CITATION: Rivera v. Eleveld., 2023 ONSC 1684

DIVISIONAL COURT FILE NO.: DC-22-51-00

DATE: 20230313

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Andrea Rivera (Appellant/Tenant). v. Rick Eleveld (Respondent/Landlord)

BEFORE: Heeney, Stewart and Sutherland JJ.

HEARD: March 9, 2023, by ZOOM videoconference, at Brampton, Ontario

COUNSEL: Delaram Mehdizadeh Jafari, for the Appellant. Kevin M. Thompson for the Respondent. Linda Naidoo, for the Landlord and Tenant Board

APPEAL DECISION

Sutherland J.

[1] The appellant appeals the decision of Member Lang dated June 29, 2022, from the Ontario Landlord and Tenant Board (“LTB”), dismissing the appellant’s motion to void the eviction order under s. 74(11) of the Residential Tenancies Act, 2006[^1] (“the Act”).

[2] The Member found that the appellant’s interpretation of the section was incorrect, in that a new tenancy agreement is not created after the fixed term of a tenancy agreement between the appellant and respondent expires, and the tenancy automatically turns into a month-to-month tenancy agreement.

[3] For the reasons below, the appeal is dismissed.

Background

[4] On August 29, 2018, the LTB issued an eviction order terminating the appellant’s tenancy for non-payment of rent, effective October 15, 2018. On October 24, 2018, the appellant filed a motion to void the rent arrears-related August 2018 eviction order after it became enforceable, but before it was enforced, in accordance with s. 74(11) of the Act. The LTB issued an Order dated November 27, 2018, voiding the August 2018 eviction order.

[5] The appellant, despite paying in full in November 2018 to void the August 2018 eviction order, almost immediately stopped making rent payments again, which led to fresh eviction proceedings being commenced.

[6] On December 10, 2020, the LTB issued an order terminating the appellant’s tenancy for non-payment of rent, but it contained the standard LTB language empowering the appellant to void the order if certain payments were made by certain dates to the respondent or to the LTB. The appellant sought a review of this December 2020 eviction order. On February 22, 2021, the LTB issued a review order upholding the December 2020 eviction order.

[7] The appellant appealed the February 2021 review order to the Divisional Court, which dismissed the statutory appeal with costs to the respondent with reasons, holding that there had been no error in the review order issued February 22, 2022[^2].

[8] The appellant paid the amounts owing after receiving the Divisional Court decision, and subsequently moved ex parte to the LTB for an order voiding the 2020 eviction order pursuant to s. 74(11) of the Act. That motion was denied.

[9] The appellant sought a review of the rejection of her motion, which review was heard and reserved on March 25, 2022. The LTB dismissed the s. 74(11) motion pursuant to a written decision issued June 28, 2022, which found that the appellant was precluded from bringing the s. 74(11) motion because she had previously brought such a motion during her tenancy.

[10] The December 2020 eviction order remained in effect and was enforceable because the Request to Review was rejected. The appellant appealed the June 2022 Order and obtained a stay of the underlying December 2020 eviction order in the process.

Summary of the Decision under Review

[11] Member Lang’s order of the LTB dated June 28, 2022, noted the following:

• The appellant’s motion to void was filed pursuant to s. 74(11) of the Act.

• Section 74(12) of the Act provides: “Subsection (11) does not apply if the tenant has previously made a motion under that subsection during the period of the tenant’s tenancy agreement with the landlord.”

• The LTB noted that the appellant had previously brought a motion under s. 74(11) during the course of the current tenancy.

• The appellant submitted that the LTB should interpret s. 74(12) as referring not to the tenancy as a whole but as referring to each period in the tenancy. The appellant submitted that this is a month-to-month tenancy and so each month is a new tenancy that ends at the end of the month and then is replaced by a new tenancy the following month, and so on.

• The LTB found that the appellant’s proposed interpretation of s. 74(12) makes no sense. The LTB stated that it is clear from the plain wording of s. 74(12) that this last chance opportunity to avoid eviction by paying all outstanding rent and arrears is only available to a tenant one time in any tenancy; it does not recharge every month in the case of a month-to-month tenancy.

• The LTB stated that the legislature took the time and effort to insert this limit on a tenant’s opportunities to avoid eviction due to arrears. The interpretation suggested by the appellant would subvert the purpose of this provision so much that it would cease to have any effect. It cannot be a principle of statutory interpretation that legislation should be understood to be meaningless.

[12] Accordingly, the appellant’s motion to void was denied and the endorsement dated February 22, 2022 was cancelled.

Jurisdiction

[13] An appeal lies as of right to the Divisional Court from an Order of the LTB pursuant to s. 210(1) of the Act. Leave is not required. By s. 201 of the Act, the appeal is restricted to questions of law.

Standard of Review

[14] The standard of review is correctness on questions of law, and palpable and overriding error on questions of fact and mixed fact and law. As this appeal is limited to questions of law by s. 201 of the Act, the applicable standard of review on this appeal is correctness. There is no dispute between the parties that the standard of review is correctness.

Issues

[15] The issue for this Court to determine is: Was the Member’s interpretation of s. 74(12) correct?

Was the Interpretation Correct?

