CITATION: Smith v. Youthlink Youth Services, 2020 ONSC 7624

DIVISIONAL COURT FILE NO.: 238/20

DATE: 20201214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Kristjanson, O’Brien JJ.

BETWEEN:

Lydian Smith

Appellant

– and –

Youthlink Youth Services

Respondent

Claire Millgate and Mary Birdsell, for the Appellant

Lonny Rosen and Clancy Catelin, for the Respondent

-and –

Landlord and Tenant Board

Intervenor

Linda Naidoo for Intervenor

HEARD by Videoconference December 4, 2020

Backhouse J.

Overview

[1] Lydian Smith (“the Appellant”) appeals a preliminary finding issued June 22, 2020 by the Landlord and Tenant Board (“LTB”) that it lacked jurisdiction to hear her application seeking relief from an illegal eviction as a tenant of Youthlink Youth Services (“the Respondent”).

[2] The LTB held that the Respondent, in whose transitional housing the Appellant resided from December 8, 2019 until March 31, 2020, was exempt from the Residential Tenancies Act, S.O. 2006, c.17 (“RTA”) pursuant to an exemption under s. 5 (k) of the RTA for “rehabilitative and therapeutic” service providers.

[3] The Appellant submits that the Respondent does not provide living accommodation occupied by a person for the purpose of receiving rehabilitative or therapeutic services and therefore cannot be exempt from the applicability of the RTA under s. 5(k). It is submitted that the LTB made an error in law in statutory interpretation by failing to account for the introduction in 2018 of a new exemption in the RTA of s. 5.1 that specifically regulates transitional housing providers and ensures that vulnerable tenants in transitional housing are protected with occupancy agreements with prescriptive requirements. It is submitted that the LTB erred in finding that the Respondent’s program falls within the exemption under s. 5(k) and is not required to comply with s. 5.1 of the RTA, contrary to legislative intent and contrary to the modern approach to statutory interpretation that incorporates a contextual, purposive approach.

[4] For the reasons that follow, I would dismiss the appeal because there is no extricable legal error and the LTB’s preliminary finding is correct.

Background Facts

[5] The Respondent is a youth and children’s mental health and wellness charity which provides a broad range of services and programs. The program supports young people between ages 16 and 21 in their transition to adulthood and independence through the provision of a variety of services to support participants’ mental health, emotional well-being and development of life skills, including housing.

[6] The Appellant was identified as a youth in need of support to develop life skills, independence and coping strategies. The Appellant was admitted to the Respondent’s program on December 8, 2019 at which time she took up residence at the program’s Florence Co-op location. The Appellant’s discharge date was set for December 7, 2020.

[7] The intake package signed by the Appellant outlines the services available to its participants as well as the rules and expectations for participation in the program. The Respondent concluded that the Appellant failed to follow the program’s rules and expectations and discharged her from the program.

Proceedings before the LTB

[8] The Appellant brought two urgent applications before the LTB: an A1 application for an order to determine whether the RTA applied to the accommodation provided to her by the Respondent and a T2 application for an order determining that she had been illegally evicted.

[9] There was inadequate time to hear the applications in their entirety in the two hours scheduled by the LTB for a teleconference hearing. The parties accordingly agreed to proceed with the Respondent’s oral motion for an order that the RTA did not apply to its program, based on the documentary evidence filed. The parties further agreed and the LTB ordered, that if it was unable to determine that the program was exempt from the RTA, a full day hearing on the merits would be scheduled.

[10] The LTB determined that the Respondent’s program is exempt from the RTA under s. 5(k) with regard to the Appellant’s occupancy and accordingly dismissed the Appellant’s applications. Specifically, the LTB reviewed the services provided by the Respondent and relied on prior case law to find that they fell within the definition of “rehabilitative and therapeutic.” The LTB considered the potential overlap between sections 5.1 and 5(k) but determined that the s. 5(k) exemption remained open to the Respondent, particularly in light of s. 5.1(5), which states that nothing in s. 5.1 limits the availability of other exemptions in the RTA.

