Shearer v. Oz, 2024 ONSC 1723

CITATION: Shearer v. Oz, 2024 ONSC 1723

DIVISIONAL COURT FILE NO.: DC-23-1351 and DC-23-1351-00JR

(Oshawa) DATE: 20240327

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, McGee and Cullin JJ.

BETWEEN:

CHARLES ROSS SHEARER and JENNA SHEARER Applicants/Appellants

– and –

ERAN OZ and JENNIFER OZ Respondents

Counsel:

Mr Shearer self-representing the Applicants/Appellants

Howard Stern, for the Respondents

Brian Blumenthal, for the Landlord and Tenant Board

HEARD at Oshawa (by ZOOM): September 22, 2023

REASONS FOR DECISION

D.L. Corbett J.

[1] The Appellants (the “Tenants”) challenge the decision of the Landlord and Tenant Board dated January 4, 2023, amended January 12, 2023, deciding claims for abatement of rent and other relief respecting alleged failures and misconduct by the Landlords (the “Landlords”), fixing net arrears of rent, and terminating the Tenants’ residential tenancy in a house owned by the Landlords.[^1] They do so both by way of appeal (File DC-23-1351) and by application for judicial review (DC-23-1351-00JR).

Summary and Disposition

[2] This has been a high conflict tenancy with numerous proceedings before the LTB. As found by the Board, there has been less than perfect conduct on both sides. The Board’s ultimate disposition of this matter was to give the Tenants credit against rent arrears arising from some failures by the Landlords, and to terminate the tenancy because of the chronic failure of the Tenants to meet their obligation to pay rent as it falls due. These findings were based on factual determinations made by the Board that were available on the record. The Board’s conclusion that the Tenants failed to meet their fundamental obligation as tenants is well supported by the record and has been reinforced by the Tenants’ failure to pay rent for a further two years after bringing arrears up-to-date.

[3] The scheme of the Residential Tenancies Act requires tenants to pay rent as it falls due. Tenants are not entitled to grant themselves a rent abatement pending decision on an abatement claim before the Board. This has been made clear to the Tenants and yet they have continued to fail to pay rent on the basis that they believe they are entitled to a rent abatement.

[4] While the Landlords have not been free from blame, they have been placed in an untenable position by the Tenants’ chronic long-term failure to pay rent. For the reasons that follow, I would dismiss the appeal and the application for judicial review.

Background

[5] The Landlords purchased a newly constructed house in a subdivision in Sunderland, and leased it to the Tenants, who moved into the property on December 1, 2017.

[6] Disputes arose and the Tenants moved out of the house about eighteen months later, on July 26, 2019. At a hearing before the Board in January 2020, “[t]he tenant testified that he is still in possession of the rental unit, as he has the keys to the unit, and attends the property frequently but has not resided there since July 2019.” (2020 117579 (ON LTB), para. 1). In the first proceeding for arrears and termination of the lease, the Board found arrears to be $10,355.00 to January 30, 2020, plus $66.94 per day from February 1, 2020 (an aggregate amount of $24,607 to August 15, 2020) and ordered termination of the tenancy and eviction of the Tenants.[^2]

[7] The Tenants filed a request to review the LTB decision of August 4, 2020, which was denied, and also initiated an appeal from the decision in the Divisional Court.

[8] The Landlords successfully moved to quash the appeal in this court. In granting this motion, Pattillo J. stated as follows:

… I am satisfied that the Tenants’ appeal raises no question of law and is otherwise totally devoid of merit. I am also of the view that in the circumstances, particularly the fact that the Tenants have not paid rent since August 2019, have not lived at the Property since July 2019 and have taken no steps to advance their applications before the Board, that the appeal was commenced solely for delay and is therefore also an abuse of process.

[9] The Tenants then purported to seek judicial review of the decision of Pattillo J., which I dismissed summarily pursuant to r. 2.1, during the course of which I stated as follows:

The underlying dispute has been decided on a final basis by this court and the application is a collateral attack on this court’s decision.

