on May 28, 2024; and/or

c. in failing to expressly consider or apply s.104(4) of the RTA in a manner that permitted the appellant and her family to remain in the rental unit.

12Relying on s.210(1) of the RTA, the respondent took fundamental issue with the appellant’s appeal to this court on jurisdictional grounds.

13In particular, it was the respondent’s contention that the appeal herein essentially was focused on disputed questions of fact and/or disputed questions of mixed fact and law; i.e., matters not falling within the confines of the Divisional Court’s limited jurisdiction to hear and determine appeals from LTB orders “only on a question of law”.

14In the alternative, the respondent argued that s.104(4) of the RTA clearly had no application in the circumstances, based on the LTB’s factual findings that occupancy of the rental unit actually had not been “assigned and/or transferred” to the appellant, (emphasis added), thereby effectively preventing any situation of “unauthorized occupancy” within the meaning of the RTA; i.e., thereby effectively removing the situation from one in which the appellant’s de facto occupation of the rental unit could possibly be transformed into a deemed assignment with the consent of the landlord pursuant to s.104(4) of the Act.

15Without limiting the generality of the foregoing, it was argued on behalf of the respondent that, while the Act admittedly had a “tenant protection focus” and was to be approached, interpreted and applied on that basis,² it was never intended to confer rights on trespassers and/or squatters; i.e., persons who were neither tenants nor persons asserting rights which tenants had attempted to assign, but who instead were simply persons who had broken into or otherwise managed to physically enter a rental unit to start living there, without the permission or consent of a tenant or landlord.

16Indeed, it was argued that the court’s allowance of any individual to spontaneously enter into a rental property, without permission from either the tenant or the landlord, and then claim protection pursuant to the RTA, would lead to inequitable and manifestly absurd results. Without counsel for the respondent saying at much, it was implied that adopting such an approach effectively would reward and thereby promote lawlessness and disorder, and effectively undermine the security of tenure of legitimate tenants, and those legitimately relying on rights such tenants had intended to transfer, which the legislation was intended to protect.

Assessment

17In my view, the threshold jurisdictional objection raised by the respondent has merit, and this appeal must be dismissed on that basis alone. Without limiting the generality of the foregoing:

a. Subsection 210(1) of the RTA provides that an appeal to the Divisional Court, from an order of the LTB, is available “only on a question of law”.

b. Where an appeal is taken in relation to an LTB order on a question of fact and/or a question of mixed law and fact, the Divisional Court accordingly does not have jurisdiction to hear the appeal.³

c. The distinction between questions of law, fact and mixed fact and law was articulated by Justice Iacobucci in Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 35, in the following manner:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

d. In my view, the issues the appellant seeks to raise on this appeal clearly involve questions of fact and/or questions of mixed law and fact. Without limiting the generality of the foregoing:

i. The LTB’s findings that the appellant lacked credibility, broke into the rental unit without the instructions or consent of the named tenant or landlord, and commenced occupation of the rental unit without any assignment or consent from the named tenant, or any consent from the respondent landlord, are clearly questions about what actually took place between the parties, and therefore obviously questions of fact. So too are the implicit if not explicit findings of the LTB:

1. that the conversation alleged by the appellant, which was said to have taken place between the appellant and the respondent landlord, in which the respondent was said to have agreed to the appellant’s substitution as a tenant of the rental property with direct responsibility for payment of the associated rent, never occurred; and

2. that the respondent landlord did not accept payments from the appellant understanding them to be rental payments made by the appellant for her own benefit as an agreed substituted tenant, as opposed to someone making payments on behalf of the named tenant Mr Parnell in relation to the obligations which Mr Parnell owed and continued to owe pursuant to his lease agreement with the respondent landlord.

ii. The LTB’s corresponding findings that the appellant accordingly was a trespasser or squatter with no lawful right to reside in or occupy the rental unit involved, at best, mixed questions of law and fact.

iii. To the extent the appellant relied on arguments that the underlying circumstances fell and/or fall within the ambit of s.104(4) of the RTA, (i.e., such that the LTB should have considered and applied that subsection to find that the appellant’s occupation of the rental unit should be deemed to be an assignment of the rental unit with the consent of the respondent landlord, thereby allowing her to remain in the rental unit), in my view such arguments also inevitably and unavoidably involve questions of mixed fact and law. By way of explanation for that view:

1. The opening words of s.104(4), indicating that “A person’s occupation of a rental unit shall be deemed to an assignment of the rental unit with the consent of the landlord as of the date the unauthorized occupancy began”, (emphasis added), make it clear that s.104(4) was intended to apply only to situations involving an “unauthorized occupancy”. In that regard:

a. Subsection 104(4) of the RTA clearly must not be read and interpreted in isolation. It must instead be read and interpreted in the context of the RTA as a whole. Doing that makes it abundantly clear that the Legislature did not employ the term “unauthorized occupancy”, found in the opening words of s.104(4), in a generic or undefined manner. The Legislature instead contemplated that such words, used in that particular context, would have a definite meaning; i.e., referring to situations falling with the concept of “Unauthorized Occupancy” specifically described and defined by section 100 of the RTA, and by s.100(1) of the Act in particular.

b. In particular, as s.100(1) of the RTA makes clear, the term “Unauthorized Occupancy”, in the context of the Act, refers to situations where “a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97”, (emphasis added); i.e., a situation involving a transfer of occupancy by a tenant, which in turn inherently connotes some form of involvement, participation and/or actions of and/or by a tenant to effect or bring about such a transfer of occupancy.

c. Such situations arguably are distinguishable from those in which a person assumes occupation of a rental unit in a manner divorced from any involvement, participation and/or actions of a tenant and expressly contrary to that tenant’s wishes. For example, as noted above, the LTB expressly indicated it was “not satisfied that occupancy of the rental unit had been assigned and/or transferred” to the appellant by the named tenant, Mr Parnell. (Emphasis added.) It instead found that the appellant had broken into and occupied the rental unit unilaterally during the forced absence of Mr Parnell, without any involvement or consent of Mr Parnell, and despite Mr Parnell’s express and forceful opposition to that entry and occupation once he learned of the appellant’s actions. Such circumstances, conclusively established by the LTB’s underlying findings of fact in this case, arguably are fundamentally inconsistent with any characterization of the situation as one in which the named tenant Mr Parnell had transferred occupancy of the unit to the appellant within the meaning of s.100(1) of the RTA, to bring the situation within the Act’s defined concept of “unauthorized occupancy”, and thereby trigger the possibility of s.104(4) applying in the circumstances.

d. For present purposes, however, the fundamental point is that determination of whether the situation in this case involves an “unauthorized tenancy” to which s.104(4) was intended to apply, having regard to its opening words, (and implicit cross-referencing of section 100 of the RTA), inevitably and unavoidably involves, once again, questions focused on what actually took place between the parties; i.e., questions of fact, which in this case already have been determined by the LTB in a manner adverse to the appellant and in favour of the respondent landlord. Insofar as those questions of fact also would determine whether and how s.104(4) of the RTA should apply in the circumstances, the appeal also involves questions of mixed law and fact in that regard.

2. Moreover, s.104(4) cross-references section 100 of the RTA not just implicitly, in the opening words of the subsection, but expressly; i.e., insofar as the deeming provisions of the subsection expressly apply if and only if the preconditions specified in the subsection’s sub-paragraphs have been satisfied, and s.104(4)(b) expressly refers to the landlord’s failure to “apply to the Board under section 100 for an order evicting the person within 60 days of the landlord discovering the unauthorized occupancy”. In that regard:

a. The wording of s.100(1) of the RTA makes it clear that the subsection, permitting applications by a landlord to obtain an order “terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred”, [emphasis added], applies only to situations where “a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97”. [Emphasis added.]

b. Whether or not the respondent landlord had any legal ability to commence an application pursuant to section 100 of the RTA and/or should be faulted for failing to do so, with resulting consequences to the respondent landlord pursuant to s.104(4), therefore once again turns, at least in part, on questions about what happened between the parties; i.e., on whether the named tenant Mr Parnell in fact transferred occupancy of the rental unit to the appellant. Those are questions of fact. To the extent those questions of fact in turn affect the possible and/or proper application of s.104(4) in the circumstances, the situation once again involves questions of mixed fact and law.

c. For present purposes, the fundamental point is that the appellant’s arguments regarding s.104(4), as to whether and how it should apply in the circumstances, having regard to the provisions of s.104(4)(b), also inevitably and unavoidably involves questions of fact and/or mixed questions of law and fact.

iv. Having regard to the above, in my view the issues raised by or on behalf of the appellant in this appeal therefore do not involve issues turning “only on a question of law”; i.e., so as to bring the matter within the limited appellate jurisdiction conferred upon the Divisional Court pursuant to s.210(1) of the RTA. The Divisional Court accordingly has no jurisdiction to hear this appeal.

