CITATION: Shearer v. Oz, 2026 ONSC 3753

DIVISIONAL COURT FILE NO.: DC-23-1419, DC-23-1420, DC-25-1609, DC-25-1610

DATE: 20260717

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Fitzpatrick, O’Brien, and Tranquilli JJ

BETWEEN:

CHARLES SHEARER and JENNA SHEARER Appellants/Applicants

– and –

ERAN OZ AND JENNIFER OZ Respondents

Mr. Shearer self-representing the Appellants/Applicants Howard Stern for the Respondents Anna Solomon, for the Landlord and Tenant Board

HEARD at Oshawa on January 22, 2026:

TRANQUILLI J.

REASONS FOR DECISION

Overview

1The tenants challenge two decisions of the Landlord and Tenant Board; each by way of appeal and application for judicial review. These proceedings are the latest round of what threatens to be an unending contest by the tenants with the landlord and the Board. The dispute has its origins in a 2019 “rent strike” declared by the tenants because of property conditions. This court and the Board told the tenants in the clearest of terms that they may not grant themselves a rent abatement. Yet, the tenants continue to assert positions that rely upon abatement and other self-help in open “defiance” or “protest” of the landlord, the Board and the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

2The tenants contend the rental unit conditions forced them to leave the rental unit in June 2019, although they invited others to live there as “paying guests”. They live in their own home but will not surrender occupancy of the rental unit. They claim they plan to resume the tenancy once their abatement applications bring the property to what they consider to be minimum standards.

3The Board twice terminated this tenancy and issued eviction orders for non-payment of rent under the Act. This court upheld both orders, but because the tenants paid the rent owing, the Board voided the first eviction order and allowed the application at issue in this application/appeal to proceed. The tenants now challenge the Board’s termination of the tenancy for persistent late payment of rent and subletting the unit without the landlord’s consent. The tenants seek orders quashing the Board’s eviction orders and dismissing the landlord’s applications seeking their eviction or alternatively remitting the matter to the Board.

4The tenants unsuccessfully challenged the first eviction order for non-payment of rent to this court in 2020. The tenants then paid the rent strike arrears to void the eviction order and restore the tenancy. They resumed the “rent strike” the month following, setting the stage for another contest between the landlord’s second application for termination for non-payment and the tenants’ abatement applications for maintenance and harassment. In January 2023, the Board granted a second eviction order for nonpayment of rent between December 1, 2020, and June 30, 2021. The Board fixed the arrears owing and awarded an abatement for some, but not all, of the tenant’s claims. This court upheld the tenants’ challenge of those orders by appeal and judicial review application: Oz v. Shearer, 2024 ONSC 1723.

5As before, the tenants had filed a motion with the Board to void the second eviction order and restore the tenancy. However, the landlord applied to the Board to terminate the tenancy for: 1. persistent “late payment” of rent; 2. unauthorized subletting of the rental unit; and 3. substantial interference with the landlord’s right or interest. The Board heard these applications in September 2024.

6By decision dated December 20, 2024 (amended January 17, 2025), the Board terminated the tenancy for persistent “late payment” and transferring occupancy without the landlord’s consent: Oz v. Shearer, 2024 ONLTB 89030. The Board found there were no grounds to preserve the tenancy. The Board however dismissed the application to terminate the tenancy for substantial interference with the landlord’s right or interest. The Board agreed the tenants failed to pay for water utilities but held the evidence failed to establish grounds to terminate the tenancy for substantial interference.

7The tenants submit the Board could not terminate the tenancy because the grounds for persistent late payment under the Act do not apply where there is no payment of rent at all. The tenants claim they did not transfer occupancy of the rental unit because they maintained an office in the property. In any event, the tenants submit the Board ought to have preserved the tenancy and made a “prompt payment” order. The tenants also challenge the Board’s findings that the tenants had not paid the water utilities as required

8This panel also heard the tenants’ appeal and application for judicial review of the Board’s review order dated August 24, 2023: LTB-T-037317-23-RV. The tenants challenge the Board’s dismissal of the tenants’ rent abatement application because of an unsafe backyard slope. This appeal and application were initially lost in the tangle of other appeals and judicial review applications brought by the tenants regarding other Board orders. The oversight came to light in January 2025 when the registrar dismissed the tenant’s appeal for delay. On motion, the court restored the appeal to the hearing list to be heard with the judicial review application.

