CITATION: Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin, 2020 ONSC 7405
DIVISIONAL COURT FILE NO.: DC-19-2531
LANDLORD AND TENANT BOARD FILE NO.: EAT-83087-19 DATE: 20201201
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, J.A. Ramsay and Favreau JJ.
BETWEEN:
OTTAWA-CARLETON ASSOCIATION FOR PERSONS WITH DEVELOPMENTAL DISABILITIES/OPEN HANDS
Robert D. Aburto and Michelle J.T. Cicchino, for the Appellant
Appellant
– and –
ANDRÉ SÉGUIN by his Litigation Guardian VICTOR SÉGUIN
Robert Coulombe, Respondent
Respondent
Heard at Ottawa (by videoconference): November 20, 2020
Swinton J.
Overview
[1] Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands (“the appellant”) appeals an order of the Landlord and Tenant Board dated September 5, 2019 that ordered it to reinstate the respondent André Séguin to the care home in which he had been living prior to his eviction. The appellant argues that the Board had no authority to order reinstatement, and it had denied procedural fairness to the appellant during the hearing that led to the order.
[2] For the reasons that follow, I would dismiss the appeal, as the Board had the statutory authority to make the reinstatement order, and there was no denial of procedural fairness in the way the hearing was conducted.
Background Facts
[3] The appellant is a registered charity that works with the Ontario Ministry of Children, Community and Social Services (the “Ministry”) to provide services to persons with disabilities. It operates more than 20 homes where it provides care and supervision services in conjunction with accommodation.
[4] The respondent is an adult with severe Autism Spectrum Disorder. He is non-verbal, and he requires 24-hour care. He had been resident in one of the appellant’s care homes in Cornwall from 1998 until he was evicted in May 2019. At that time, he had been residing in a room in a three-bedroom home that offered 24-hour care. His income from the Ontario Disability Support Program went towards rent for his room.
[5] At the outset of the hearing of this appeal, the Court ordered that the style of cause be amended to reflect the fact that Victor Séguin, father of the respondent, had agreed to act as his litigation guardian in these proceedings. Mr. Séguin and his wife Joy have been appointed permanent guardians of the person and for property for their son.
[6] Funding for the home is provided by the Ministry, as the appellant is a service agency pursuant to the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, S.O. 2008, c. 14. Developmental Services Ontario (“DSO”) confirms eligibility for Ministry-funded development services, and it makes referrals for filling vacant rooms from a wait list that it maintains.
[7] Prior to the eviction, staff members at the home had difficulties with the respondent’s parents, although they did not have complaints about him personally. After a group grievance was filed alleging harassment by the parents, the appellant obtained a report from an outside investigator and then decided to “discharge” the respondent. Apparently, the appellant did not know that it was a landlord subject to the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”), and it gave no notice of termination to the respondent tenant, as required by the Act.
[8] The appellant says that the parents would not meet to discuss the investigator’s report. On May 15, 2019, the appellant delivered the respondent, with two bags of his belongings and with a police escort, to his parents’ home. In an accompanying letter to the parents, the appellant referred to a long history of bullying and harassment by them and stated,
In response to these findings, and in order to ensure the safety of our employees, a decision has been taken to discharge André to your care effective immediately to end this pattern of bullying and harassment. We have informed both the Ministry and DSOER of this decision in anticipation of you contacting them to seek a placement for André.
[9] The respondent, through his parents, then filed a Tenant’s notice under the Act, claiming that the appellant, his landlord, had violated the Act in a number of ways: entering the rental unit illegally; altering the locking system on a door giving entry without providing replacement keys; and substantially interfering with the reasonable enjoyment of the rental unit or residential complex by the tenant.
The Legislative Framework
[10] The Residential Tenancies Act governs the relationship between landlords and tenants in respect of residential tenancies in Ontario. The purpose of the Act is set out in s. 1. Among those purposes is the protection of residential tenants from unlawful evictions:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. (emphasis added)
[11] An important feature of the Act is security of tenure for tenants. Subsection 37(1) stipulates that a tenancy may only be terminated in accordance with the Act. Importantly for purposes of the present appeal, s. 39 states that a landlord can only recover possession of a rental unit subject to a tenancy if the tenant has vacated or abandoned the rental unit, or the Board has made an order evicting the tenant.