The applicants have brought a meritless appeal and now a meritless application for judicial review. I decline to restrict their access to this court on the basis of their litigation record so far. However, the applicants are cautioned that if they bring further proceedings in respect to matters that have already been decided on a final basis, that could lead the court to make an order restricting their unsupervised recourse to the justice system.

[10] The Tenants then moved before the Board to void the termination and eviction order by paying outstanding arrears. They made this payment in November 2020, by which time total arrears and costs amounted to $31,596.60 (2020 120980 (ON LTB)).

[11] Having paid the arrears to November 2020, the Tenants then again stopped paying rent, a situation that continued until a case management order of Charney J. in this proceeding in January 2023 (2023 ONSC 639). In his endorsement, Charney J. stated as follows (among other things):

The Tenants acknowledge that the monthly rent is $2,105.76, and that they have not paid any rent since December 2020.

Although the Tenants vacated the unit more than 2 years ago, they oppose the lifting of the statutory stay of the eviction because they feel that the Landlords will not make the repairs the Tenants believe are necessary if the Tenants are evicted. In short, the Tenants’ position is that the unit should remain vacant so that the Landlords cannot rent it to anyone else, even though the Tenants vacated the unit more than two years ago and have refused to pay any rent or the rental arrears ordered by the LTB during that time.

This position is untenable. (2023 ONSC 639, paras. 8-10)

It is clear law that a tenant may not grant himself a rent abatement or unilaterally deduct expenses from their rent – rent is to be paid unless and until the LTB grants a rent abatement. Mr. Shearer is no stranger to this principle, the case relied on is one where Mr. Shearer unsuccessfully advanced the same argument he tried today: Shearer v. Oz, 2021 ONSC 7844, at para. 13.

The LTB has found that, even after the rent abatements were calculated, the Tenants owed over $25,000 in rent arrears, and the Tenants have not paid any rent since that finding. They cannot refuse to pay rent in the hope that their appeal will be successful.

In these circumstances, with no rent having been paid for over two years, and the unit having been vacated, the statutory stay pending appeal must be lifted unless the Tenants pay the entire rent arrears owing. Otherwise the balance of convenience weighs so strongly in favour of the Landlords that the eviction should not be delayed for the appeal process to run its course.

The Tenants did request a period of time to pay the rental arrears before the stay of the eviction Order is lifted. I have agreed to give the Tenants until February 1, 2023 to make payment of the arrears in full, or the stay of the eviction order will be lifted. (2023 ONSC 639, paras. 15-18)

In the result, Charney J. ordered the Tenants to pay $27,565 in arrears by February 1, 2023, and ongoing monthly rent of $2,105.76 per month commencing February 1, 2023, failing which the stay of the LTB eviction order would be lifted.

The Current Proceedings

[12] The current proceedings concern two sets of issues. One concerns the rent and its non-payment. The second set concerns claims by the Tenants that they are entitled to abatement of rent as a result of shortcomings in the property and misconduct by the landlords. In addition, the Tenants raise numerous procedural arguments, including allegations of bias against the presiding LTB Member.

The Tenants’ Continuing Intransigence

[13] The thrust of the Tenants’ argument is misconceived. Some of their concerns had merit. But what they did about them – failing to pay rent, raising innumerable technical and procedural objections, and delaying proceedings – has not been meritorious, and substantially overshadows their claims against the Landlords.

[14] In paragraph 15 of the Tenants’ factum, they state as follows:

… the Appellants have learned lessons through trials of fire as to the real applicability of your legal system. Lessons that tenants in Ontario:

a. Cannot rely upon trusting the Board holding disputed funds, as they can be given away at will (discretion), mid-proceeding;

b. Should not file their own applications as the Members can use their discretion to bifurcate proceedings to ram through evictions of troubled tenancies and the higher courts will take no issue. The implication being instead, tenants should only use non-payment, and the resulting s.82 (RTA) rights for resolving problems, plus they can save filing fees.

c. Should simply withhold rent as they deem fit in their own trust until a decision is made by the Landlord and Tenant Board….

d. As much as the courts and the precedent determinations about “payment of rent being fundamental” dislike tenants taking matters into their own hands legislation, rules and procedures at the Board are designed for exactly this avenue.

