REASONS FOR DECISION

C. BOSWELL J.

[1] The appellant’s role in an argument over a clogged sink earned her a termination notice from her landlord. A hearing at the Landlord and Tenant Board resulted in the termination of her tenancy and an order for her eviction. She appeals, arguing that the Board’s decision cannot stand in the face of a number of serious legal errors reflected in it.

[2] For the reasons that follow, I agree with the appellant and would allow the appeal.

OVERVIEW

[3] The appellant lives in an apartment complex operated by the respondent in Toronto with her disabled mother and her two young children, now ages 4 and 8.

[4] About two years ago a clogged sink was impeding her ability to make dinner for her family. The building superintendent attended at her unit to fix the sink. He brought a security guard with him.

[5] An argument arose between the appellant and the superintendent which prompted the superintendent and security guard to leave the unit. The appellant followed, along with her mother and a guest they had visiting them at the time, all yelling as they made their way down the hall. As the group reached the elevator, its doors opened revealing that the superintendent’s wife was inside. She acts as the assistant superintendent and was on her way to the appellant’s unit to see if her husband needed assistance.

[6] The argument appears to have at least partially moved inside the elevator. It remained heated. The appellant’s group were clearly the aggressors. Someone spit in the face of the superintendent. The superintendent’s wife took a tool from her husband’s hand and offered to go and unclog the appellant’s sink. The appellant grabbed the tool and made her way back to her unit. The Board found that she told the superintendent’s wife not to follow her, with the threat that she would “beat her” if she did. The tool was returned the next morning.

[7] About two months later, the respondent landlord served the appellant with two notices of termination citing two grounds for eviction. First, that the appellant or another occupant of the rental unit committed an illegal act or permitted another person to do so at the residential complex. The alleged illegal act was an assault, namely the spitting. Second, that an act of the appellant, another occupant of the rental unit or a person permitted in the residential complex by the appellant, seriously impaired the safety of another person. These grounds reflect the provisions of ss. 61 and 66 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).

[8] The respondent subsequently applied to the Board for an order terminating the appellant’s tenancy and evicting her, her mother and children from the unit. The application came on for a hearing before Board member Nancy Morris (the “Member”) on July 5, 2019. It was completed on September 11, 2019. By order dated October 17, 2019, the appellant’s tenancy was terminated effective November 30, 2019.

[9] The appellant sought an internal review of the Board’s decision. Her request was dismissed.

THE GROUNDS OF APPEAL

[10] The appellant asks this court to overturn the Board’s decision and dismiss the landlord’s application for termination, or alternatively send the matter back to the Board for a re-hearing. She advances the following grounds of appeal:

The Member erred in law by applying the wrong legal test under s. 61 of the RTA;
The Member violated the rules of natural justice by grounding her decision, in part, on factors not raised by the landlord and not argued at the hearing;
The Member erred in law by applying the wrong legal test under s. 66 of the RTA; and,
The Member erred in law by failing to take into account all of the relevant circumstances as she was mandated to do under s. 83 of the RTA when considering her discretion to grant relief from eviction.

[11] In a moment I will consider the argued grounds one by one. Before doing so, I will briefly address the issue of the standard of review to be applied on this appeal.

THE STANDARD OF REVIEW

[12] The Landlord and Tenant Board is a social justice tribunal established under the RTA. It provides dispute resolution of landlord and tenant matters under the RTA and has exclusive jurisdiction to determine all applications under that Act.

[13] The Board’s decisions are final and binding, subject to two limited exceptions:

(i) The Board’s authority to review its own decisions under s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22; and

(ii) A limited right of appeal to this court, on questions of law. See RTA, s. 210.

[14] Where the legislature has provided a statutory appeal mechanism, as it has in the RTA, appellate standards of review apply. See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 17.

[15] The controlling authority with respect to appellate standards of review is Housen v. Nikolaisen, 2002 SCC 33. It directs that on questions of law, the applicable standard is correctness.

[16] With those comments in mind, I will turn to an assessment of the grounds of appeal.

DISCUSSION

1. The Board applied the wrong legal test under [s. 61](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html) of the [RTA](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html)

The Impugned Ruling

[17] Section 61(1) of the RTA provides as follows:

61 (1) A landlord may give a tenant notice of termination of the tenancy if the tenant or another occupant of the rental unit commits an illegal act or carries on an illegal trade, business or occupation or permits a person to do so in the rental unit or the residential complex.

[18] The illegal act complained of by the landlord in its termination application was the spitting at the superintendent.