[12] The Act sets out the grounds on which a landlord may seek an eviction order – for example, the non-payment of rent (s. 59) or the tenant’s substantial interference with the the landlord’s or other tenants’ reasonable enjoyment of the residential complex (s. 64). Importantly, the landlord must initiate a proceeding under the Act and give proper notice to the tenant using the forms authorized by the Board. In some situations, the tenant may then have an opportunity to correct the offending conduct and void the notice (see, for example, ss. 59(3) and 62(3)).
[13] If the matter proceeds to a hearing, the Board must decide if there are grounds for termination of the tenancy. If so, the Board must then consider whether to order eviction, as s. 83(1)(a) states that the Board may “refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse.” If the Board decides to refuse to order eviction, it may impose conditions (s. 204).
[14] In the present case, the landlord did not apply to terminate the tenancy and seek an eviction order. Instead, the proceedings came before the Board as a result of the respondent tenant’s application pursuant to s. 29 of the Act, in which he sought an order of reinstatement of possession to his rental unit because the landlord’s unlawful eviction interfered with his rights under the Act.
[15] Sections 30 and 31 deal with remedies for tenants who have brought a successful application under s. 29. Section 30 deals with repairs and is not applicable here. Section 31 sets out further remedial orders the Board may make. It provides in subsection (1):
31(1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,
(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;
(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,
(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and
(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;
(c) order an abatement of rent;
(d) 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;
(e) order that the tenancy be terminated;
(f) make any other order that it considers appropriate.
[16] The following subsections deal with remedies for induced vacating and the landlord’s changing of the locks without providing replacement keys.
(2) If in an application under any of paragraphs 2 to 6 of subsection 29 (1) it is determined that the tenant was induced by the conduct of the landlord, the superintendent or an agent of the landlord to vacate the rental unit, the Board may, in addition to the remedies set out in subsection (1), order that the landlord pay a specified sum to the tenant for,
(a) all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit; and
(b) reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur.
(3) If the Board determines, in an application under paragraph 5 of subsection 29 (1), that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex, or caused the locking system to be altered, during the tenant’s occupancy of the rental unit without giving the tenant replacement keys, and if the Board is satisfied that the rental unit is vacant, the Board may, in addition to the remedies set out in subsections (1) and (2), order that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else.
(4) An order under subsection (3) shall have the same effect, and shall be enforced in the same manner, as a writ of possession.
(5) An order under subsection (3) expires,
(a) at the end of the 15th day after the day it is issued if it is not filed within those 15 days with the sheriff who has territorial jurisdiction where the rental unit is located; or
(b) at the end of the 45th day after the day it is issued if it is filed in the manner described in clause (a).
The Proceedings Before the Board
[17] At the first appearance before the Board on June 21, 2019, an interim order was made requiring the landlord to ensure that the rental unit remained vacant and unoccupied until the matter was resolved.
[18] After receiving written submissions from the parties on the application of the Act to the living accommodation and a telephone hearing, the Board issued a second interim decision on July 19, 2019, which held that the parties were in a landlord/tenant relationship, and the Act applied. This order has not been the subject of an appeal or judicial review.
[19] The Board then scheduled a further hearing on the merits of the respondent’s application. A telephone hearing was held on August 28, 2019. As the appellant had not followed the procedures under the Act for the termination of a tenancy, the hearing before the Board was essentially concerned with the remedy for the respondent. Counsel for the appellant agreed that this was the case (Transcript, p.2).
[20] At the beginning of the hearing, the respondent only sought reinstatement and withdrew the request for other remedies such as an administrative fine. However, during the hearing, his counsel indicated that if reinstatement were not ordered, the Board should award $25,000 in monetary relief, the maximum the Board could order.