9These appeals and applications for judicial review raise the following questions for the court’s determination:

a. Did the Board err in terminating the tenancy under s. 58(1)1 of the Act for persistent non-payment of rent?

b. Did the Board err in finding the tenants transferred “occupancy” of the rental unit to unauthorized occupants?

c. Did the Board err in refusing to preserve the tenancy under s. 83 of the Act?

d. Did the Board err in finding the lease obligated the tenants to pay for water utilities?

e. Was the decision to dismiss the rent abatement application unreasonable or the result of a procedurally unfair process?

10These reasons will explain why the appeals and applications for judicial review are dismissed. In summary, the Board was correct in finding that persistent non-payment of rent are grounds for termination under s. 58(1)1 of the Act. There is no basis to intervene in any of the Board’s findings and conclusions.

Analysis

Standard of Review

11This court has jurisdiction over an appeal of an order by the Board only on a question of law: Act, s. 210. The standard of review for questions of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. This court does not have jurisdiction to hear an appeal from a Board order on a question of fact or a question of mixed fact and law: Smith v. Youthlink Youth Services, 2022 ONCA 313 at paras. 16, 31.

12However, judicial review is available for questions of fact or mixed fact and law where the statutory right of appeal is limited to questions of law. The court has discretion whether to consider the merits of the application or to grant a remedy. The reviewing court must first determine whether considering the merits of the application is suitable and appropriate in all the circumstances: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 at paras. 3, 47, 49, 54, 56, 64. Judicial review requires the court to determine whether the board’s decision was reasonable. The court considers the outcome of the decision taking into account its underlying rationale in order to ensure the decision as a whole is transparent, intelligible and justified in relation to the facts and law that constrain the decision maker: Vavilov, at paras. 15, 85, 99. The court will generally not review findings of fact or reweigh or reassess evidence that was before the initial decision maker: Red N’ Black Drywall Inc. v. Carpenters’ District Council of Ontario, 2024 ONSC 1400 at para. 23

1. Did the Board err in terminating the tenancy under s. 58(1)1 of the Act for persistent “late payment” of rent?

13Under s. 58(1)1, a landlord may give notice of termination at the end of the tenancy where the tenant “has persistently failed to pay rent on the date it becomes due and payable.”

14The appellants’ rent payment history as of the date of application was not in dispute. The tenants did not pay rent for 16-months between August 2019 and November 2020. They paid those arrears in one lump sum in November 2020. They resumed the rent strike in December 2020 and were in arrears for seven continuous months as of when the landlord delivered the N8 in June 2021. The Board held the non-payment was persistent within the meaning of s. 58(1)1 because it involved the tenants continuing firmly or obstinately in this course of action despite the landlord’s opposition. The tenants do not challenge this conclusion, and I see no error of law in the Board’s finding.

15The appellants nevertheless argued that termination under s. 58(1)1 can only apply where a tenant pays the rent late—not where the tenant does not pay rent at all. This is a critical distinction to the tenants, because unlike a termination for non-payment of rent under s. 59 of the Act, for persistently late rental payments, the tenants do not have a statutory option to void an eviction order under s. 58(1)1 by payment of arrears. The Member acknowledged there was uncertainty within the Board on this issue, notwithstanding recent appellate guidance from the Divisional Court in Tataw v. Minto Apartment L.P., 2023 ONSC 4238.

16In Tataw, the Divisional Court settled that under the Act, non-payment of rent can be both a failure to pay rent lawfully owing under the tenancy agreement under s. 59 and a failure to pay rent on the date it became due and payable under s. 58(1)1. The court explained that a factual overlap can arise from issues of “late payment” and “non-payment” of rent that leads to related but distinct bases for application to the Board. It was therefore not procedurally unfair for the landlord to start a termination application for persistent late payment under s. 58(1)1 and then a termination application for arrears under s. 59 while awaiting the tenant’s review request of the first decision: Tataw at paras. 14, 20, 21.