Jurisdiction

[11] Section 210 (1) of the RTA provides that any person affected by an order of the LTB may appeal to the Divisional Court, but only on a question of law.

Standard of Review

[12] Appellate review of a tribunal decision on a question of law including statutory interpretion is addressed by the Supreme Court of Canada ("SCC") in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para.37. The SCC found that in these circumstances the standard of review is correctness.

The Statutory Scheme Under the RTA

[13] The RTA is remedial legislation with a "tenant protection focus". As remedial legislation, the RTA's provisions must be interpreted liberally to ensure the realization of its objectives. Section 1 of the RTA outlines its purpose:

1. 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.

[14] Section 3 of the RTA addresses the general scope of the RTA's application:

3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.

[15] Exemptions to the application of the RTA are set out in ss. 5 and 5.1. If a housing provider falls within the scope of an exemption, they are not subject to the RTA and fall outside the jurisdiction of the LTB. The exemptions to the RTA at issue in this matter are s. 5(k) and s.5.1:

“Exemptions from Act

5.This Act does not apply with respect to:

(k) living accommodation occupied by a person for the purpose of receiving rehabilitative or therapeutic services agreed upon by the person and the provider of the living accommodation, where,

(i) the parties have agreed that,

(A) the period of occupancy will be of a specified duration, or

(B) the occupancy will terminate when the objectives of the services have been met or will not be met, and

(ii) the living accommodation is intended to be provided for no more than a one-year period;

Other exemption from Act

5.1 (1) This Act does not apply with respect to living accommodation provided to a person as part of a program described in subsection (2) if the person and the provider of the living accommodation have entered into a written agreement that complies with subsection (3).

Program requirements

(2) A program referred to in subsection (1) is a program that meets all of the following requirements:

1. The program consists of the provision of living accommodation and accompanying services where,

i. the living accommodation is intended to be provided for no more than a four-year period, and

ii. the accompanying services include one or more of the following services, regardless of where and by whom the services are provided:

A. rehabilitative services,

B. therapeutic services,

C. services intended to support employment, or

D. services intended to support life skills development.

2. The program is intended to support the occupant of the living accommodation in subsequently obtaining and maintaining more permanent living accommodation.

3. All or part of the program is,

i. provided by, or funded under an agreement with,

A. the Crown in right of Canada or in right of Ontario,

B. an agency of the Crown in right of Canada or in right of Ontario,

C. a municipality, or

D. a service manager as defined in the Housing Services Act, 2011, or

ii. provided or funded by a registered charity within the meaning of the Income Tax Act (Canada).

Agreement between the provider and the occupant of the living accommodation

(3) The agreement between the provider of the living accommodation and an occupant of the living accommodation must meet all of the following requirements:

1. The agreement must state that the provider of the living accommodation intends that the living accommodation be exempt from this Act and must also state that the occupant may apply to the Board under section 9 of this Act for a determination of whether this Act applies with respect to the living accommodation.

2. The agreement must set out the following:

i. the legal name and address of the provider of the living accommodation,

ii. the maximum period of the occupant’s occupancy of the living accommodation,

iii. the circumstances under which and the process by which the occupant’s occupancy of the living accommodation may be terminated by the provider of the living accommodation,

iv. the occupant’s rights and responsibilities in respect of the occupant’s occupancy of the living accommodation,

v. the rules that apply to the occupant’s occupancy of the living accommodation,

vi. the amount of any consideration required to be paid by the occupant for the right to occupy the living accommodation, and

vii. the amount of any other charges to be paid by the occupant in conjunction with the living accommodation.

3. The agreement must set out a process to address disputes between the occupant and the provider of the living accommodation which must,

i. include a reasonable method by which either party may initiate the process,

ii. provide for the involvement of an individual not otherwise involved in the dispute, to assist the parties in resolving the dispute, and

iii. meet such other requirements as may be prescribed.

