White et al. v. Upper Thames River Conservation Authority

[Indexed as: White v. Upper Thames River Conservation Authority]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Sachs, Abrams and O'Bonsawin JJ.

December 16, 2020

154 O.R. (3d) 133 | 2020 ONSC 7822

Case Summary

Landlord and tenant — Residential tenancies — Leases — 20-year lease permitting occupancy of rental units for nine months of the year and restricting access for three months — Parties renewing lease for additional ten years and including option to shift non-occupancy period — Landlord and Tenant Board ordering that tenants ought to have unrestricted access to units — Landlord's appeal allowed and order set aside — Board erred in equating limitation of access with substantial interference with reasonable enjoyment of unit — Tenants had voluntarily agreed to provision in lease restricting access — Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 22.

The applicants were the owners of permanent, non-mobile rental units located on a residential complex covered by a 20-year lease with the respondent. Each tenant under the lease was permitted occupancy from March 1 to November 30, with occupancy in January, February and December restricted to specified hours on weekends only. When the lease was extended for a further ten years, each tenant was granted an option to change the non-occupancy period to the months of January, February and March. The respondent was inconsistent in enforcing the terms of the lease with regard to occupancy. The applicants applied to the Landlord and Tenant Board for an order that the Residential Tenancies Act prevented the respondent from restricting access to the rental units. The Board concluded that the tenants should have unrestricted access to their rental units because the alternative would amount to a substantial interference with their reasonable enjoyment. The Board also determined that no remedy was necessary as the respondent had taken essentially no action to prohibit access. The respondent appealed.

Held, the appeal should be allowed.

The Board erred in determining that the Act prohibited the parties to the lease from mutually agreeing to include a provision limiting the tenants' right to occupy the rental units during agreed-upon periods of time. The Board relied on s. 22 of the Act, which prevented a landlord from substantially interfering with a tenant's [page134] reasonable enjoyment of a rental unit. A reading of the ordinary sense of s. 22 did not lead to a determination that the respondent substantially interfered with the reasonable enjoyment of the units when the tenants voluntarily agreed to the provision in the lease. To find that any limitation to access to a rental unit during certain time periods equated to substantial interference with reasonable enjoyment would be to unnecessarily limit the ability of landlords and tenants to enter into flexible arrangements regarding leased premises. It was unnecessary to send the matter back to the Board for redetermination as the result was inevitable. The Board's order regarding the tenants' right to access the premises was set aside.

Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65, 2019 SCC 65, 2020EXP-27, 441 D.L.R. (4th) 1, 59 Admin. L.R. (6th) 1, 69 Imm. L.R. (4th) 1, EYB 2019-335761, apld

Galey v. 1927510 Ontario Inc., [2018] O.J. No. 7310, 2018 ONSC 1073 (Div. Ct.); Matthews v. Algoma Timberlakes Corp. (2010), 102 O.R. (3d) 590, [2010] O.J. No. 2710, 2010 ONCA 468, 321 D.L.R. (4th) 282, 266 O.A.C. 261, 94 R.P.R. (4th) 43, 191 A.C.W.S. (3d) 270, 2010 OREG para. 58,806, distd

Other cases referred to

Bell Canada v. Canada (Attorney General), [2019] S.C.J. No. 66, 2019 SCC 66, 2020EXP-9, 441 D.L.R. (4th) 155, 60 Admin. L.R. (6th) 1, 171 C.P.R. (4th) 215; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991, 2002 DFQ para. 10,056; Pietens v. Lighthouse Cove Trailer Park, [2006] O.R.H.T.D. No. 72; Putnam v. Grand River Conservation Authority, [2005] O.R.H.T.D. No. 12; SWT-98147-17 (Re), 2018 88444 (Ont. L.T.B.); TSL-71705-16-IN-AM (Re), 2016 79649 (Ont. L.T.B.)

Statutes referred to

Residential Tenancies Act, 2006, S.O. 2006, c. 17 [as am.], ss. 1, 2 [as am.], (1) [as am.], 3(1) [as am.], 4 [as am.], 5 [as am.], 9, 14, 22, 29(1)3., Part V.1 [as am.], ss. 202 [as am.], 210(1)

APPEAL from an order of the Landlord and Tenant Board.

Vedran Simkic, for applicants.

Ian Wright, for respondent.