17However, notwithstanding Tataw, a line of Board decisions relies on the tenant protection focus of the Act to interpret or read down s. 58(1) to apply only to situations where rent is actually paid late, and not where rent has not been paid at all. These decisions distinguish Tataw on the basis that the arrears arose after the Board ordered termination for persistent late payment and suggest there is still a question about whether a landlord can pursue termination for persistent late payment and for non-payment of rent for the same rental period. These decisions reason that treating non-payment as “late payment” deprives the tenant of the chance to bring rent into good standing and is therefore inconsistent with the Act. In contrast, where the landlord successfully applies to terminate the tenancy under s. 59 for non-payment of rent, the tenant may void the order under s. 74 by paying the arrears. These decisions also reason that although a landlord can pursue termination applications for both arrears and persistent late payment, the analysis at the s. 58(1)1 hearing can only rely on the months of the late payments and cannot consider months in which no payments were made. See e.g., Hazelview Property Services Inc. v. Doucette, ; High Park Bayview Inc. v. Jordan, 2023 ONLTB 41530, aff’d on review 2023 ONLTB 57192; Morguard NAR Canada Limited Partnership v. Qasim, 2023 ONLTB 55478; Liao v. Mao, 2023 ONLTB 65465, LPM Management v. Tsaousev, 2025 ONLTB 22273.

18However, on this decision under appeal, the Member concluded it was not possible to restrict a plain and unambiguous reading of s. 58(1)1 to situations where the tenant ultimately paid the rent, albeit late. The Member reasoned that both a tenant who persistently pays the rent days late and a tenant who never pays their rent have each “persistently failed to pay rent on the date it becomes due and payable”. The Member therefore granted the application but requested guidance from the Divisional Court because of the uncertainty within the Board. The tenants join in that request for appellate guidance and repeat their arguments before the Board on this appeal.

19The court may consider this appeal on a question of law. The Board’s interpretation was correct.

20This ground for termination under s.58(1)1 of the Act is commonly referred to as “late payment”. However, “late payment” is a useful shorthand that does not precisely represent the scope of the provision itself. Application of s. 58(1)1 neither depends upon “payment” nor that payment is “late”. Rather, “late payment” is but one example of a circumstance where a landlord may serve notice of termination at the end of a tenancy where the tenant persistently failed to pay rent “on the date it becomes due and payable” under s. 58(1)1.

21On this appeal, counsel for the Board advised this panel that the “late payment” terminology originated from predecessor legislation that provided a ground of termination for non-payment of rent, with prescribed forms that permitted a landlord to terminate a tenancy at the end of the term of tenancy for being persistently late in paying rent: Landlord and Tenant Act, R.S.O. 1980, c. 232; Forms, R.R.O. 1980, Reg. 548, s. 6. Board counsel notes this terminology has carried forward to the Board notices and information bulletins under the current Act.

22This court’s recent decision in Parousis v. Centurion Property Associates Inc., 2025 ONSC 6864 confirms the correctness of the Member’s interpretation of s. 58(1)1. In Parousis, the tenant only continued to pay her original rent in protest of an increase. The Board found the tenant was persistently late in paying her rent under s. 58(1)1 and ordered her to pay her full rent on time for one year or face an eviction order. The tenant argued her rent was not “late” because she made a substantial partial payment by way of her original rent each month. The court found the statutory scheme is clear and unambiguous. “Rent” under the Act means the entire amount of rent that is due each month, consistent with the tenant’s obligation to pay rent in full when it is due. “Any non-payment of rent is rent that is both (i) late and (ii) in arrears, until that rent is paid”: Parousis, at paras. 3, 8.

23Parousis neither concerned a situation of non-payment nor considered what significance, if any, arises from a payment being “late” within s. 58(1)1. However, the rationale for the same clear and unambiguous statutory provision must apply to this situation of persistent non-payment as a matter of logic—any non-payment of rent is rent that is late: Parousis, at para. 3. It matters not whether the rent deficiency is about repeated timeliness, partial payments, batch payments or complete non-payment. Each circumstance is an example of a persistent failure of the tenant’s fundamental obligation to pay rent “on the date it becomes due and payable” within the meaning of s. 58(1)1.