4. Unless the information is set out in a separate agreement under subsection (4), the agreement must set out the following information in respect of the program under which the living accommodation is provided to the occupant:

i. the occupant’s rights and responsibilities in respect of the occupant’s participation in the program, other than the rights and responsibilities described in subparagraph 2 iv,

ii. the rules that apply to the occupant’s participation in the program, other than the rules described in subparagraph 2 v,

iii. the amount of any charges to be paid by the occupant in conjunction with the program, other than the charges referred to in subparagraphs 2 vi and vii,

iv. the policy of the provider of the living accommodation or the administrator of the program, as applicable, with respect to securing alternate living accommodation for an occupant whose participation in the program or whose occupancy of the living accommodation is terminated, and

v. the policy of the provider of the living accommodation or the administrator of the program, as applicable, with respect to readmission into the program.

5. The agreement must meet such other requirements as may be prescribed.

Requirements in subpars. 4 i to v of subs. (3)

(4) Where the provider of the living accommodation and the administrator of the program under which the living accommodation is provided to the occupant are not the same person or entity, any information required by subparagraph 4 i, ii, iii, iv or v of subsection (3) may be set out in the agreement in respect of the occupant’s participation in the program entered into between the occupant and the administrator of the program, if the agreement,

(a) sets out the legal name and address of the administrator of the program; and

(b) meets such other requirements as may be prescribed.

No limitation

(5) Nothing in this section limits the availability of other exemptions under this Act.

Existing tenancy

(6) For greater certainty, nothing in this section exempts living accommodation that is subject to a tenancy to which this Act applies, unless the tenancy has first been terminated in accordance with this Act.

Application to determine issues

9 (1) A landlord or a tenant may apply to the Board for an order determining,

whether this Act or any provision of it applies to a particular rental unit or residential complex;

any other prescribed matter.

(2) On the application, the Board shall make findings on the issue as prescribed and shall make the appropriate order.”

The Issues

[16] The following issues are raised on this appeal:

(1) Did the LTB err in law in its interpretation of the RTA by finding that the Respondent’s program is exempt from the applicability of the RTA under the s. 5(k) exemption for “rehabilitative and therapeutic” service providers and need not follow the requirements of an occupancy agreement under s. 5.1(3)?

(2) If the LTB erred on a question of law, what is the appropriate disposition of this court?

Analysis

Alleged Error in Statutory Interpretation

[17] The Appellant made a number of arguments in support of her primary argument that the LTB erred in its interpretation of the RTA. She submits that s. 5.1 was added to the RTA in order to appropriately provide a tailored exemption for transitional housing programs, provide for security of tenure and due process rights for tenants, and to cure the problem of decision makers inappropriately using s. 5(k) to exempt transitional housing programs from the RTA. She submits that the primary purpose of the Respondent’s program fits squarely within the definition contained in s. 5.1 and its provision of services is incidental to that core purpose. She argues that any finding that the Respondent’s program is exempt from the RTA should have been evaluated under s. 5.1. She submits that to interpret the RTA as the LTB has done defeats the whole remedial purpose of the new exemption in s. 5.1 that specifically regulates transitional housing providers and ensures that vulnerable tenants in transitional housing are protected with occupancy agreements with prescriptive requirements. The Appellant submits that the s. 5(k) exemption is restricted to providers of rehabilitative or therapeutic services which are more than incidental to the housing.

[18] The problem with this argument is that the LTB was aware that to meet the s. 5(k) exemption, the services provided must be more than incidental to the occupation and found that the services the Respondent provided met this requirement. This is a factual issue and is therefore outside the jurisdiction of this court.

[19] It is submitted that the LTB erred in relying upon caselaw which was decided prior to the s. 5.1 amendment and this resulted in an overly broad interpretation of s. 5(k) which rendered the protections under s.5.1 meaningless. It is submitted that the LTB’s interpretation of the RTA is contrary to legislative intent and contrary to the modern approach to statutory interpretation that incorporates a contextual, purposive approach.

[20] The Appellant relies upon an Ontario Ministry of Housing Consultation Paper, Hansard and a letter from the Assistant Deputy Minister to transitional housing providers after the passage of s. 5.1 as evidence of the legislative intent that s. 5.1 and not s. 5(k) was to apply to transitional housing providers.