The judgment of the court was delivered by

O'BONSAWIN J.: —

Introduction

[1] The Applicant, Upper Thames River Conservation Authority ("Upper Thames"), appeals the Order dated June 5, 2018 of the Landlord and Tenant Board (the "Board"), SWT-98147-17 (Re), 2018 88444 (Ont. L.T.B.) (the "Order") finding that the Tenants were to have unrestricted access to their rental units. The Board held that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "Act") applied to the rental units in question, but [page135] that a clause in the Lease between the parties that limited the Tenants' access to the units during the winter months was prohibited by the Act and void.

[2] For the reasons that follow I would allow the appeal and set aside the Order, with the result that the Tenants' right to access the rental units is governed by the Lease between the parties.

Background

[3] The parties entered into a Lease and Licence ("Lease") on January 1, 1983 for a period of 20 years. The Tenants are owners of permanent, non-mobile homes located on a residential complex ("rental units") covered by the Lease. The rents are paid annually. The Lease governs a 12-month period and includes the following restrictions at para. 3:

The lease and license permits the Tenant, the Tenant's family and guests to occupy the dwelling house and other improvements constructed on the lot only at the following times:

(a) From the first day of March to the 30th day of November in each and every year during the term hereof;

(b) During the months of January, February and December, occupancy shall be weekends only commencing on Friday at 1:00 p.m. and concluding on Sunday at 9:00 p.m. Where Friday or Monday is a public holiday, such shall be included in the weekend with the times so enlarged.

Occupancy of the dwelling house other than at the times as herein provided, shall be a violation of the terms of this lease and licence and the lease and license shall at the option of the Authority become forfeited and such option may be exercised by delivery of notice of termination hereunder.

[4] Subsequently, the parties added an Appendix to the Lease effective January 1, 1994 that dealt with the rental, fees and the water system.

[5] On December 4, 2003, the parties added a second Appendix to the Lease that had the effect of extending the terms of the Lease for the years 2004 to 2013 inclusively. The Appendix added paragraph B that reads as follows:

B. As part of the consideration for the rental and fees for the period 2004 to 2013 inclusive, the Authority and tenants agreed as follows:

1. The Authority will provide an annual option for individual cottagers to change the (3) month non-occupancy period from January/February/December to January/February/March. The tenant must submit this request in writing, prior to November 1st each year, otherwise the January/February/ December term outlined in the lease will apply.

2. The Authority will extend the existing weekend departure time during the (3) month non-occupancy period from Sunday night at [page136] 9:00 p.m. to Monday morning at 9:00 a.m. Occupancy of the dwelling other than at the times provided, is a violation of the terms of this lease and will result in delivery of Notice of Lease Termination.

[Emphasis in Original]

[6] Upper Thames has been inconsistent in enforcing the terms of the Lease with regards to occupancy. At times, Upper Thames sent a representative to the main gate to advise the Tenants that occupation should not take place during the restricted time but took no further action to prohibit occupation. The matter came to a head during the renegotiations of the terms of the new Lease.

[7] In their two Applications to the Board, the Tenants sought the following Orders:

(a) in the first application (Board Form A I), a finding that the Act applies to the rental units; and

(b) in the second application (Board Form T2), an Order preventing Upper Thames from restricting the Tenants' access to the rental units or their personal occupation of their rental units, at any time or days for 365 days per year.

[8] At the initial hearing before the Board, there was no dispute regarding the application of the Act to the rental units. However, in Upper Thames' subsequent written submissions, it stated that it did not consider the Act applicable and consequently the Board ruled on this issue. On the appeal before us, Upper Thames conceded that the Act did apply. Thus, the only issue before us was where the Board erred in law in finding that the Act prohibited the provision in Lease that limited the Tenants' access to their rental units.

Decision of the Board

[9] The Board concluded that the Act applied to the rental units in this case because (a) there was no likelihood of Crown ownership now or in the near future, and (b) there was much less of a barrier to the occupation and access of the Tenants' rental units in this case than those in Galey v. 1927510 Ontario Inc., [2018] O.J. No. 7310, 2018 ONSC 1073 (Div. Ct.), where the Act was found to apply.

[10] In addition, the Board found that if the Act applied, it followed "that the Tenants ought to have unrestricted access to the rental units. Restricting their access, in my view, would amount to substantial interference with the reasonable enjoyment of their rental units. However, having so found, I note that the Landlord essentially took no action to prohibit access and [page137] so no remedy is necessary for substantial interference to the date of this hearing" (at para. 13).