[15] The Tenants are simply wrong in their understanding of the scheme of the RTA. Their obligation to pay rent is fundamental and they may not self-abate their rent. By their conduct and by their express word in their factum, they have been clear that they will not comply with their monthly rent obligation unless compelled to do so by court order.

The Impugned Decision

[16] There were four applications heard by the Board over seven days between January 10, 2020 and June 13, 2022:

1. The Landlords’ T1 application for arrears of rent, termination of the lease for non-payment of rent, and eviction.
2. The Tenants’ A1 application to determine whether the Residential Tenancies Act applies.
3. The Tenants’ T2 application in respect to alleged harassment, obstruction, coercion, threats or interference with the Tenants by the Landlords, substantial interference with the Tenants’ enjoyment of the leased premises, and illegal entries into the leased premises.
4. The Tenants’ T6 application in respect to the Landlords’ repair and maintenance obligations and alleged non-compliance with health and safety, housing and maintenance standards.

[17] The Board’s decision was released on January 4, 2023, and amended on January 12, 2023 (the “Decision”).

[18] Board addressed preliminary issues raised by the parties at the start of the Decision:

a. The Board ruled against the Landlords’ argument that a prior Board ruling rendered current issues before the Board res judicata (Decision, p. 2);

b. The Board declined to exercise its jurisdiction to declare the parties vexatious (Decision, p. 2); and

c. The Board ruled against the Landlords’ argument that the Tenants’ applications should be dismissed for lack of particularity (Decision, p. 3).

[19] The Board dismissed the Tenants’ A1 application on the basis that the Residential Tenancies Act clearly does apply to the leased premises, and the issue pursued by the Tenants is the application of the notice requirement prior to landlord entry for purposes of repair – a question that is unrelated to the question of whether the Act applies to the premises (Decision, p. 3). The Board later went on to consider whether the Landlords breached their obligations under the Act by entering the leased premises without proper notice; I review that aspect of the Board’s decision below.

[20] The Board ruled that there was no dispute that the Tenants had failed to pay rent for the period December 1, 2020 to June 30, 2021. The Board noted that the Tenants stated that they were then living in a house that they had purchased and concluded that, in these circumstances, it “would be unfair to grant relief from eviction” because of the Tenants’ non-payment of rent (Decision, pp 3-4). The Board found that the withholding of rent continued up to the time of the hearing and was a total of $54,375.21 to the end of January 2023 (Decision, para. 118).

[21] The Board addressed the Tenants’ T6 applications in respect to the Landlords’ duty to repair and maintain the property as follows:

(a) The Board found that there were two broken tiles near the front entry of the house, and that one tile in the bathroom had a small piece of broken grout in a bathroom (which the Tenants acknowledged was a cosmetic issue that did not prevent use of the area) (Decision, paras. 23-24);

(b) The Board found that there had been some drywall imperfections, which it concluded had been addressed with putty work by June 2019, but that painting of repaired areas had not been done leaving the putty spot “cosmetically unappealing” (Decision, paras. 25-29);

(c) An exterior flight of stairs is inconsistent with the Building Code, having risers with inconsistent distances between them (Decision, paras. 30-32);

(d) A door between the garage and the house was not operating properly, but the Board found that their own efforts to address this problem were sufficient: “[t]he tenants want that [repair that they did] declared as an appropriate fix and [do] not want the landlords to come back on them for this fix.” In other words, the Tenants were not seeking anything further from the Landlords on this issue but did not want to face a future claim from the Landlords for damage they caused effecting this repair (Decision, paras. 33 – 35);