24An ordinary and grammatical reading of s.58(1)1 produces harmony within the Act concerning termination for non-payment. The overlap that can arise between ss. 58(1)1 and 59 is not unusual. When this happens, each provision is meant to apply and is not a basis for narrowing their scope: Onyskiw et al v. CJM Property Management Ltd., 2016 ONCA 477, at para. 42. Tataw and Parousis explain that “late payment” and non-payment of rent are related but distinct concepts under the Act that usually lead to different remedies. Both may arise from the same fact situation. Both may be pursued by a landlord: Tataw, at paras. 19-21; Parousis, at paras. 3, 4.

25As the Board correctly recognized in this case, although ss. 58(1)1 and 59 can arise from the same set of facts, the provisions apply at different stages of the tenancy. Section 59 permits a landlord to serve notice of termination for failure to pay rent owing under the agreement at any time during the tenancy. However, s. 58(1)1 only permits the landlord to serve notice for persistent late payment once the tenancy is at an end. The Act otherwise provides tenants with security of tenure by deeming a tenancy to continue after the term or period the tenancy expires: s. 38. The landlord cannot recover possession of the unit except where the tenant has voluntarily vacated or abandoned the unit or where the Board orders the landlord may recover possession of the unit: s. 39. Section 58(1)1 permits the landlord to interrupt the security of tenure and to recover possession of the unit at the end of a tenancy where there was a history of persistent “late payment”.

26An interpretative approach that reads down s. 58(1)1 to exclude circumstances of persistent “non-payment” at the end of a tenancy is at odds with this court’s holdings in Tataw and now, Parousis. It is also contrary to the modern principle of statutory interpretation. The words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Vavilov, at paras. 117-118. No uncertainty arises from an ordinary reading of s. 58(1)1 that requires resolution of an ambiguity in favour of tenant protection, which is also not the only purpose of the Act. The Act’s other purposes include to balance the rights and responsibilities of residential landlords and tenants: s. 1.

27It is an error to restrict application of s. 58(1)1 to only circumstances or periods of “true” non-payment of rent. Tataw was clear in explaining that it was not procedurally unfair for the landlord to have the option of two distinct proceedings before the Board for persistent non-payment of rent: Tataw, at paras. 13, 14, 21. Parousis confirms that both rent arrears and “late payment” applications can indeed arise from the same fact situation. It is for the Board to decide whether it deals with arrears and “late payment” in separate proceedings with two sets of potential remedies or in one proceeding with remedies encompassing the entire course of conduct: Parousis, at para. 4.

28As the Board recognized in this case, while a tenant cannot void a late payment eviction order by payment of arrears, the Act still requires the Board to consider whether fairness dictates that the tenancy be preserved: s. 83. The Board also has jurisdiction to make a conditional order that gives the tenant a chance to preserve the tenancy: s. 204. Where the Board finds persistent “late payment” of rent, the Board may terminate the tenancy or preserve the tenancy on condition of the timely future payment of rent, failing which the landlord may seek an eviction order: Tataw, at para. 14. The Board regularly makes such conditional orders on a finding of persistent “late payment”: Parousis, at para. 5.

29It follows in this appeal that a “rent strike” of 16 months, followed by a lump sum payment of arrears, then a resumed rent strike of seven months is persistent “late payment” within the meaning of the Act. The Board made no error of law in finding that non-payment of rent over multiple months is persistent “late payment”, or is more properly, a persistent failure “to pay rent on the date it becomes due and payable” under s. 58(1)1 of the Act. There is no basis on which this court should intervene. This ground of appeal fails.

2. Did the Board err in finding the tenants transferred “occupancy” of the rental unit to unauthorized occupants?

30The landlord filed an A2 application in September 2023 for an eviction order because the tenants sublet the rental property to third parties without the landlord’s consent. Under s. 100 of the Act, if a tenant “transfers the occupancy” of a rental unit to a person without the landlord’s consent, the landlord may apply for termination of the tenancy.

31There was no dispute that unauthorized occupants were in the rental property without the landlord’s consent. A preliminary issue involved when the landlord first learned of this unauthorized occupancy. The Board found the landlord learned in June 2023 such that the A2 application was brought in time. The central question was whether the tenants “transferred the occupancy” of the rental property to these third parties.