Issues on the Appeal

[11] Upper Thames submits that the Board erred in law:

(a) by failing to address meaningfully or at all that the Act does not regulate the ability of landlords and tenants to agree to such terms that they deem appropriate in their Lease;

(b) by failing to address meaningfully or at all that the Act neither expressly nor impliedly limits, restricts or prohibits the parties to a tenancy agreement from expressly agreeing that the Tenants will not occupy the rental units during the agreed-upon periods throughout the term of the Lease;

(c) by determining that s. 22 of the Act prohibits any interference with the reasonable enjoyment of a rental units which is not caused solely by Upper Thames;

(d) by determining that s. 22 of the Act prohibits the parties to a Lease from mutually agreeing to include a provision limiting the Tenants' right to occupy the rental units during certain agreed-upon periods of time during the term;

(e) by equating a clause in the Lease mutually agreed upon by the parties thereto, which limits the Tenants' right to occupy the rental units during certain agreed-upon periods of time during the term, to substantial interference by Upper Thames with the reasonable enjoyment of the rental units;

(f) by failing to determine that a clause in a lease mutually agreed upon by the parties thereto which limits the Tenants' right to occupy the rental units during certain agreed-upon periods of time during the term is not inconsistent with s. 22 of the Act;

(g) by failing to address in the Order the issue placed before it by the parties, which related to the Tenants' "occupancy" of Upper Thames' rental units during certain periods during the year, rather than their "access" to those rental units during the same periods;

(h) by equating the ability of the Tenants to "access" their rental units during certain agreed-upon periods during the year with their ability to "occupy" those rental units during those agreed-upon periods;

(i) by failing to define or differentiate between the terms "access" and "occupancy" for the purposes of the Board's decision. [page138]

[12] The last three issues raise a point that was not raised before the Board either before or after it made its Order. It was Upper Thames' position before us that the Board erred when it failed to differentiate between the Tenants having unrestricted access to their rental units, which is not prohibited under the Lease, and the Tenants having an unrestricted right to occupy their rental units. Therefore, when the Board made an Order that the Tenants were to have unrestricted access to their rental units, this did not mean that they had a right to occupy their rental units.

[13] In our view, given the reasons of the Board, this argument is a disingenuous one. The Board's Order was clearly driven by its finding that the provision in the Lease between the parties restricting access or occupancy was prohibited by the Act and void. Given this, there would be no basis for finding that the Board intended to make a distinction between occupancy and access. If the provisions in the Lease are void, the Tenants' right to both is unrestricted. Further, if Upper Thames was taking a different position as to the meaning of the Board's Order, it should have raised this matter with the Board as a part of settling the terms of the Order.

[14] The other issues Upper Thames raised essentially boil down to one question -- Did the Board err in determining that the Act prohibits the parties to a lease from mutually agreeing to include a provision limiting the Tenants' right occupy the rental units during certain agreed-upon periods of time during the term of the lease?

What is the standard of review?

[15] At the hearing, the parties agreed, and submissions were made on the basis that the standard of review was correctness.

[16] The Supreme Court recently issued three decisions on the law applicable to the review of administrative decisions: Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65, 2019 SCC 65, 59 Admin. L.R. (6th) 1, and its companion case Bell Canada v. Canada (Attorney General), [2019] S.C.J. No. 66, 2019 SCC 66, 441 D.L.R. (4th) 155.

[17] The revised standard of review analysis now begins with a presumption that reasonableness is the applicable standard in all cases. There are two instances where the reasonableness standard may not apply: first, where the legislature has indicated that it intends a different standard to apply and second, where the rule of law requires that the standard of correctness be applied: see Vavilov, at paras. 34-35 and Vavilov, at para. 53, respectively. The legislature's creation of a statutory right of [page139] appeal is an indication that appellate standards of review, pursuant to Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, are to apply to those appeals: see Vavilov, at para. 37. More specifically, the Supreme Court of Canada stated at para. 37:

It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.

[18] As per s. 210(1) of the Act"[a]ny person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law" (emphasis added). Since the Act stipulates that this court can only review an appeal on a question of law, the standard of review is correctness. Consequently, I agree with the submissions of the parties that correctness is the standard that applies in this matter.

Did the Board err in determining that the [Act](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html) prohibits the parties to a lease from mutually agreeing to include a provision limiting the Tenants' right to occupy the rental units during certain agreed-upon periods of time during the term of the Lease?

Positions of the parties

[19] Upper Thames argues that the Act incorporates the common law doctrine of quiet enjoyment "with all the uncertainties which follow": see TSL-71705-16-IN-AM (Re), 2016 79649 (Ont. L.T.B.).