[21] The appellant then sought to introduce evidence from two witnesses with respect to funding and events at the care home prior to the eviction, as well as evidence from the investigator. The Board refused to hear evidence about the staff grievances, their threats to resign and the investigation, as to do so would bypass the procedures for termination of a tenancy under the Act (Transcript, p. 24). The Board member also concluded that the proposed evidence would not show that the return of the respondent would cause unsafe conditions, as all the staff complaints were against his parents’ demands and harassment, and there were no allegations of violence against anyone (Transcript, pp. 34, 35). However, the Board member did tell the appellant’s counsel that she would hear arguments and “any evidence you want to present on this remedy being requested” (Transcript, p. 17).
[22] The Board member was informed by the appellant’s counsel and Don Ferguson, the Executive Director of the appellant, that the respondent’s former room remained empty, but that the Ministry had assigned the room to another individual JJ. JJ was in transitional temporary housing paid for by the appellant because of the Board’s order to keep the room vacant. Mr. Ferguson also told the Board that he feared the staff would quit if the respondent were reinstated, and he might have to close the home.
[23] The parties subsequently filed written materials. In its material, the appellant submitted that reinstatement should not be ordered, and if the parties could not resolve the dispute, the appellant should be required to pay $25,000 for the difference in costs of rent and services.
The Decision of the Board
[24] In the final decision dated September 5, 2019, the Board found that the appellant had substantially interfered with the respondent’s reasonable enjoyment of the rental unit or the residential complex, because it had evicted him without proper notice of termination and without an order of eviction from the Board. The member concluded that it was appropriate to order the respondent reinstated to possession of the rental unit, and she ordered that he be allowed to return to the rental unit immediately.
[25] In her reasons, the member stated that there was insufficient evidence to prove that there had been illegal entry to the rental unit or that the lock to the rental unit or the residential premises had been changed. She also rejected the argument that there had been an “induced vacating” under s. 31(2).
[26] The member explained why she refused to hear the appellant’s evidence with respect to the reasons that the tenant was evicted, relying on s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the “SPPA”). At para. 9, she stated,
In my view, allowing the Landlord to introduce evidence regarding what led to the Tenant’s unlawful eviction would have amounted to an abuse of process as it would have allowed the Landlord to circumvent the Act’s requirements respecting how landlord’s [sic] can lawfully terminate a tenancy.
[27] The member considered the appellant’s arguments against reinstatement, including the fact that JJ had been assigned the room by the Ministry, and that employees might refuse to work and the appellant might have to close the home. However, she concluded that she could order reinstatement pursuant to s. 31(1)(f) of the Act in the circumstances, and reinstatement was the proper remedy. As she stated (at para. 13),
In my view, it is the Landlord which put itself in this position by unlawfully evicting the Tenant and it would be unfair to deny the Tenant the right to return to the rental unit due to Landlord’s failure to take the steps necessary to terminate the tenancy and evict the Tenant in accordance with the Act. Therefore, I find that the Tenant must be permitted to return to the rental unit immediately.
[28] This order has been stayed pursuant to the SPPA pending this appeal.
The Issues on Appeal
[29] An appeal lies to the Divisional Court pursuant to s. 210(1) of the Act only on a question of law.
[30] The appellant argues that the Board erred in law in two ways:
a. The Board had no authority to order reinstatement pursuant to s. 31(1)(f) of the Act, and
b. The Board denied the appellant procedural fairness.
The Standard of Review
[31] As this is a statutory appeal, the standard of review is correctness with respect to a question of law (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37).
Preliminary Issue of the Appellant’s Reply Factum
[32] The appellant filed a reply factum that raised new issues not raised in its initial factum. There is no right to file a reply factum under the Rules of Civil Procedure, except in limited circumstances on a motion for leave to appeal an interlocutory order (see Rule 61.03.1(11)).
[33] The appellant states that Labrosse J., in a case management endorsement, set a date for the filing of reply materials. Even if that constituted authorization to file a reply factum, this was an improper reply factum.
[34] A reply factum should be filed only to address a new issue raised in the respondent’s factum that has not been addressed in the appellant’s factum. Leave may also be sought to file a reply factum if a matter could not have been dealt with in the initial factum – for example, because there has been a change in the law, such as the Supreme Court’s decision in Vavilov. Normally, reply factums are brief, and they should not repeat or amplify on what is in the initial factum.