[21] Statutory interpretation requires consideration of the text, context and purpose of legislation. The starting point is the text of the legislation. The Supreme Court of Canada has repeatedly endorsed Driedger’s approach to statutory interpretation. Driedger’s modern principle [as found in Construction of Statutes, 2^nd ed.] is as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and intention of Parliament. (Bell Express Vu Limited Partnership v. Rex, 2002 SCC 33, [2002] 2 S.C.R. 559, [2002] S.C.J. No.43 at para.26.)

[22] After considering the text, the court should consider the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found. If this analytical approach yields a plausible approach then the court need go no further and should adopt that interpretation. It is only when there remains genuine ambiguity between reasonable interpretations that the court should resort to other principles of statutory interpretation. (See Bell ExressVu at para.29) The Supreme Court of Canada has held that extrinsic aids are admissible but of limited value where the meaning of a challenged provision is clear. Additionally the Supreme Court has cautioned that courts remain mindful of the limited weight and reliability of Hansard where it is used. Moreover, where it must be used as an extrinsic aid to resolve ambiguity in legislation, it should relate to the relevant provision of the Act. (Morgentaler, 1993 74 (SCC), [1993] 3 SCR 463 at pp.483-84.)

[23] In finding that s. 5.1 is broader and encompasses more housing situations but does not replace or eliminate s. 5(k) because of s. 5.1(5), the LTB considered the text, context, and purpose of the amendment and determined that the Respondent was entitled to rely on the s. 5(k) exemption without complying with the written agreement requirement which applied to s. 5.1 exemption.

[24] Specifically, the Appellant points to the following statement in the Consultation Paper as a clear statement of the Ministry’s intention that after the s. 5.1 amendment, transitional housing could no longer rely on s. 5(k):

However, along with proposed changes for transitional housing (new exemption or provisions), MHO is considering whether the s. 5(k) exemption for accommodation occupied for the purpose of receiving rehabilitative services should remain as in the RTA for accommodation such as short-term addiction, alcohol and drug rehabilitation centres (where often the resident has a primary residence to return to after completion of the program.)

[25] This statement falls short of evincing an intention that after the s. 5.1 amendment, transitional housing providers who met the requirements of s. 5(k) could no longer rely on it.

[26] Moreover, there are other statements in the documents the Appellant relies upon that support that the purpose of the amendment was to provide an expanded exemption for transitional housing programs that exceed one year with additional protections for occupants under that exemption, not to narrow the already existing s. 5(k) exemption. Each of the documents referred to notes that the introduction of s. 5.1 was intended to provide flexibility to transitional housing programs and allow providers to operate longer-term programs and still be exempt from the RTA, provided they meet certain additional requirements. I do not agree with the Appellant that they support her argument that if they meet the requirements of s. 5(k), current transitional housing providers must fall under s. 5.1. The legislative intention is clearly set out in s. 5.1(5) which provides:

5.1 (5) Nothing in this section limits the availability of other exemptions under this Act.

[27] The Appellant submits that s. 5(k) and s. 5.1 must be read together or the whole remedial purpose of requiring transitional housing providers to have an occupancy agreement to qualify for the s. 5.1 exemption is defeated in a way that creates an absurdity. I do not agree.

[28] Both s. 5(k) and s. 5.1 exempt occupancy agreements in which rehabilitative and therapeutic services are a component of that relationship. The primary distinction between s. 5(k) and s. 5.1 in exempting rehabilitative and therapeutic services is that s. 5.1 covers occupancy agreements that are longer in term.

[29] The s. 5(1) amendment significantly expanded the availability of exemptions to the RTA by including programs that are intended to be longer than one-year (up to four years) (s. 5.1(2)(1)(i)); need not include rehabilitative or therapeutic services (s.5.1(c)); and may be accompanied by services that are not necessarily provided by the housing provider (s.5.1(c)). I do not agree that an absurdity is created by finding that the s. 5(k) exemption continues to be available to transitional housing providers like the Respondent who meet its requirements after the passage of the more expansive s. 5.1 exception.