(e) The Board found that the Landlords did not properly maintain the front lawn or remove snow from walkways and the driveway within 24 hours (Decision, paras. 50 – 58);

(f) The Board noted that the Tenants had raised concerns about some roof shingles that are not “tacked down” and are “lifting a bit” but also noted that the Tenants stated that “there are no issues as of yet” and that they just “wanted it documented so the Landlords cannot blame them for these issues later” (Decision, paras. 59 – 60); and

(g) The Board awarded a rent abatement of 2% of rent for these items (an aggregate amount of $1,049) in respect to drywall issues, broken tiles, the front stairs, and the garage door (which it described as “minimal issues”) (Decision, para. 108). The Board awarded a rent abatement of 5% for failures of lawn care and snow removal (an aggregate amount of $2,622.51) (Decision, para. 109).

[22] The Board characterized the Tenants’ claims respecting heating as “[t]he crux of the maintenance issues” (Decision, para. 36), with the Tenants claiming that the house was too cold for habitation during the winter. The Board reviewed evidence on this issue and found that the “heat reading gun evidence from either side is opposite” and “[t]he more persuasive evidence… [is] the thermal images taken by the Home Inspector, who was a “neutral third party” (Decision, para. 40). The Board found that there were “a number of windows and doors which show heat loss…. However, the Board concluded that the heat loss was not “so severe [that] the Tenants had to move from the unit” (Decision, para. 48).

[23] The Board awarded a rent abatement of 35% in respect to the heating issue (an aggregate amount of $22,137.82), on the basis that “there was a deficiency in the way the house holds heat”. In this regard, the Board found that “[t]he Landlords did not provide sufficient evidence to show that they did everything… they could to rectify the situation or even attempt to insulate the areas properly and without gaps” (Decision, para. 110).

[24] The Board described (at Decision, para. 61) the Tenants’ T2 application as concerning allegations of:

(a) illegal entry by the Landlords into the leased premises;

(b) substantial interference with the Tenants’ reasonable enjoyment of the premises;

(c) harassment, coercion, obstruction, threats or interference by the Landlords with the Tenants; and

(d) withholding of a vital service.

[25] In respect to “illegal entry”, the primary issue was whether the Landlords gave the Tenants sufficient notice of entry for the purposes of making repairs to the premises. Of the several instances raised by the tenants, the Board found that once the Landlords failed to give sufficient notice of entry (giving roughly 8 - 12 hours’ notice rather than the required 24 hours’ notice (Decision, paras. 69-70)). The Board was not satisfied that the other instances raised by the Tenants were established on the evidence before the Board (Decision, paras. 62 – 84). The Board awarded a rent abatement of $1,000 for the Landlords’ failure to give appropriate notice.

[26] The “substantial interference with reasonable enjoyment” was alleged to be the cumulative effect of the maintenance issues (described above), allegations that the Landlords lied to the Board and filed false applications with the Board, reporting the Tenants to the Children’s Aid Society, and referring to the female Tenant as “Mister” in text correspondence. The Board found there was “insufficient evidence” to establish that the Landlords lied to the Board or filed “false applications” (Decision, para. 87). As reflected in the Board’s disposition of the maintenance issues (the critical issue being the heating issue), failures by the Landlords to discharge their maintenance and repair obligations did not amount, cumulatively, to a substantial interference with the Tenants’ reasonable enjoyment of the premises (Decision, para. 86, and the prior discussion by the Board of these issues). Respecting the use of “Mister”, the Board found that the Landlords’ evidence that the mistake was an accident to be “reasonable and believable” and accepted it (Decision, para. 88). In respect to the report to the CAS, it was uncontested that the Landlords did make such a report, but they explained why they did it and argued that they had a reasonable basis for their concerns. The Board considered the evidence and found that “[t]he evidence does not persuade me to believe that the Landlords called CAS out of malice” (Decision, para. 96).