[35] The argument in the appellant’s reply factum was 18 pages in length. The only new issue was the request to appoint Mr. Séguin as litigation guardian, which took less than a page.
[36] The rest of the factum was improper. It raised a new issue respecting s. 204(1) of the Act (an issue that the appellant had not raised before the Board), a new argument that the Board had pre-determined the outcome, and a new argument that the Board erred in failing to determine if there was a landlord and tenant relationship between JJ and the appellant. To its allegations of procedural unfairness, it added the failure to swear or affirm witnesses and to permit cross-examination. It also added new information about the facts (including alleged facts about the parents and the investigation, when the Board had ruled that such information was not relevant), as well as the statutory context for the care home, including a detailed discussion of the Developmental Services Act. Finally, it re-argued, at length, the points in the initial factum.
[37] This was an improper reply factum, and it should not have been filed. To the extent that it raised new issues, it was unfair to the respondent, who was not able to respond.
There was no Denial of Procedural Fairness
[38] The appellant submits that it was denied procedural fairness in a number of ways:
• it was denied an oral hearing;
• it was denied the opportunity to be heard because it was not allowed to present its evidence;
• it was denied an opportunity to cross-examine witnesses;
• the Board reversed the burden of proof;
• the Board improperly allowed the respondent to lead reply evidence; and
• the Board approached the remedy issue with a pre-determined outcome.
The Telephone Hearing
[39] After the initial appearance before the Board in June, the parties made written submissions on the issue of jurisdiction. The Board refused the appellant’s July email request for an oral hearing. However, prior to determining the issue of jurisdiction, the Board held a telephone hearing. It subsequently held the remedy hearing by telephone, although it also allowed the parties to provide written submissions following the hearing.
[40] Section 183 of the Act provides,
The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
[41] The Court of Appeal has held that the Board has “wide discretionary powers over matters of procedure and process” (Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority, 2002 41961 (ON CA) at paras. 16-19).
[42] The SPPA, which applies to the Board’s hearings, permits the Board to hold electronic hearings, including telephone hearings (ss. 1(1) and 5.2). Pursuant to Rule 7.1 of the Board’s Rules of Practice, the Board may conduct all or part of a hearing in person, in writing, by telephone or other electronic means, as it considers appropriate. If a party objects to an electronic hearing, it must provide a written explanation of why such a hearing would cause “significant prejudice” (SPPA, s. 5.2(2) and Rule 7.2).
[43] Clearly, the Board had the discretion to hold the hearing by telephone. This was not a complex matter, and there was urgency throughout, given that the respondent had been evicted. By the time of the August hearing, it should have been evident that remedy was the only remaining issue, and a telephone hearing had the advantage that it could proceed without delay.
[44] The appellant has not demonstrated in any way that the use of a telephone hearing interfered with the fairness of the hearing or its ability to present its case adequately. It has not demonstrated “significant prejudice” because of a telephone hearing. The appellant was heard on the issues the Board had to consider respecting remedy.
The Refusal to Hear Evidence
[45] The appellant relies on s. 10.1 of the SPPA, which provides that a party in a hearing may call and examine witnesses, present evidence and submissions, and conduct cross-examinations of the witnesses “reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.” The appellant submits that the Board denied it a fair hearing by refusing to hear its witnesses and allowing it to cross-examine witnesses, and the Board improperly relied on s. 23(1) of the SPPA in finding that allowing the admission of the evidence would result in an abuse of process.
[46] Subsection 23(1) of the SPPA provides that a “tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” This is a broadly worded power.
[47] The August 2019 hearing was to deal with the remedy for an unlawful eviction. The appellant had removed the respondent from his room and the residence without following the process in the Act. As the Board found, that was a substantial interference with the tenant’s right to reasonable enjoyment. That only left the issue of remedy pursuant to s. 31.