[30] The LTB found in paragraph 9 of its decision that s. 5.1 is broader than s. 5(k) and encompasses more housing situations. It found that s. 5.1 does not replace or eliminate s. 5(k) because s. 5.1(5) specifically confirms that nothing included in s. 5.1 “limits the availability of other exemptions” in the RTA. There is no legal error in this finding. That that finding is correct is underscored by the absence of any transitional provision at the time s. 5.1 was enacted to give existing transitional housing providers operating under the s. 5(k) exemption an opportunity to comply with the requirements of s. 5.1 before losing their exemption with potentially devastating impacts on existing programs. In its Consultation Paper the Ministry of Housing considered whether s. 5(k) should remain as an exemption. It was open to the Legislature to amend s. 5(k) to provide that it no longer applies to transitional housing providers. It did not do so.

[31] I do not agree with the Appellant’s submission that the LTB’s reasons do not consider the legislative history and Parliamentary intent of s. 5.1 when interpreting the scope of s. 5(k). The LTB’s reasons summarize the Appellant’s position regarding the interpretation of the RTA and its impact on her. It states that the Hansard transcripts and policy arguments were reviewed in making the decision. At paragraph 8, the reasons state:

8. I have turned my mind to both provisions of the Act because I find that a living accommodation that is not exempt under section 5.1(1) to (3) may still be considered exempt under section 5(k) or the reverse. The provisions of the applicable section must be course be met in order for the exemption to apply.

[32] The Appellant further submits that the Respondent’s program does not meet the requirements of s. 5(k) for two reasons:

(1) It is not a rehabilitative or therapeutic service;

(2) There was no intention that the living accommodation would be provided for a maximum of one year.

These are primarily factual disputes and fall outside of the jurisdiction of this court; however, I address the Appellant’s specific arguments on these points in more detail below.

Rehabilitative or therapeutic service

[33] The Appellant submits that the Respondent’s program includes a live-in mentor and a Youth Transitional Support Worker, neither of whom provide therapeutic support. She further submits that the Respondent did not offer her any therapeutic, rehabilitative or other similar supports.

[34] The Intake package lists the following services provided as part of the program:

(a) providing a sober and safe environment in which to practice life-skills;

(b) live-in mentorship;

(c) a Youth Transition Worker;

(d) assistance resolving interpersonal disputes and developing relationships;

(e) developing life-skills including budgeting and household chores; and

(f) supervision of the participant’s day-plan and other program requirements.

[35] The Intake package further provides that the services received by each participant are individualized and determined based on the Respondent’s assessment of their needs and goals set by the participants.

[36] The LTB found that the intake application reviewed with the Appellant at the time of the application and signed by her indicates that a wide range of services are provided.

[37] In concluding that the Respondent’s program was primarily rehabilitative, the LTB relied upon two prior decisions of the LTB (TST-01778(“TST”) and SOL-45003-14, 2014 52441 (ONLTB) (“SOL”)) which held that “rehabilitative services” includes providing health care or “conditions of support” and services need not be specifically “rehabilitative” but can include other supports, for example supportive counselling and case management.

[38] The LTB found that the terms of accommodation offered by the Respondent were essentially the same as outlined in SOL where the primary purpose of the transitional housing program was found to be rehabilitative in that “it aims to provide women with the capacity to live independently in sustainable housing” and “the goal of the program is not to house women but ‘to transition women into independent, sustainable housing’.

[39] The Appellant submits that the proper definition of “rehabilitative” requires a restoration of prior capacity and that the LTB did not consider the fact that this case concerned youth who had not yet developed capacity and was therefore distinguishable from TST and SOL which concerned adults. The Appellant submits that the LTB erred in finding that the Respondent’s services were essentially the same as the services provided in SOL and points out that the intake package in this case explicitly states that the program does not provide counselling.

[40] The Respondent points out that its Service Options webpage lists its program’s services which include a counselling clinic, counselling services, tele-psychiatry, education support, music scholarship and a youth co-op housing program.

[41] The LTB adopted the reasoning in SOL that it should not be a determinative part of the test whether or not a participant in the program receives such services.

[42] The Appellant submits that the LTB erred in relying on outdated jurisprudence which was decided before the RTA was amended to include s. 5.1, in interpreting s. 5(k).