32The tenants submitted that the Board’s abandonment of its function as a rapid adjudicator of disputes caused the tenants to have paying guests or roommates at the unit at below market rent. The tenants claimed they needed to mitigate their expenses in the face of ongoing Board delays in addressing abatement applications. The tenants similarly argued they knew the landlords would not consent to a sublet and that a proactive Board application for pre-authorization was impractical because of “tribunal inaccessibility”. The tenants claimed their arrangement also gave affordable accommodations to people otherwise experiencing housing instability. The tenants acknowledged they lived in Port Perry as homeowners since 2021 but claimed they intended to resume the tenancy after they succeeded through various Board applications in having the property brought to minimum standards. The tenants argued they did not transfer occupancy because one of the tenants regularly worked from an office he maintained at the rental property. He did not stay overnight at the property, eat meals with the other occupants or use the kitchen. The unauthorized occupants carried on all usual living activities in the unit.

33The Board found the unauthorized occupants lived in the unit whereas the tenants had “no residential connection at all” to the unit. The Board applied the “transfer of occupancy” test recognized by the Court of Appeal in Samuel Property Management Ltd. v. Nicholson, . The Board noted the purpose of s. 100 is to protect a landlord’s expectation the tenant will retain a sufficient level of interest in the unit and the landlord’s right to approve of anyone who wishes to take over the tenancy. The Board concluded the tenants’ connection to the rental unit was no longer residential in nature; the unauthorized occupants now had residential use of the rental property. The tenants had “transferred the occupancy”, entitling the landlord to an eviction order.

34The tenants submit the Board erred in the determination of occupancy under s. 100 of the Act and the application of the test in Samuel Property. The tenants argue they were aware of Samuel Property at the time they made the plan to have paying guests. They intentionally maintained and regularly attended an office in the rental unit to distinguish these circumstances from Samuel Property, where the tenant was found to have transferred occupancy. The tenants also submit the Board failed to appreciate the significance of their ongoing “possession” of the unit notwithstanding that they had another residence, as was considered in 1162994 Ontario Inc. v. Bakker, .

35This issue does not raise a question of law this court can review on appeal. The tenants either misunderstand Samuel Property or are trying to relitigate their substantive arguments recast as statutory interpretation. Where a tenant and others occupy a unit, the Board must focus on whether a transfer of the occupancy occurred. It is a question of fact and degree. The tenant’s use of the unit may be relevant, but is not decisive: Samuel Property, at paras. 19-25. Samuel Property remains the appellate authority for matters under s. 100 of the Act. Bakker is not relevant to these circumstances or s. 100 of the Act. That appeal considered whether the appellants were tenants in “possession” of the rental unit at the time of a rent arrears application under predecessor legislation.

36The Board’s conclusion that the tenants transferred occupancy to the unauthorized occupants within the meaning of s. 100 of the Act is a finding of mixed fact and law with no extricable question of law which this court may review on appeal.

37With respect to the tenants’ application for judicial review, the decision is reasonable. The decision is the result of an internally consistent and rational chain of analysis that is justified in relation to the facts and the law that constrain the Board. It is therefore also not appropriate for this court to intervene by judicial review. This ground of appeal and/or review fails.

3. Did the Board err in refusing to preserve the tenancy under s. 83?

38Section 83 of the Act required the Board to consider whether to provide relief from the eviction orders for persistent “late payment” and unauthorized subletting.

39The tenants claimed the landlord’s “serious breaches” of their maintenance obligations required the Board to refuse the applications under s. 83(3). The tenants alleged the landlord failed to address maintenance issues that were the subject of a January 2023 rent abatement order. The Board found it was not required to dismiss the applications because a January 2023 Board order previously determined these concerns were not “serious breaches” under s. 83(3) and the Divisional Court also declined to intervene in the decision. The Board also observed the tenants’ claims that property conditions forced them to “retreat” and “evacuate” the rental unit did not square with their decision to sublet the property.

40The tenants also submitted the Board should exercise its discretion concerning an eviction for “late payment” in the “usual” manner and preserve the tenancy with a conditional order for prompt payment. The Board determined it was a not unfair to grant either eviction order in the circumstances.

