Court File and Parties

Citation: Blaker v. Chan, 2013 ONSC 6331 Divisional Court File No.: DC-13-0478 Date: 2013-10-29 Superior Court of Justice – Ontario Divisional Court

Re: Kevin Blaker, Appellant/Tenant And: Mandy Yat Sing Chan, Respondent/Landlord

Before: Matlow, Aston, Donohue JJ.

Counsel: Jordan Fletcher, for the Appellant/Tenant Fabio M. Soccol, for the Respondent/Landlord

Heard: October 2, 2013 at Hamilton

Endorsement

Aston J. (Orally)

[1] This is an appeal by the tenant from an eviction order of the Landlord and Tenant Board dated May 22nd, 2013, as amended May 24 2013. Section 210 of the Residential Tenancies Act, 2006, [pat’s addition] S.O. 2006, c. 17 (the “Act”),] provides a right of appeal to this court but only on a question of law.

[2] In paragraph 3 of the Board’s reasons the board member lists the issues to be determined. In doing so, the board member included these words: “Is it unfair to the landlord to refuse or delay the eviction under s.83 of the Residential Tenancies Act?” The Board applied an incorrect or incomplete legal test by defining the issue as whether it is “unfair” to refuse or delay eviction under s.83 of the Act. The Board articulated the test under the discretionary provision in s.83(1) of the Act, however it failed to consider that under s.83(3), the Board has no discretion and must refuse to grant an eviction order if it determines that there has been a “serious breach of the landlord’s responsibilities under the Act or of any material covenant in the tenancy agreement.”

[3] In this case, the Board explicitly found that the landlord had “substantially interfered with the tenant’s reasonable enjoyment of the premises.” Particulars of that finding are set out in paragraphs 16 to 18 of the reasons. On their face, they seem to constitute a “serious breach”. At the very least, the reasons need to explain why s.83(3) was not applicable on the facts as found.

[4] The rationale for merely postponing eviction, rather than refusing an eviction order, is set out in paragraph 33 of the reasons. That rationale may support a discretionary decision under s.83(1), particularly having regard to the tenant’s own conduct. However s.83(3) is mandatory not discretionary. Furthermore, the tenant’s misconduct is not a relevant consideration under s.83(3), which focuses solely on the landlord’s conduct.

[5] There is no reference to s.83(3) in the reasons and we cannot assume that the Board considered its provisions, given the more narrow definition of the issue in paragraph 3 of the reasons and the factual findings in paragraphs 16 to 18.

[6] The appeal is allowed and the order under appeal is remitted to the same board member for reconsideration, specifically to consider the applicability of s.83(3) of the Act to the facts as found.

Aston J.

Matlow J.

Donohue J.

Date: October 29, 2013