[48] The appellant sought to adduce evidence respecting the situation that led it to evict the respondent and the funding structure for the care home. The Board correctly held that this evidence was not relevant to the issue of remedy, although it might properly be considered if the appellant commenced a proceeding under the Act seeking to terminate the tenancy lawfully. Therefore, the Board did not err in excluding the proposed evidence.
[49] Moreover, the Board did not err in relying on s. 23(1) of the SPPA. The member concluded that it would be an abuse of process for the appellant, who had not complied with the termination process under the Act, to then lead evidence at a hearing to determine the tenant’s remedy so as to justify keeping him out of the residential unit. Allowing a landlord to, in effect, justify an unlawful eviction in these circumstances would deprive the tenant of the notice and protections to which he is entitled under the Act. The Board made no error in law when it concluded that the leading of evidence of events that occurred prior to the eviction would be an abuse of process.
[50] The appellant was able to present evidence from Mr. Ferguson that brought to the Board’s attention his concerns about employee reaction to a reinstatement of the tenant and the new placement of JJ by the Ministry. While the information from Mr. Ferguson was unsworn, the appellant itself refers to it as “evidence” in its factum – see, for example, at para. 102. The Board member heard that evidence and considered it in her reasons.
[51] In my view, there was no denial of procedural fairness or a violation of ss. 10.1 or 23(1) of the SPPA in the way the Board conducted the hearing and treated the evidence.
The Shifting of the Onus
[52] The Board did not shift the onus of proof to the appellant as it suggests. The appellant clearly violated the Act in evicting the respondent without seeking a Board order to terminate the tenancy. At the time of the August hearing, the issue was the appropriate remedy.
The Lack of Cross-examination
[53] With respect to cross-examination, I note that there were no witnesses from the respondent, so there could be no interference with a right to cross-examine.
[54] At the hearing of this appeal, the appellants stated that they should have been able to cross-examine on the costs of care the respondent would incur if he could not return to his room. There is no merit to this argument, as the appellant agreed in its written submissions to the Board that the sum of $25,000, the amount sought by the respondent, would be appropriate for the costs of future care if the respondent were not reinstated.
The Board did not improperly permit reply evidence
[55] The appellant submits that the Board permitted the respondent to file reply evidence after its written submissions. In fact, it was the appellant which sought to file new evidence with its written submissions, in the form of an affidavit of Mr. Ferguson about possible new placements for the respondent. Counsel for the respondent then reasonably wrote objecting to the affidavit and giving his reasons.
[56] Again, there was no denial of procedural fairness here.
The Board pre-determined the outcome
[57] This argument was raised in the reply factum, and I need not deal with it in detail. The argument is without merit. It is essentially an argument that the Board had a closed mind. A reading of the transcript and the reasons does not support the appellant’s allegation.
The Board Had the Power to Reinstate
[58] The appellant argues that the Board erred in law in ordering reinstatement, because there was no statutory authority to make such an order.
[59] In the present case, the Board found that the appellant had violated s. 29(1)3, substantial interference with the reasonable enjoyment of the rental unit or residential complex by the tenant. The respondent had also invoked s. 29(1)5, the provision prohibiting the changing of locks without providing a replacement key. The Board found that the respondent had not proved the allegation respecting the changing of locks.
[60] The Board relied on the basket clause in s. 31(1)(f) to order reinstatement of the respondent. That provision allows the Board to make any order that it considers appropriate. The appellant argues that the Board erred because the only power to reinstate is found in s. 31(3). That provision states that it is “in addition to” the remedies in s. 31(1). Therefore, the appellant argues, reinstatement cannot be ordered under s. 31(1)(f).
[61] The appellant relies on the principle of tautology – that the Legislature does not use meaningless or superfluous words. According to its interpretation, s. 31(3) provides a reinstatement remedy only if the conditions in s. 31(3) are met: the Board must find that the landlord changed the locks to the rental unit or residential complex without providing replacement keys to the tenant, and the rental unit must be vacant. In the present case, the appellant argues, there has been no proof the locks were changed and there is another tenant, JJ, so the Board erred in law in ordering reinstatement.
[62] I disagree. The modern approach to statutory interpretation requires that “the words of an Act are to 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” (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26).