[19] The Member found that she was unable to determine who spit at the superintendent due to conflicting eyewitness accounts. But in her view, such a factual finding was not an impediment to concluding that the test under s. 61 had been made out. She said, specifically, at para. 27 of her reasons:

It is immaterial who spat in [the superintendent’s] face because, pursuant to subsection 61 (1) of the Residential Tenancies Act, 2006 (the 'Act'), a landlord may give a notice of termination of tenancy if the tenant or another occupant of the rental unit committed the illegal act or if they permitted a person to do so in the rental unit or the residential complex. Consequently, even if it was the Tenant's guest who spat in [the superintendent’s] face, the Landlord would be within its rights to give the Tenant a notice of termination of the tenancy, and the Landlord has met its burden of proving that it was the Tenant, an occupant or a guest who contravened subsection 61 (1) of the Act.

The Positions of the Parties

[20] The appellant’s counsel contends that the Member was wrong in law to hold that it is immaterial who spit in the superintendent’s face. More particularly, the Member erred by failing to apply the requirement in s. 61(1) that the tenant either committed the illegal act or permitted another person to do so (emphasis mine). Here, the Member engaged in no analysis of the issue of permission.

[21] The respondent’s counsel submits that the issues raised by the appellant are not issues of law, but issues of mixed fact and law which are not appealable under s. 210 of the RTA.

[22] In the alternative, he argues that the Member’s failure to specifically advert to the “permission” aspect of the test under s. 61(1) is not fatal. The Member is presumed to know the test and it is enough if the record, when viewed as a whole, supports her conclusions. Here, he says, the record is more than sufficient to do so.

Analysis

[23] In my view, the test under s. 61(1) is relatively straightforward. It requires the landlord to establish either that the tenant, or other occupant, committed an illegal act at the residential complex. In the alternative, that the tenant or other occupant permitted an invited guest to commit an illegal act.

[24] The act in issue is an assault. An assault is an intentional application of force, without consent and where the person applying the force knows that the person against whom force is applied is not consenting. Whoever spit in the face of the superintendent undoubtedly committed an assault.

[25] In this instance the Member was unable to conclude who spit at the superintendent. The upshot of that inability was to narrow the availability of s. 61(1) as a path to eviction. In particular, since the Member could not say that the appellant or her mother (the other occupant) committed an illegal act, the only other means of satisfying the test under s. 61(1) was for the Member to conclude that the appellant, or her mother, permitted another person to commit an illegal act on the premises.

[26] Permission, like consent, involves a state of mind. It is the voluntary agreement that something occur. It involves knowledge of what is going to happen and a voluntary agreement that it be done. A finding of permission did not inexorably flow from the mere fact of the appellant’s presence at the altercation. A finding of permission required at least some evidence upon which it could have been inferred that the appellant knew someone else was going to spit on the superintendent and that she voluntarily agreed that it be done. That evidence is absent in this record.

[27] The Member, in my view, clearly did not turn her mind to the element of permission. This is not a case where she simply failed to or chose not to advert to it. Her suggestion that it is immaterial who spat at the superintendent demonstrates that the Member misunderstood the permission element. She undoubtedly failed to analyse and apply it. This was an error of law, not a factual error or an error of mixed fact and law.

[28] In the result, the Member’s conclusions under s. 61(1) are tainted by error and cannot stand.

2. The Member did not offend the principles of natural justice

The Impugned Ruling

[29] As I have noted, the landlord’s eviction notice identified the spitting as the illegal act that purportedly justified eviction under s. 61(1) of the RTA.

[30] The Member, however, said the following, at para. 29 of her reasons:

It was also undisputed that the Tenant grabbed one of [the superintendent’s] tools and ran back into her rental unit and slammed the door. It was [the assistant superintendent’s] testimony that the Tenant also uttered a threat as she did this. The Landlord did not argue this, but these actions, as well, could constitute the illegal acts of theft and uttering threats.

The Positions of the Parties

[31] The appellant’s counsel asserts that the Member concluded that the appellant committed the illegal acts of theft and uttering threats and used those acts to ground her determination about the applicability of s. 61(1).

[32] Counsel points out that the appellant had no prior notice that these additional two illegal acts were in play and no opportunity make submissions about them. In the result, she says, the appellant was denied natural justice.

[33] The respondent’s counsel argues that the Member did not actually rely on the illegal acts of theft or uttering threats in the course of her s. 61(1) analysis. He regards the references at para. 29 to be in the nature of musings. They provide context and are simply part of the overall narrative.