[43] The words “rehabilitative or therapeutic services” are not defined in the RTA. Had it been the intention in adding the s. 5.1 exception to narrow their prior interpretation, a new definition could have been included in the amendment.

[44] The decision on appeal is the first reported decision of the LTB to address the application of s. 5.1 or its impact on s. 5(k). The two decisions relied upon by the LTB in this case comprise the most recent jurisprudence regarding the application of s. 5(k) to short term transitional housing programs with a rehabilitative or therapeutic purpose. In interpreting the scope of s. 5(k), the LTB was entitled to consider prior decisions based on similar facts and to determine whether they apply to the present case. I find no error in the LTB’s reliance upon this caselaw.

[45] I do not agree with the Appellant that in the decisions it relied upon and in this case, the LTB adopted a “dictionary definition of ‘rehabilitative’ without consideration of context or interpretive principles.” The LTB concluded that the Respondent’s housing program, which provided services that restored a capacity to transition into independent sustainable housing, met the meaning of “rehabilitative” in the specific context of s. 5(k). I find no error in law in the LTB’s interpretation of the term “rehabilitative”.

[46] The LTB found that the Respondent’s “programs, various supports, supervision, training, guidance, counselling, and education amount to therapeutic and rehabilitative treatment in a non-medical sense with a view to transition occupants to sustainable housing. It found that the documentation provided by the Respondent, including the intake agreement signed by the Appellant, confirms the parties’ agreement that the occupancy is intended for therapeutic and rehabilitative treatment.

[47] Whether the specifics of the Respondent’s program meet the requirements of “therapeutic and rehabilitative” in s. 5(k) is a factual issue and is therefore outside the jurisdiction of this court.

[48] During this hearing, it was raised whether the separate listing in s. 5.1(2) (ii) of:

A. rehabilitative services,

B. therapeutic services,

C. services intended to support employment, or

D. services intended to support life skills development.

indicated an intention to narrow of the interpretation of “rehabilitative and therapeutic services” under s. 5(k) so as to no longer include employment services (C.) or life skills (D), which caselaw had held to be within the meaning of “rehabilitative” under s. 5(k) prior to the amendment. I have concluded that no such intention can be discerned from s. 5.1(2)(ii). Rather, it is more likely that this was to clarify what services qualified for the exemption under s. 5.1 in light of “conflicting and unclear decisions” of the meaning of “rehabilitative and therapeutic services” referred to when the enactment of s. 5.1 was being considered. In view of the legislature’s inclusion of s. 5.1(5), which preserved the applicability of existing exemptions, clearer language would be required if the intention were to change the definition of a previously existing provision.

Living accommodation intended to be provided for no more than one-year

[49] The Appellant submits that the “no more than one-year” requirement in s. 5(k) is not met because the Respondent’s intake package provides that “extensions may be negotiated if appropriate”. The Appellant further relies on the support worker’s recorded note of their conversation during intake where the intake worker noted that the Appellant was advised that the program is a year and that there are at times a few spots for extensions but it all depends on how the youth does in the program and if that was an option, then they would approach her at that time to discuss this. The Appellant submits that the potential to extend the program beyond one year is incompatible with the LTB’s finding that her accommodation was intended to be for no more than one year.

[50] The LTB considered the intake package signed by the Appellant which states that the program sets a move-out date at the time of intake and indicates that the placement is intended to last “up to” one year. The LTB found that the residence list indicates a move out date of December 7, 2020 and that the Appellant moved into the unit on December 8, 2019. The LTB also was aware that in exceptional circumstances the agreement may be extended but that it is not automatic.

[51] The Appellant raises that the residence list was part of the Respondent’s internal records and not part of the documents seen or initialed by her.

[52] The LTB found that the documentation provided by the Respondent including the intake agreement to which the Appellant affixed her signature confirms the parties’ agreement that the occupancy is intended to last less than one year, and has a specified duration. S. 5(k)(ii) specifies that the accommodation is intended to be provided for no more than a one-year period, not that it must be provided for no more than a one-year period. The fact that the program term is sometimes extended beyond one year does not change the fact that the intention is for the program duration to be less than one year. The LTB’s finding in this regard is consistent with prior caselaw which found that where the intention is for a tenancy to end on a specified date, but that date is exceeded, the s. 5(k) test can still be satisfied. There is no error of law in this finding.