[20] Upper Thames submits that in order for there to be a substantial interference with a tenant's right of quiet and reasonable enjoyment of a rental unit, the landlord must have engaged in some conduct which interferes with the tenant's right to quietly and reasonably enjoy the rental unit. As such, quiet and [page140] reasonable enjoyment of a rental unit is not interfered with when the tenant's enjoyment is disrupted, not by the landlord's conduct, but, instead, by a consensual arrangement or act that was agreed to by a landlord and tenant and recorded in a tenancy agreement. In this matter, the Board erred in concluding that the agreement of the parties to a restricted right of the Tenants to occupy their rental units for only a part of the year, which was agreed to voluntarily, constitutes a substantial interference with the reasonable enjoyment of the rental units as per s. 22 of the Act.

[21] For their part, the Tenants submit that, since the Board concluded that they should have unrestricted access to their rental units because the alternative would amount to a substantial interference with their reasonable enjoyment of them, and did so while alive to the interplay between the Lease and s. 22 of the Act to the extent that the Lease restricts the Tenants' access to their rental units, the Lease is void since the Act supersedes any contractual provisions.

[22] It is also the Tenants' position that two of the cases relied on by Upper Thames, namely, Putnam v. Grand River Conservation Authority, [2005] O.R.H.T.D. No. 12 and Pietens v. Lighthouse Cove Trailer Park, [2006] O.R.H.T.D. No. 72, are not binding on this court because they are Board decisions and not curial decisions. With regards to these two cases and Matthews v. Algoma Timberlakes Corp. (2010), 102 O.R. (3d) 590, [2010] O.J. No. 2710, 2010 ONCA 468, they are distinguishable from this matter because they do not address the issue of whether restricting access to rental units constitutes a substantial interference with a tenant's right of enjoyment.

The relevant provisions of the [Act](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html)

[23] The purposes of the Act, as described in s. 1, 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".

[24] Section 3(1) of the Act notes that the 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".

[25] According to s. 9 of the Act, the landlord or tenant can apply to the Board for an order determining (a) whether this Act or any provision of it applies to a particular rental unit or residential complex; and (b) any other prescribed matter. [page141]

[26] According to s. 29(1)3. of the Act, a tenant of a rental unit may apply to the Board for an order determining whether the landlord has substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the tenant or a member of his or her household.

[27] Section 22 of the Act deals with the interference with reasonable enjoyment by the landlord. More particularly, s. 22 states:

22. A landlord shall not at any time during a tenant's occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

[28] According to s. 4 of the Act, should a provision in a tenancy agreement be found to be inconsistent with the Act or the regulations, the provision is void.

[29] Lastly, with regards to particular relevant sections of the Act, s. 202 deals with findings of the Board and notes that the Board must "ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so, (a) may disregard the outward form of a transaction or the separate corporate existence of participants; and (b) may have regard to the pattern of activities relating to the residential complex or the rental unit".

Analysis

[30] Section 22 of the Act is at the heart of this appeal. The Board relied on this section to provide the Tenants with year-long access to their rental units. As a starting point, it is necessary to review the modern rule of statutory interpretation. As noted in Matthews, at para. 22, the rule requires that,

. . . "the words of an Act . . . 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 Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), at p. 87. Given the remedial nature of the Act, its provisions must be interpreted liberally to ensure the realization of its objectives. See Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1, [2006] 1 S.C.R. 3, at para. 16.

[31] I recognize that the Act is remedial legislation, its provisions must be read broadly to ensure that residential tenants are protected in accordance with the purposes of the Act.

[32] In Matthews, the Applicants leased land from the respondent's predecessor and erected cottages which they used as year-round secondary residences. When the respondent required the [page142] land, it sent eviction notices to some lessees and gave notices of significant rent increases to others. The respondent also purported to replace the leases with licences, which gave it an unfettered discretion as to whether to renew the licence upon its annual expiration. The Applicants brought an application for a determination that the Act applied to their land lease community. The Court of Appeal concluded that the Act applied.

[33] Upper Thames relies on Matthews to support its argument that it is not inconsistent for the Act to apply to a property for which there exists a lease in which the tenant has agreed with the landlord to limit occupancy of the rental property during certain times of the year. The main distinguishing feature between Matthews and this case is that, in the latter, the tenants used their rental units as secondary residences and, in this matter, there is evidence that some Tenants use their rental units as their primary residences. The Court of Appeal concluded that there is no difference between a rental unit described as cottages in that case and a "recreational" rental apartment. More specifically, the court stated [at para. 37]:

Accordingly, in my view, the term "residential" in the Act refers to the residential use of the premises and the Act does not provide a blanket exclusion for recreational properties. There being no dispute about the facts, I conclude that the lessees' sites are subject to the Act.