Analysis

[34] It is not entirely clear to me why the Member mentioned the possibility that the appellant had committed the offences of theft and uttering threats. That said, I am satisfied that she did not rely on these potential offences to reach the conclusions she did under s. 61(1).

[35] At any rate, it is unnecessary to determine whether the principles of natural justice were adhered to in relation to the s. 61(1) analysis because I have already determined that the Member’s analysis under that section was flawed and cannot stand.

3. The Member applied the wrong test under s. 66(1)

The Impugned Ruling

[36] Section 66(1) of the RTA provides as follows:

66 (1) A landlord may give a tenant notice of termination of the tenancy if,

(a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and

(b) the act or omission occurs in the residential complex.

[37] The Member observed that all of the landlord’s witnesses (the superintendent, his wife and the security guard) testified that they were frightened by the altercation with the appellant because the appellant has a reputation for violent altercations, the argument became quite heated and they did not know how far she might take things. She went on to conclude, at paragraph 32 of her reasons,

Given that an illegal act was committed, and given that the Tenant's behaviour has a tendency to get out of control to the point that it is unclear how far she will take it, I find that it has caused, or could in future cause a serious impairment to safety.

The Positions of the Parties

[38] The submissions advanced by the appellant’s counsel are essentially twofold. First, that standing on its own, the Member’s s. 66(1) ruling demonstrates a flawed understanding of the requirements of that section. Second, that the Member improperly imported her finding of an illegal act into the s. 66(1) analysis. Her decision under s. 66(1) became inextricably bound up with her flawed reasoning under s. 61(1) such that it cannot be allowed to stand.

[39] The appellant’s counsel maintains that s. 66(1) requires a finding of conduct that has seriously impaired the safety of another or conduct that presents a real risk of future impairment. In this instance the Member misunderstood the contours of a “serious risk” and in doing so errantly concluded that a relatively short oral argument could amount to such a risk. Moreover, her conclusion that the appellant posed a future risk was based on speculation. Grounding a finding in speculation is an error in law.

[40] The respondent’s counsel urges the court to conclude that what occurred in this case was a very serious act that impaired the safety of the superintendent, his wife and the security guard. No speculation was required or engaged in. There was unprovoked conduct on the part of the appellant, her mother and their guest that amounted to an attack, during which someone spit on the superintendent. The Member, in counsel’s submission, got it right.

[41] In the submissions of the respondent’s counsel, not only did the Member properly consider and apply the statutory provision, but any quarrel the appellant has with the Member’s conclusions engages a mixed question of fact and law and is not appealable by virtue of s. 210 of the RTA.

Analysis

[42] The legal standard for eviction required by s. 66(1) is settled. The landlord is required to establish, on a balance of probabilities, that the conduct of the tenant, another occupant of the unit or any guest invited onto the property by the tenant, seriously impaired another person’s safety. “Impairment” includes both actual impairment and a real risk of impairment. See Furr v. Courtland Mews Cooperative Housing Inc., 2020 ONSC 1175 (Div. Ct.), at para. 17.

[43] The language of s. 66(1) clearly permits the Board to consider not only the tenant’s conduct, but also that of any other occupant of the unit and any invited guest. In this case, however, the Member’s analysis under s. 66(1) involved only the conduct of the appellant tenant. In other words, she reached no conclusions about whether the conduct of the appellant’s mother or their guest might be sufficient to meet the test under s. 66(1).

[44] With respect to the appellant’s conduct, the Member concluded that given the presence of an illegal act and the appellant’s tendency to lose control, she has caused a serious impairment to safety or could do so in the future.

[45] This conclusion is problematic on at least two fundamental levels.

[46] First, it carries over the flawed analysis under s. 61(1). The appellant was not found to have participated in any illegal conduct.

[47] Second, a propensity on the part of the appellant to “lose control” was not a reasonable inference on this evidentiary record. The superintendent and his wife each testified that they had witnessed the appellant argue with others before, on limited occasions. But the circumstances of the arguments were not fleshed out. What little was said about them in evidence could not reasonably allow for any reliable predictions about future dangerousness. At best one could only speculate about the possibility of future outbursts. Grounding a ruling on speculation is an error in law.

[48] Distinguishing questions of law from questions of mixed fact and law can often be difficult. The Supreme Court recognized this difficulty in their seminal decision in Housen v. Nikolaisen, as above, at paras. 26 et seq. At para. 36 of the decision, they instructed that questions of mixed fact and law involve the application of a legal standard to a set of facts. But where the decision-maker applies an incorrect standard, fails to consider a required element of a legal test or makes a similar error in principle, then the error is properly characterized as an error of law.