[63] Section 1 of the Act sets out its purposes, with a key one being the protection of tenants against unlawful evictions. Moreover, the Act is remedial legislation, and it is to be given a large and liberal interpretation, as the Court of Appeal stated in Ontario (Rental Housing Tribunal, above at para. 19, “In my view, a liberal interpretive approach should govern interpretation of a remedial statute such as the Act, in a manner consistent with its tenant protection focus.”
[64] In interpreting a statute, it should be assumed that the Legislature does not intend to produce absurdities (Ruth Sullivan, Sullivan on the Construction of Statutes, Sixth Edition (Canada: LexisNexis, 2014) at §10.4; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 43.) As Sullivan states at §10.28, “An interpretation that would tend to frustrate legislative purpose or thwart the legislative scheme is likely to be labelled absurd.”
[65] In my view, the appellant’s proposed interpretation is inconsistent with the overall remedial purpose of the Act and would lead to an absurd result. The emphasis in the Act is on security of tenure for tenants, who can be removed by the landlord only in circumstances set out in the Act, on notice and after a hearing and order from the Board. As the Divisional Court stated in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 (at paras. 38), “Losing one’s home is a very serious matter for anyone.” It is even more grave when the evicted tenant is a vulnerable individual like the respondent who is living in a care home where he has 24-hour care.
[66] The appellant’s interpretation would provide a remedy of reinstatement only to those who have been locked out and the unit is vacant. Such an interpretation would result in unreasonable and inequitable outcomes that are incompatible with a major purpose of the legislation, the protection of tenants from unlawful evictions. For example, an individual like the respondent who lives in a care home may not have keys to his door. Yet such a vulnerable individual is particularly in need of protection from unlawful eviction, as is evident in the present case.
[67] Moreover, to restrict a reinstatement order to a situation where the locks are changed would leave many other tenants, evicted directly or indirectly by other means, without a remedy of reinstatement. As the respondent’s factum points out, a landlord might directly or indirectly oust a tenant from possession by other means, such as the use of security guards, threats or intimidation, blocking access to the property, cutting off utilities, or taking advantage of a tenant’s physical or mental disabilities. The appellant submits that the induced vacating provision would apply to them However, that ignores the fact that many such tenants would want to return to their home, and the monetary relief in s. 31(2) would not be an adequate remedy. Section. 31(1)(f), read in a large and liberal manner and in light of its broad words, provides a remedy of reinstatement for these tenants who have been unlawfully evicted, even if the locks were not yet changed.
[68] It is important to remember that since the respondent’s tenancy was not terminated in accordance with the Act, he remains a tenant, and he has the lawful right to possession of the unit. In Board decision TSL-06175-10-RV, 2010 65490, the Board stated at para. 3: “this issue is primarily one of logic … If the tenancy was not terminated then the Tenant must have the right to possess the rental unit as that is a right that goes along with the tenancy agreement.”
[69] Reading s. 31(1)(f) broadly to allow the Board to order reinstatement is consistent with the remedial purpose of the Act. As noted by Jack Fleming, in Residential Tenancies in Ontario, 3rd ed. (Canada: LexisNexis, 2015 at p. 1017),
A wrongfully evicted tenant who is requesting to be put back into possession should normally receive such an order. To allow a landlord to illegally evict a tenant and then not put the tenant back into possession (where the tenant wishes to reoccupy the rental unit) would bring the administration of justice into disrepute.
Fleming states as well that the Board has the power to order that the tenant be given possession of the rental unit pursuant to s. 23(1) of the SPPA (an order to prevent an abuse of process), s. 31(1)(f) of the Act, and s. 31(3) through (5) of the Act.
[70] The appellant is, in effect, relying on the implied exclusion rule of statutory interpretation, saying that the specific reference to the conditions for reinstatement order in s. 31(3) carves out this remedy from s. 31(1)(f).
[71] This rule can be rebutted, and the Court of Appeal in Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508 explained that this principle is limited, and it must be applied with due regard for the context and purpose of the legislation (at paras. 64-66.) Similarly, the presumption against tautology can be rebutted by an explanation that shows the words are not meaningless or superfluous, or that there are reasons why the Legislature wished to be redundant (Sullivan at §§8-28, 8-30).