[34] In Galey v. 1927510 Ontario Inc., supra, the Divisional Court reviewed an appeal from the Board regarding the proper interpretation of ss. 2 (certain definitions) and 5 (exemptions) of the Act. As in Matthews, the tenants owned their cottages, had 20-year leases, and rent was paid annually. In 2016, the tenants advised the landlord that they intended to use their cottages year-round. The landlord advised them that the lease agreement and the zoning did not permit year-round use. In obiter, the Divisional Court stated that "[t]his was not correct" (para. 30). The court further noted [at para. 45]:

Thirdly, there is no basis in the plain wording of the legislation or the legal authorities to excluded tenants who use their cabins for recreation in a second home. The exemption applies to accommodations for "travelling or vacationing people" and that use is of "a seasonal or temporary period" (emphasis added). This is not the case with these Appellants who alone, have been coming to the very same cabins (their cabins) for over 20 years".

The Divisional Court granted the appeal and declared that the Act applied to the leases, the tenants resided in a land lease community within the meaning of s. 2(1) of the Act and the tenants had the right to upgrade their septic systems in accordance with the provisions of the lease. [page143]

[35] Matthews and Galey do not deal with the application and/or interpretation of s. 22 of the Act. Thus, they are not determinative of this appeal. However, they are cases where, on the facts, the tenants' right to access their rental premises was limited. This limited right to access their premises did not preclude their lease arrangements from being subject to the provisions of the Act.

[36] Upper Thames submits that there is no provision in the Act that explicitly provides for unfettered occupation of a rental unit. Upper Thames further argues that, by way of its Order, the Board effectively used s. 22 of the Act to amend the Lease by permitting access to the Tenants to the rental units, notwithstanding that the parties had agreed to restricting access during particular periods of time. I agree with Upper Thames that there are no provisions in the Act that explicitly deal with situations when parties agree to add a provision to a rental agreement permitting the restriction of accessing a rental unit (which in turn may affect the rent paid).

[37] Furthermore, the Act does contain sections that explicitly state what is not permitted in a lease. One example is s. 14, the Act, which explicitly provides that a "no pet" clause in a tenancy agreement is void. If there was a limitation regarding limiting access or occupation of a residential unit, the court would expect there to be a specific section in the Act dealing with this issue.

[38] The Tenants argue that they were not asking the Board to re-write the Lease as alleged by Upper Thames. Instead, they were asking the Board to enforce the Act. More specifically, the Tenants were asking the Board to confirm that they had unfettered access to their rental units. At this point, it is important to note that the Tenants entered voluntarily into the Lease. It can hardly be said that when a party voluntarily agrees to a provision of the residential agreement that is not specifically provided for by the Act, this leads to a determination that the provision is inconsistent with the Act.

[39] A reading of the ordinary sense of s. 22 of the Act does not lead to a determination that Upper Thames substantially interfered with the reasonable enjoyment of the Tenants' rental units when these Tenants voluntarily agreed to the provision in the Lease. To be clear, s. 22 of the Act cannot be read as to indicate that any limitation to access to a rental unit during certain periods of time, agreed upon by both landlord and tenant, equates to a substantial interference by the landlord with the reasonable enjoyment of the rental units. To find otherwise would be to unnecessarily limit the ability of landlords and tenants to enter into flexible arrangements regarding the leasing of premises. [page144] For example, if the Board's Order were to stand, a lease between the owner of a cottage and a tenant that contained a term providing that the owner is to continue to be able to occupy the cottage during certain limited times during the year (for example, a week at Christmas), would be an arrangement that would be prohibited under the Act. Given the stated purposes of the Act, there is no reason why this should be the case.

[40] For the reasons listed above, I find that the Board erred in determining that the Act prohibits the parties to the Lease from mutually agreeing to include a provision limiting the Tenants' right to occupy the rental units during certain agreed-upon periods of time during the term of the Lease.

Conclusion

[41] For these reasons, I would allow the appeal and set aside the Board's Order as it pertains to the Tenants' right to access the premises.

[42] The Supreme Court recognized in Vavilov that there are instances when remitting the matter back to the decision maker is unnecessary. More specifically, the Supreme Court stated at para. 142:

Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose . . . Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court's discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed.

[Citations omitted]

[43] This is not a case that I would send back to the Board for a redetermination as, in my view, the result is inevitable and it would be a waste of resources to do so.

Costs

[44] The parties have agreed that the successful party will receive costs from the other party in the amount of $9,000. Thus, the Tenants are ordered to pay Upper Thames its costs of this appeal, fixed in the amount of $9,000.

Appeal allowed.

End of Document