41The Board agreed the tenants were correct that late payment applications often resulted in a “prompt payment” order. But the Board also explained that a prompt payment order was “not always” the result. The underlying reason for persistent non-payment—an unlawful rent strike—did not mitigate in the tenants’ favour. It was not unfair to grant the application where the tenants had not lived there in years. The Board found the unauthorized occupants were not entitled to the benefit of s. 83 because they were not tenants with security of tenure under the Act but used its discretion to give the occupants time to find other accommodation.

42The tenants argue the Board was required to conduct a fresh assessment of the maintenance issues to update the status of conditions since the January 2023 abatement order. They complain the Board was procedurally unfair and demonstrated a reasonable apprehension of bias because it adjourned the tenant’s fresh abatement applications to be heard after disposition of these eviction applications. This deprived the proceeding of relevant evidence. They allege the Board fettered its discretion by relying on the earlier abatement order, demonstrated uneven scrutiny of the evidence and predetermined the outcome of the applications.

43I find no basis for intervention with the Board’s decision not to preserve the tenancy.

44The Board’s conclusion that there was no evidence of a “serious breach” that required refusal of the application is a finding of mixed fact and law with no extricable question of law this court may review on appeal. The conclusion was reasonable on the evidence. The Board was entitled to rely upon the previous Board order. In fact, the Divisional Court observed the Board’s conclusions followed the parties’ vigorous contest of the maintenance issues. Except for a heating issue, the Board found the maintenance issues were “minor” and the premises were not uninhabitable: Oz, at paras. 35-38.

45There is a strong presumption of impartiality and the tenants proffer nothing beyond the accusation of bias. Such serious allegations require substantial and cogent evidence: Wewaykum Indian Band v. Canada, 2003 SCC 45. The process was fair having regard to all the circumstances. I see no unfairness in the Board’s decision to adjourn the abatement applications to be heard after disposition of the eviction applications. These arguments appear to be no more than a recycling of the tenants’ submissions on their last unsuccessful challenge of the Board’s refusal to exercise its discretion under s. 83: Oz, at paras. 33-50.

46Six applications came forward in this hearing that led to these eviction orders. The Board identified that two of the applications concerned water utility and maintenance issues that were addressed in previous orders. The Board adjourned those matters to be heard later in the year. The tenants make no secret in their written submissions that their new applications date these new breaches “back to the day after the previous order was issued.” The tenants’ submission and entire stance suggest this was yet a further effort to delay and weaponize what should have been a summary process. The Act requires the Board to adopt the most expeditious method of determining the questions that arise in a proceeding, also giving all persons an adequate opportunity to know the issues and be heard on the matter: s. 183. The Board explained that the coordination and hearing of applications concerning this single tenancy consumed “a rather large amount of time”. As this court noted on the last challenge, the process would “grind to a standstill” if every Board dispute consumed the resources that had been dedicated to these parties: Oz, at para. 56.

47There is also no basis to require persistent late payment applications to be heard with arrears or abatement issues. It is consistent with the Act for the Board to deal promptly with persistent “late payment” allegations and tenants who purport to self-abate their rent: Parousis, at paras. 22-26.

48The Board’s decision that it was not unfair to terminate the tenancy is also an issue of mixed fact and law from which there is no extricable issue of law. The Board’s decision involved the exercise of discretion, which is entitled to deference. I find no error in principle or that the Board gave excessive, insufficient or no weight to relevant considerations in that exercise. The Board was entirely correct that “prompt payment” orders may be a common remedy in “late payment” applications, but they are not the default. The Board is to consider “all the circumstances.” The Board did not “cherry pick” the dates of the rent strike to determine termination for “late payment” and ignore evidence of the years of timely payments since then. I find it absurd for the tenants to rely on these payments as a reason to preserve the tenancy. The court ordered payment of arrears and ongoing rent as a condition of maintaining a stay on the eviction order(s) pending appeal: Oz, at para. 11. In any event, the Board clearly considered all the circumstances of this tenancy and was entitled to conclude there was no reason to preserve the lease in circumstances of an unlawful rent strike, where the tenants had not lived in there in over five years and transferred occupancy to others. The decision is an entirely reasonable outcome on this record.