Were the LTB’s Reasons inadequate?

[53] The Appellant submits that the LTB’s reasons are inadequate. In particular, she submits that the reasons rely exclusively on old jurisprudence without explaining the basis for doing so, they appear to rely almost exclusively on erroneous characterization of the evidence and fail to consider or address the Appellant’s arguments, particularly with respect to the intent and purpose behind the enactment of s. 5.1.

[54] In Tarko et al v. Metropolitan Condominium Corporation 626 et al, 2015 ONSC 982, Marrocco A.C.J.S.C. dealt with the issue of adequacy of reasons. In that decision he cited R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, where at para. 42, the Supreme Court quotes with approval the following statement by Major J. in R. v. R.(D.), 1996 207 (SCC), [1996] 2 S.C.R. 291: “[W]here the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge's reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere.”

[55] In addition, it is trite law that the reasons of a decision maker must be capable of meaningful appellate review (see Sheppard at para. 46).

[56] In this case the reasons do demonstrate that the LTB considered the important issues in the case. It does this in the following manner:

[1] The reasons state that there are two exemptions that might apply in this case and that there is clearly some overlap.

[2] The reasons correctly identify the Appellant’s argument that the only coherent reading of the RTA necessitates a finding that this is a tenancy and not exempt from the provisions of the RTA because:

i. the Respondent did not use an occupancy agreement to protect vulnerable occupants, or tenants;

ii. because the accommodation is to provide stable housing rather than rehabilitative services; and

iii. there was no intention that the living accommodation would be provided for a maximum of one year.

The LTB identified that the Appellant therefore argued that it did not meet the s. 5(k) requirements.

[3] The LTB turned its mind to both provisions of the RTA, having found that a living accommodation that is not exempt under s. 5.1(1) to (3) may still be considered exempt under s. 5(k), or the reverse.

[4] As noted above, the LTB found in paragraph 9 of its decision that s. 5.1 is broader than s. 5(k) and encompasses more housing situations. It found that s. 5.1 does not replace or eliminate s. 5(k) because of the legislative intent expressed in s. 5.1(5) that specifically confirms that nothing included in s. 5.1 “limits the availability of other exemptions” in the RTA. It found that s. 5.1 does not apply to the Appellant’s occupancy but to other broader and longer-term occupancies.

[5] The LTB states that it reviewed the Hansard transcripts and policy argument presented during the hearing.

[6] The LTB considered prior decisions based on similar facts and determined whether they apply to the present case. In light of the stated legislative intent and in the absence of a new and more limited definition of “rehabilitative and therapeutic services” in s. 5(k), I concluded it was entitled to do so.

[7] Having found that the Respondent met the requirements of s. 5(k), the LTB correctly concluded that the RTA does not apply to this occupancy.

[58] For these reasons I find that the LTB’s reasons were capable of meaningful appellate review and were not inadequate within the meaning of the caselaw.

Conclusion

[59] In the result, I find no extricable error of law and I find the LTB’s preliminary finding to be correct. The appeal is dismissed.

[60] The LTB heard no evidence with respect to remedy because of the constraints of time. Had the appeal been allowed, the only appropriate remedy would be to remit this matter to the LTB to determine the issue of damages and of a fine.

[61] No costs are sought. Accordingly, no costs are ordered.

Backhouse J.

I agree _______________________________

Kristjanson J.

I agree _______________________________

O’Brien J.

Released: December 14, 2020

CITATION: Smith v. Youthlink Youth Services, 2020 ONSC 7624

DIVISIONAL COURT FILE NO.: 238/20

DATE: 20201214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Kristjanson, O’Brien JJ.

BETWEEN:

Lydian Smith

Appellant

– and –

Youthlink Youth Services

Respondent

-and –

Landlord and Tenant Board

Intervenor

REASONS FOR JUDGMENT

Backhouse J.

Released: December 14, 2020