[72] According to Fleming, above, s. 31(3) was added to ensure that the Board was aware that these particular remedies were available to it. He states (at pp. 1018-19),
The specific provision in s. 31(3) (which is limited to situations where the locking system is altered and the rental unit is still vacant) does not oust the pre-existing jurisdiction to put a tenant back into possession. This provision was an amendment to the TPA [Tenant Protection Act] in 2001. Decisions since then have used SPPA s. 23(1)(a) as authority to put the tenant back into possession.
This is similar to the specific damage provision in s. 31(1)(b), introduced in the same amending legislation, which the Divisional Court held did not restrict the more general “any other order” provision in s. 31(1)(f). Similarly, the s. 31(3) provision for reinstating tenants should be seen as merely specifying this particular, already available, remedy. With respect to both remedies, the specific remedy was needed as the OHRT was often (wrongly) asserting that it lacked jurisdiction to grant the remedy.
[73] Thus, s. 31(3) is a provision that clarifies the Board’s power to order reinstatement when locks are changed and the tenant is out of the unit. Notably, it also provides a mechanism for enforcing the remedy in s. 31(4) by allowing the Sheriff to assist in regaining possession.
[74] The respondent also argues that the Board had the authority to order reinstatement pursuant to s. 23(1) of the SPPA to prevent an abuse of its process, relying on Metropolitan Toronto Housing Authority v. Ahmed, [2001] O.J. No. 1477 (Div. Ct.) and Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692 (Div. Ct.)). However, the Board member did not rely on this section to justify her order of reinstatement. In my view, she had the authority to make the order pursuant to s. 31(1)(f) and made no error in law in doing so.
[75] The appellant makes much of the fact that the Ministry has now assigned JJ to the respondent’s room. However, JJ is not in physical possession of the room. Indeed, the respondent is still the lawful tenant of that room, given that his tenancy has not been terminated in accordance with the Act. In making the order, the Board member considered the interests of JJ, but reasonably concluded that the respondent should be reinstated, given that there has been no lawful termination of his tenancy, there is no danger of violence nor safety issues because of his conduct if he returns, and JJ is not in possession of the room.
Conclusion
[76] As the appellant has not demonstrated any error of law by the Board, the appeal is dismissed. The stay of the Board’s order is lifted, and the Board’s order respecting the respondent’s reinstatement to possession of the rental unit should be carried out immediately. It is to be hoped that all those affected by this decision will make sincere efforts to work cooperatively in André’s best interests.
[77] The parties have agreed that there will be no order as to costs.
___________________________ Swinton J.
I agree
Favreau J.
J.A. Ramsay J.
[78] I agree with Swinton J.’s disposition of the appeal and with her reasons. My only reservation is with respect to the resort by the Board member to s.23 of the Statutory Powers Procedure Act to exclude evidence of the reasons for the eviction. The evidence was properly excluded because it was irrelevant at that stage. I do not think that the appellant’s attempt to introduce it was an abuse the processes of the tribunal. Unlike the landlords in Ahmed and Kwak, the appellant did not use the processes of the tribunal to effect the eviction. When the respondent invoked the process, the appellant was entitled to ask for a remedy other than recovery of possession.
J.A. Ramsay J.
Date of Release: December 1, 2020
CITATION: Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin, 2020 ONSC 7405
DIVISIONAL COURT FILE NO.: DC-19-2531
LANDLORD AND TENANT BOARD FILE NO.: EAT-83087-19 DATE: 20201201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, J.A. Ramsay and Favreau JJ.
BETWEEN:
OTTAWA-CARLETON ASSOCIATION FOR PERSONS WITH DEVELOPMENTAL DISABILITIES/OPEN HANDS
Appellant
– and –
ANDRE SÉGUIN by his Litigation Guardian VICTOR SÉGUIN
Respondent
REASONS FOR JUDGMENT
Swinton J., concurring reasons J.A. Ramsay J.
Date of Release: December 1, 2020