[16] I agree with the interpretation by the Member and find no error in law. I agree that the interpretation of statutes is by the modern approach as governed by the Supreme Court of Canada decisions of Rizzo & Rizzo Shoes Ltd (Re)[^3] and Bell ExpressVu Ltd. Partnership v. Rex[^4]. Further, the interpretation of legislation by a specialized Board like the LTB can enhance the Court’s understanding of the legislation’s context and purpose, given the Board’s specialized expertise and insights.[^5]

[17] I agree with the Members conclusion as described in paragraphs 7 and 8 of the Decision of the Review Order. The interpretation of the appellant “makes no sense.” I agree with the Member when he stated: “The interpretation suggested by the Tenant’s representative would subvert the purpose of this provision so much that it would cease to have any effect. It cannot be a principle of statutory interpretation that legislation should be understood to be meaningless.”[^6] In this regard, counsel for the Tenant conceded in argument that, on her interpretation, s. 74(12) could never apply to a month-to-month tenancy.

[18] As the Supreme Court stated in Rizzo, at paragraph 27:

It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).

[19] The interpretation suggested by the appellant would conflict with the purpose of the Act to provide protection for tenants from unlawful actions of the landlord and to balance the rights and interest of both the tenant and the landlord. The interpretation suggested by the appellant would be unreasonable, illogical and be an absurd result, considering the Act and its purposes.

[20] In addition to the findings of the Member, we make two other observations. First, the plain meaning of “renew” in the context of a lease is: “[t]o grant anew, esp. to grant or give (a lease, bill, etc) for a fresh period; to extend the period or application of; also, to take afresh, to obtain an extension of.”[^7] Renew in the context of a lease is not to terminate the lease and create a new lease agreement. It is to extend the lease agreement already in existence.

[21] Second, the Ontario Court of Appeal in Honsberger v. Grant Lake Forest Resources Ltd.[^8] addressed the effect of increases of rent by the landlord under the Act. In so doing, the Court reviewed the meaning of “during the term of their tenancy” under section 120(1) of the Act. The landlord argued that when the tenant entered into a new one-year tenancy agreement, the tenancy was severed, and thus the rental increases and the required notices provision under the Act were inapplicable and any new rent is lawful. The Court rejected this interpretation and in so doing concluded that a renewing tenant is not a new tenant, and the tenancy agreement continues. The wording “during the term of their tenancy” only refers to the amount that the landlord may charge and does not distract from the continuation of the tenancy agreement and hence, the notice provisions are required and the increase in rent could not exceed the annual guideline amount.

[22] I make these observations to support the rationale that the interpretation of the appellant is incorrect and “makes no sense” considering the provisions of the Act. When a month-to-month deemed period is imposed, the tenancy agreement is renewed and continues. The wording “during the period of the tenant’s tenancy agreement” refers to the continuing or renewed tenancy and not a new tenancy agreement with a thirty-day expiry date for each thirty days, as suggested by the appellant. To decide otherwise, we conclude, would render s. 74 (12) of the Act meaningless.

[23] Accordingly, I find no error in the Member’s interpretation of section 74(12).

Costs and Enforcement of the Eviction Order

[24] The respondent is seeking costs on a substantial indemnity basis in the amount of $15,908.88. The respondent submits that this is the second appeal brought by the appellant. The appellant was not successful on the first appeal and is unsuccessful on this appeal as well. The appellant has forced the respondent to incur substantial costs. Further, the appellant ordered the transcripts/audio of the hearing which further delayed the hearing of the appeal, per r. 61.09 of the Rules of Civil Procedure.[^9] The appeal could have been heard in the fall of 2022 if the transcripts, that were not referred in the appellant’s factum or main oral submissions, had not been ordered. The appellant paid for the costs of the transcripts.

[25] I do not agree that this is a case where substantial indemnity for costs should be ordered. The respondent has been paid in full on the rent up to the date of this hearing. I also am of the view that the conduct of the appellant does not warrant a costs award on a substantial indemnity basis. I conclude that a fair and reasonable amount for the unsuccessful party to pay in costs is the amount of $5,000, and so order.

[26] The LTB is not seeking costs and no costs are ordered.

[27] The respondent also seeks an order that the execution of the eviction order be expedited and refers the Court to Bhuiyan v. Guan.[^10] We are of the view that Bhuiyan is factually distinguishable. In Bhuiyan, the tenants were $35,000 in arrears when the eviction order was made, and paid no rent thereafter, so that they were $58,000 in arrears when the matter was heard by the Divisional Court. The Court found that the appeal had been filed to obtain an automatic stay of the eviction and was an abuse of process.

[28] In this case the appellant is not in arrears of rent, and the appeal was filed with respect to an arguable (albeit ultimately unpersuasive) question of statutory interpretation. I see no need to expedite the enforcement of the eviction order and determine that the tenant should be given an appropriate amount of time to vacate the premises and find other rental accommodation.

Disposition

[29] Thus, I order the following:

a. The appeal is dismissed.

b. The stay of the appealed order of the Board in December 2020 is lifted.

c. The eviction order shall not be enforced until after April 30, 2023.

d. The appellant/tenant shall pay costs to the respondent/landlord in the amount of $5,000.

Sutherland J.

I concur ___________________________

Heeney J.

I concur __________________________

Stewart J.

Released: March 13, 2023

[^1]: S.O. 2006, c. 17. [^2]: 2022 ONSC 446 [^3]: 1998 837 [^4]: 2002 SCC 42, [2002] 2 S.C.R. 559, at paras 26 and 27. [^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at paras. 119-122. [^6]: Decision at paragraph 8. [^7]: James A.H. Murray et al eds, The Oxford Dictionary, 2nd ed (Oxford, UK: Oxford University Press, 1996 at p. 1557. [^8]: 2019 ONCA 44, at para [^9]: RRO 1990, Reg 194 [^10]: 2021 ONSC 1775 (Div Ct)