4. Did the Board err in finding the lease obligated the tenants to pay for water utilities?

49The landlord applied to the Board under s. 64 of the Act for an order terminating the tenancy because of the tenants’ substantial interference with the landlord’s right or interest, being payment of the water utility bills. The Board dismissed the application because of a lack of reliable evidence from the landlords, such as from a ledger, that would assist the Board in determining how the tenants’ failure substantially interfered with the landlord’s right.

50The Board nevertheless made it clear that the Board in fact, found the tenants are responsible under the agreement for the utilities, including water, and that the tenants had not paid for the water supply as required.

51The tenants submit the Board’s findings of responsibility for the water bill are in error because the Member overlooked their arguments regarding waiver and promissory estoppel. They seek to overturn these findings to preserve their future rights and defend against any claim by the landlord.

52This application was a further chapter from the tenants’ refusal to pay for water utilities after they left the rental unit in June 2019. The tenants claim they promptly put the landlord on notice of this change to the tenancy agreement when they moved out and that the landlord failed to address the issue in a timely way. This dispute led to an application heard in July 2023, where the Board ordered the tenants to pay the water utilities. The tenants candidly admit they “defied” the Board’s order because they intend to preserve their claim pending full and final disposition of their fresh abatement applications.

53I give this submission no credit. There is no right of appeal from an issue of fact. I see no basis on which to question the reasonableness of the Board’s decision. The tenants also misunderstand waiver and estoppel: Maracle v. Travellers Indemnity Co., , [1991] 2 S.C.R. 50; Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., , [1994] 2 S.C.R. 490.

54The tenants are again recycling arguments that were unsuccessful on earlier challenges of Board decisions. This court has previously explained to the tenants that the Board is not required to reference very piece of evidence and argument and wrestle minutely with all aspects of the evidence. The Board may dispose summarily of less important issues provided the overall basis of its conclusions is addressed: Oz, at paras. 55-57.

5. Was the decision to dismiss the rent abatement application unreasonable or the result of a procedurally unfair process?

55In May 2019, the tenants applied to the Board under s. 130 of the Act for a reduction in rent because of a “reduction or discontinuance of services or facilities”. The tenants claimed regrading by the homebuilder at the back of the property created an unsafe slope and made the basement and backyard unusable. The Board dismissed the application in July 2020. The Board implicitly accepted the landlord’s evidence that the slope was less than a three-foot drop and that, in any event, the change in grade was beyond the property line. The tenants requested the Board review the decision. The tenants claimed the Board erred by putting too little weight on the tenants’ photographs and disproportionate weight on the landlord’s photographs, which minimized the appearance of the hazard.

56The Board dismissed the review in August 2023 after a hearing. The Vice-Chair was not satisfied there was a serious error in the proceeding. The photographic evidence from both parties was poor. The Vice-Chair therefore could not find that the Member’s determination of the measurement of the slope was unreasonable.

57The court does not identify any question of law arising from this challenge that would permit this court to intervene on appeal. The tenants seek an order quashing the Board’s review order and returning the matter to the Board for a new hearing. The tenants submit the Board’s factual findings were unreasonable, that the application and review were tainted by procedural unfairness and a reasonable apprehension of bias.

58This matter is also not appropriate for judicial review, and the court will not intervene in the Board’s decision.

59The tenants’ arguments invite this court to relitigate the abatement application. The court generally will not reassess or reweigh evidence that was before the initial decision maker: Mihindukulasuiriya v. WSIAT and Aramark Food Services, 2023 ONSC 3461 at para. 19.

60This court will also generally not consider evidence or issues that were not before the Board at first instance. The tenants complain about the Board’s disclosure rules in effect at the time of the first hearing, which did not require pre-hearing disclosure in advance of the hearing date. This changed in 2020, when the Board began holding virtual hearings. The tenants submit the lack of disclosure rules meant they were “blindsided” by the landlord’s evidence. There is no evidence on the record that the tenants raised this concern with the Vice-Chair on review. The court declines to deal with an issue that was not addressed with the decision-maker: Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244, at para. 41.