The alleged “withholding of a vital service” concerned a battle over control of the thermostat in the premises. After the Tenants moved out of the house, they wished to keep the cost of utilities low, as they were obliged to pay for them. The Landlords were concerned that the temperature would fall so low in the premises that pipes might freeze and cause damage. The Board found that the Landlord’s intervention did not “withhold a vital service” but was rather an “attempt to keep the vital service within an appropriate range to retain the house’s integrity as no one was physically living in the rental unit” (Decision, para. 103).

Issues Raised by the Tenants

[27] The Tenants state the issues for appeal in para. 17 of their factum:

At issue in this appeal and judicial review is whether Member Whittick erred in

(a) failing to consider obligations in s.83(3) (RTA);

(b) dismissal of the A1 application;

(c) their interpretation of notice requirements;

(d) their interpretation of s. 27 of the RTA;

(e) their interpretation of the Human Rights Code;

(f) breaches of Natural Justice when failing to consider and/or providing insufficient reasons regarding significant evidence, testimony and submissions;

(g) was this proceeding poisoned with reasonable grounds for an apprehension of bias.

[28] I will address each of these issues in turn.

Analysis

(a) Jurisdiction and Standard of Review

[29] This court has jurisdiction (a) over the appeal pursuant to s. 210 of the RTA, which provides for an appeal only in respect to a question of law, and (b) over the application for judicial review pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act.

[30] Where a party wishes to pursue both an appeal and an application for judicial review from the same decision, the appropriate course is to pursue both proceedings and for them to be heard and decided by the same panel of this court: Yatar v. TD Meloche Monnex, 2022 ONCA 446 [rev’d on other grounds 2024 SCC 8].

[31] In respect to the appeal, the standard of review for questions of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. For questions of procedural fairness, the standard of review is correctness (sometimes referred to as “fairness”). There is no appeal in respect to questions of fact or questions of mixed fact and law, except where there is an extricable legal question, which may be reviewed in this court on a correctness standard: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. The issue of reasonable apprehension of bias is considered a question of procedural fairness and may be pursued as part of an appeal: Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2005 24217, para. 70 (ON CA).

[32] In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the “other process” is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

(b) Subsection 83(3) of the RTA

[33] The Tenants argue that, because the Landlords were not in compliance with the RTA, the Board was not entitled to order a termination of the tenancy and eviction.

[34] Subsection 83(3) of the RTA provides:

… the Board shall refuse to grant the [eviction] application where satisfied that,

(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

[35] The Tenants argue that the Board awarded the largest reported abatement amount in history, and that, by any measure, the Landlords seriously breached their responsibilities under the Act and the lease. The Tenants argue that the Board failed to address this argument and that it is simply obvious that it applies in the circumstances of this case.

[36] The Tenants are misreading s. 83(3). It applies to a “serious breach” that exists at the time of the Board’s order. That is the way the provision has been interpreted and applied by the Board in past cases, and that is how the Board addressed the issue in this case. The Board was satisfied that there were no continuing “serious breaches” (within the meaning of this provision).

[37] I appreciate that the Board made a large abatement order in this case. One reason it is so large is that these matters dragged on so long before the Board – the rent arrears, likewise, are very high. It is clear that the Board considered all of the issues raised by the Tenants to be minor matters, at best, aside from the heating issue. The parties contested, vigorously, the extent of any shortcomings in the house related to heating. The Board found that the premises were not uninhabitable. It ordered a partial rent abatement for failure to address insulation issues, and made an order for repairs, which it was satisfied was an appropriate way to deal with the issue. The Board was clear that it did not regard the heating problem as justification for the Tenants withholding their rent.

[38] The Board’s apparent conclusion – that the Landlord’s breaches were not “serious” within the meaning of s.83(1) of the Act, is a finding of fact, or a finding of mixed fact and law with no extricable question of law. The conclusion is reasonable on the evidence. I see no basis on which this court may intervene.