18That is a sufficient basis on which to dismiss the appeal, with consequential relief affirming the relevant orders made by the LTB, and lifting the stay of those orders that was issued in this court pending determination of the appeal.

19As that obviously was one possible outcome of the proceeding, I received submissions from counsel, during the course of yesterday’s hearing, as to whether and to what extent the appellant and her family should be granted further time to vacate the rental unit in such circumstances. In that regard:

a. Counsel for the appellant acknowledged that the appellant has known for some time that dismissal of her appeal, lifting of the current stay on the underlying LTB orders and having to vacate the rental unit, was a possible outcome. However, the appellant and her family have been hoping for a different result, and accordingly have not taken any active measures to obtain alternative accommodation or prepare for any relocation of their residence. In the circumstances, it was suggested by counsel for the appellant that, if the appeal was dismissed with a resulting lifting of the stay on the LTB’s underlying orders, the appellant and her family should be given a further three months in which to find alternative accommodation; i.e., that the current stay, effectively permitting the appellant and her family to remain in the rental unit despite their non-payment of rent, effectively should be extended until September 1, 2026.

b. Counsel for the respondent landlord, upon receipt of requested and supplied confirmation that the appellant had children under the age of eighteen who were living with her in the rental unit, indicated that the respondent landlord commendably would be content with such a further extension of the existing stay; i.e., until September 1, 2026.

20In the circumstances, operation of my intended order lifting the current stay on the underlying LTB orders shall be delayed until September 1, 2026.

Conclusion

21For the reasons outlined above:

a. the appellant’s appeal is dismissed;

b. the orders made by the LTB on May 28, 2024, and January 25, 2025, are affirmed;

c. the existing stay of the aforesaid LTB orders, reflected in the Certificate of Stay issued by the registrar of this court on January 17, 2025, shall be lifted effective September 1, 2026; and

d. enforcement of the aforesaid LTB orders correspondingly shall be delayed until September 1, 2026, by which time the appellant and her family are to have vacated the relevant underlying rental unit identified by its municipal address as 4195 Bostwick Road, London, Ontario, N6P 1H2.

Costs

22At the conclusion of yesterday’s hearing, I indicated that I would be reserving my decision so that I could reflect further on the matter and provide more detailed written reasons via a decision released later in the day, or as soon as the completed decision could be released to the parties. I therefore asked counsel to make cost submissions arguing in the alternative; i.e., indicating their alternative positions depending on whether the appellant or the respondent was successful in relation to the appeal.

23As the respondent was entirely successful, I will focus primarily on the submissions from counsel as to the parties’ respective positions regarding costs in that event.

24In that regard, the successful respondent sought its costs of the appeal, fixed in the all-inclusive amount of $3,000.00, while the unsuccessful appellant took the position that an order awarding no costs of the appeal would be appropriate in the circumstances.

25In arriving at an appropriate cost determination, I have regard to all of the factors, outlined in Rule 57.01 of the Rules of Civil Procedure, relating to exercise of my discretion in relation to costs confirmed by section 131 of the Courts of Justice Act, supra. Having regard to the urgency and corresponding time constraints noted earlier, I nevertheless will not address all of those factors expressly here. For present purposes, I think it sufficient to emphasize the following:

a. While the respondent had not tendered a cost outline in support of its request, in my view the suggested $3,000.00 quantification of the respondent’s costs seemed inherently reasonable; e.g., having regard to the nature of the appeal, and the work that obviously had gone into preparation of the respondent addressing the substantive issues raised by the appeal, as well as the motion and repeated case conferences that were required to address the appellant’s repeated delays in perfecting the appeal.

b. All of those delays by the appellant effectively enured to the appellant’s benefit at the respondent’s expense; i.e., by prolonging the process, delaying the ability of this court to make a substantive decision in relation to the appeal, and extending the extraordinary amount of time in which the appellant and her family continued to live rent-free in the respondent’s rental unit. In my view, those realities, in addition to the appellant pursing an appeal to this court from an LTB order clearly focused on issues involving questions of fact and questions of mixed law and fact, (in respect of which this court has no appellate jurisdiction), warrant an award of costs on an elevated scale; i.e., to express the court’s disapproval of such behaviour, and to deter others from engaging in such conduct.