[49] The respondent’s counsel urged the court to conclude that the appellant’s complaints are really about the Member’s application of the legal standards engaged by ss. 61(1) and 66(1) to the facts of this case. I disagree. The Member, in my view, failed to consider a required element of the test under s. 61(1). She carried that error over into her s. 66(1) analysis and compounded it by engaging in speculation. These are legal errors.

[50] The eviction cannot stand under either section.

4. The Member failed to consider all of the circumstances required by the s. 83 analysis

[51] In light of my conclusion that the appellant’s eviction is not justified under either s. 61(1) or s. 66(1), it is not strictly necessary to consider the fourth ground of appeal, which relates to the exercise of the Board’s discretion to provide relief from eviction. In the circumstances, I will address this ground only briefly.

[52] Section 83 mandates the Board to consider all of the prevailing circumstances before ordering an eviction, having regard to whether it would be unfair to refuse to evict.

[53] Section 83 reflects the remedial nature of the legislation and its tenant protection focus. See Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44 at para. 19.

[54] While the granting of relief under s. 83 is discretionary, the consideration of all of the prevailing circumstances is not.

[55] In my view, the Member did not take into account all of the relevant circumstances she was mandated to do. While it is not necessary for Board members to expressly articulate each and every factor they have considered, in this instance, I find that the Member got at least two very significant factors wrong, which means, by extension, that she failed to consider or account for the actual prevailing circumstances.

[56] In particular, she found that the appellant’s actions were illegal and not merely bad manners or anti-social behaviour. I need not comment any further about the finding of illegality. She also found that the appellant had not displayed contrition or remorse. The record reflects otherwise. The appellant’s evidence at the hearing was, in fact, replete with apologies and expressions of regret for her role in the incident. These expressions are important factors to consider when assessing the risk that her continued tenancy may pose to others living or working in the residential complex.

[57] Eviction is a remedy with obviously serious consequences for the tenant. This is particularly so in a very difficult rental market like that in Toronto, where available, affordable rental units are often few and far between, especially for low income families like that of the tenant.

[58] Section 83 plays an important role in the framework of the legislation and in mitigating the harsh realities of an eviction. It can only properly function in its intended role if the Board takes into account all relevant circumstances, as it is mandated to do. A failure to do so is an error in law.

CONCLUSIONS

[59] For the foregoing reasons, I would allow the appeal and set aside the eviction order.

[60] Section 210(4) of the RTA spells out the court’s powers on appeal:

210(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Board with the opinion of the Divisional Court.

[61] In my view, the proper disposition is to rescind the Board’s order and dismiss the landlord’s applications, rather than remitting the matter back to the Board. I say this for two principal reasons:

(i) The evidentiary record does not, in my view, provide sufficient support to order termination of the tenancy under either s. 61(1) or 66(1) of the RTA. It is unlikely that any future record will provide stronger support; and,

(ii) Two years have now elapsed since the incident in question. The appellant has lived in this building for ten years now. There is no evidence of any further difficulties occurring subsequent to the altercation now before the court. It would not be in the interests of justice to prolong these proceedings and to leave the question of the appellant’s tenancy in limbo.

[62] In accordance with the parties’ agreement, there will be no order as to costs.

Boswell J.

I agree. _______________________________

Swinton J.

I agree. _______________________________

Pattillo J.

Released: February 12, 2021

CITATION: Musse v. 6965083 Canada Inc., 2021 ONSC 1085

DIVISIONAL COURT FILE NO.: 644/19

LANDLORD AND TENANT BOARD FILE: TNL-16685-19

DATE: 20210212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Pattillo and Boswell J.

BETWEEN:

HIBO MUSSE

Appellant

– and –

6965083 CANADA INC.

Respondent

REASONS FOR DECISION

C. Boswell J.

Date of Release: February 12, 2021

Musse v. 6965083 Canada Inc., 2021 ONSC 1085

Case Summary

REASONS FOR DECISION

OVERVIEW

THE GROUNDS OF APPEAL

THE STANDARD OF REVIEW

DISCUSSION

1. The Board applied the wrong legal test under [s. 61](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html) of the [RTA](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html)

The Impugned Ruling

The Positions of the Parties

Analysis

2. The Member did not offend the principles of natural justice

The Impugned Ruling

The Positions of the Parties

Analysis

3. The Member applied the wrong test under s. 66(1)

The Impugned Ruling

The Positions of the Parties

Analysis

4. The Member failed to consider all of the circumstances required by the s. 83 analysis

CONCLUSIONS

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 2