61These proceedings are intended to be summary in nature. The Board has a statutory obligation to adopt the most expeditious process that provides an adequate opportunity for the parties to know the issues and to make submissions. The standard is not perfection. The record shows both parties had the opportunity to file evidence and challenge the reliability of the other party’s evidence. The decision-making process was fair having regard to all the circumstances: Afolabi v. Law Society of Ontario, 2025 ONCA 257 at para. 60.

62The tenants filed additional photographs of the disputed area which purport to reliably show the slope and the presence of garbage and construction debris. This evidence was not properly before the court. The tenants complain the Vice-Chair also declined to consider the photographs. They submit the Board ought to have considered this evidence on review given the unfairness from the lack of disclosure at the first hearing and because the Board ostensibly lost the evidence. This evidence will not be considered because it was not before either decision-maker of first instance at the Board, and no fresh evidence application was made: Palmer v. The Queen, , [1980] 1 S.C.R. 759; Keeprite Workers’ Independent Union et al. v Keeprite Products Ltd., . In any event, I am not persuaded these additional photographs could reasonably be expected to have affected the result.

63The tenants again offer no cogent evidence to rebut the strong presumption of the Board’s impartiality. The Board’s reasons explained why the tenant’s application was dismissed; that tenant did not establish the portion of the backyard owned by the landlord had a slope. On review, the Board addressed the tenants’ concerns and explained why it could not conclude the Member gave too much weight to the landlord’s photographic evidence. That the Board did not accept the tenants’ submissions or show how it dealt with the details of the tenants’ evidence and argument does not demonstrate its reasons were insufficient.

64This appeal and application for judicial review are dismissed.

Vexatious Litigant Application

65The respondents requested a vexatious litigant order in written submissions. However, they did not make formal application for this remedy in these proceedings, nor was this court asked to review the Board’s disposition of a vexatious litigant application. The Courts of Justice Act permits a court to order that a person may not start or continue court proceedings and may order terms where the court is satisfied a person persistently and without reasonable grounds starts vexatious proceedings or conducts a proceeding in a vexatious manner. The Board is similarly authorized to dismiss an application, refuse to hold a hearing or give directions if the Board finds the matter is frivolous, vexatious, has not been initiated in good faith or discloses no reasonable cause of action: s. 197, Landlord and Tenant Board – Rules of Procedure, Rule A8.

66The purpose of a vexatious litigant order is to prevent an abuse of the Board’s or court’s process. The orders prevent litigants from harassing others and forcing them to incur unnecessary costs and protect society’s interests by limiting the needless diversion of finite court resources to private vendettas that do not give rise to any genuine legal claim. Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts. Hallmarks of vexatious proceedings include unsustainable allegations and an unreasonable obsession with a cause: McLean v. Connell, 2025 ONCA 495, at paras. 16-24.

67Irrespective of whether the history of these proceedings justifies such an order, this court could not consider such a step without the process being initiated and followed as provided by the Board at first instance or as provided under the Rules of Civil Procedure. These reasons should not be interpreted as having substantively disposed of a vexatious litigant application, because no such proceeding was commenced.

Disposition

68The tenants’ appeal and application for judicial review in DC-25-1609 and DC-25-1610 of the Board decision dated December 20, 2024, amended January 17, 2025, is dismissed:

a. The statutory stay of the Board’s eviction order is lifted immediately, subject to Paragraph 3 of the Board’s order in File Number: LTB-L-074093-22 and LTB-L-072500-23, issued December 20, 2024, amended January 17, 2025, which is varied to direct the Unauthorized Occupants shall move out of the rental unit on or before September 30, 2026.

b. Aggregate costs of the appeal and application for judicial review are fixed in the amount of $10,000, payable by the applicant/appellant tenants to the respondent landlords.

69The tenants’ appeal and application for judicial review in DC-23-1419 and DC-23-1420 of the review order dated August 24, 2023, confirming the Board decision dated July 28, 2020, is dismissed.

a. Aggregate costs of the appeal and application for judicial review are fixed in the amount of $10,000, payable by the applicant/appellant tenants to the respondent landlords.

70The Board does not seek its costs on these appeals and applications for judicial review, and none is ordered to be paid to or by the Board.