c. Although counsel for the appellant suggested that the respondent had never signalled any intention to seek costs from the appellant prior to yesterday’s hearing, that is simply not so. At the very least, the respondent clearly indicated, in the Factum of the Respondent filed on December 19, 2025, that the respondent was seeking costs of the appeal on a substantial indemnity basis. More generally, the respondent inherently had an entitlement to seek costs of this appeal proceeding, and there was absolutely nothing before me to indicate that the respondent had ever done anything to suggest that he was waiving his rights in that regard.

d. In the course of advancing alternative cost submissions on behalf of the appellant, counsel for the appellant also had indicated that, in the event of her success on the appeal, the appellant would have been seeking an award of costs in her favour fixed at $1,500.00 all inclusive, apparently on a partial indemnity basis; an amount that was expressly acknowledged to be more modest than one might normally expect having regard to the circumstances and conduct of the appeal, insofar as the appellant had pursued her appeal with the benefit of legal aid. In my view, that alternative submission effectively underscores, (having regard to the appellant’s own cost expectations), the reasonableness of the substantial indemnity costs now sought by the respondent, who in my view has been entirely without fault in the circumstances leading to this appeal and his conduct demonstrated in responding to the appeal.

e. While counsel for the appellant suggested that leniency in quantification of any cost award made vis-à-vis the appellant was appropriate, having regard to her professed impecuniosity, I note again that the appellant and her family apparently have enjoyed the financial benefits of occupying the respondent’s rental unit rent since at least January of 2024, (i.e., approximately 2½ years), while paying no rent other than two payments of the $600 monthly rent contemplated by the original lease agreement made between the respondent and his named tenant Mr Parnell; payments which, (the LTB found), the respondent had accepted only because he thought they were being made on behalf of Mr Parnell. In other words, the appellant and her family have been living in the respondent’s rental unit, for 27 of the last 29 months without paying anything whatsoever in relation to the rent that otherwise would have been required in that regard; i.e., a minimum monthly rent of at least $600.00, (as agreed between the respondent landlord and Mr Parnell), leaving aside the annual increases in rent above $600 the respondent would have been permitted to require since January of 2024. Moreover, as noted above, the appellant and her family effectively will be permitted to enjoy a further three months of rent-free occupation of the respondent’s rental unit after yesterday’s hearing; i.e., insofar as she and her family will not be required to vacate the unit until September 1, 2026, for the reasons outlined above. If I have done the math correctly, (using a fixed monthly rent of $600.00, despite the passage of time), the final outcome of in this situation will result in the appellant and her family having enjoyed rent-free accommodation, at the respondent’s expense, worth $18,000.00; i.e., 30 months of rent-free occupation, (27 months prior to yesterday and three additional months thereafter), in respect of which the respondent otherwise could and likely would have been paid at least $600.00 per month. The requested $3,000 cost award is tantamount to the appellant having to pay a paltry monthly rent of $100.00 per month for that extended accommodation, (apparently a fully detached house), without paying any costs of this extended appeal proceeding, which has compounded the respondent’s financial loss.

f. In my view, the underlying equities, as well as the nature and history of this appeal, should not entitle the appellant to any further indulgences, based on her professed impecuniosity or otherwise. Moreover, for the reasons already noted, any such further indulgence, in relation to costs, would not reflect the court’s disapproval of the appellant’s conduct or deter others from engaging in such conduct.

g. As requested by the respondent, costs of the appeal therefore are fixed at $3,000 inclusive, payable forthwith by the appellant to the respondent.

Ian F. Leach

Footnotes

1. 1Correspondence sent by the appellant to the landlord, tendered in evidence before the LTB by the respondent, included indications by the appellant herself that the appellant was communicating with the respondent in relation to the rent owed by Mr Parnell in relation to the rental unit; i.e., as opposed to rent owed by the appellant in relation to the rental unit.
2. 2See Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, at paragraph 19.
3. 3See, for example: Zouhar v. Salford Investments Ltd. (2008), 168 A.C.W.S. (3d) 182 (Ont.Div.Ct.), at paragraphs 8-9; Solomon v. Levy, 2015 ONSC 2556 (Div.Ct.), at paragraph 33; and Toronto Community Housing Corporation v. Moallim, 2018 ONSC 1900 (Div.Ct.), at paragraph 26.