(c) Dismissal of the A1 Application

[39] The Board correctly concluded that the Residential Tenancies Act applies to the tenancy at issue in this case. No one had suggested that it did not, and the Board quite properly declined to make a declaration where none was needed.

[40] The Board was also correct when it concluded that the Tenant’s concerns about the Landlords’ entries – and whether they were done in compliance with the notice provisions in the Act, were properly considered as part of the Tenants’ claims for abatement and other remedies arising from the Landlord’s alleged failures and defaults.

(d) Section 27 of the RTA

[41] Section 27 of the RTA provides the landlord a limited right of entry to leased residential premises on notice to the tenants. The Tenants argue that the Board erred in its interpretation of this provision, and thus erred in failing to find that the Landlords breached the provision multiple times and thereby interfered with the Tenants’ quiet enjoyment of the leased premises.

[42] Subsection 27(1) of the RTA provides:

A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:

1. To carry out a repair or replacement or do work in the rental unit.

2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.

3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9(4) of the Condominium Act, 1998.

4. To carry out an inspection of the rental unit, if,

i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20(1) or section 161, and

ii. it is reasonable to carry out the inspection.

5. For any other reasonable reason for entry specified in the tenancy agreement.

[43] “Rental unit” is defined in the Act as “any living accommodation used or intended for use as rented residential premises…. [Act, s. 2(1)].

[44] The Board found as follows: “in this case, the living accommodation is inside the house.” The Tenants argue that this finding is an error of law – they are entitled to quiet enjoyment of the entire leased property, not just “inside the house”.

[45] I agree with the Tenants in respect to their legal argument. Entry into exterior portions of leased premises could interfere with a tenant’s quite enjoyment of the premises. However, I would not interfere with the Board’s decision on this issue, for the reasons that follow.

[46] Tenants are entitled to quiet enjoyment of all of the leased premises which, in this case, includes land around the house, such as the front and back yards.

[47] That said, the Tenants’ complaints on this issue were not material to the overall disposition of the proceeding. One complaint concerned workers who came into the back yard area to do work on the premises to address complaints made by the Tenants, and their demand for swift remediation. Another complaint concerned when the Landlords parked in the driveway for a brief period when coming to the house to give the Tenants notice of entry on another occasion (to perform remedial work). From the Tenants’ perspective, the Landlords needed to give a separate notice to them if they intended to park on the driveway for the seconds or minutes required to place a notice in the mailbox – and absent advance notice, the Landlords should have parked on the street.

[48] The latter incident (parking on the driveway) was so obviously a de minimis issue that I would not send it back to the Board. The former incident is the sort of entry that requires notice pursuant to s. 27(1). On the record, it would have been open to the Board to conclude that all of the circumstances gave rise to constructive notice – that the Tenants knew or ought to have understood that workers could appear at any time to respond to their demand for swift remediation. That is not an inevitable finding, however, and is a question that this court will not answer at first instance. I would not remit that issue to the Board because the issue is so minor and would not have affected the overall disposition of the case. A finding, based on the correct law, would, however, have been salutary in the sense that it would be less likely to result in further misunderstandings on this issue – and could provoke a stronger response from the Board if a pattern emerged and continued in future.

[49] Finally, I note that the Board awarded a rent abatement of $1,000 for giving inadequate notice of entry to effect repairs at a time when the Tenants were not resident in the premises. There is no cross-appeal or cross-application. However, if I had considered that this issue ought to be re-heard by the Board, I would have directed a re-hearing on all aspects of this issue, including the remedy awarded: with respect, the Tenants should consider the abatement awarded in respect to this item to have been very generous in all of the circumstances.

[50] I would not give effect to this ground of appeal / review.

(e) The Human Rights Code

[51] The Tenants argue that the Board erred in finding that intentionality was a necessary part of finding mistreatment of the Tenants when the Landlords misreferred to one of them as “Mister” in email communications.

[52] This incident should not have been raised with the Board or with this court. A typographical error in a text communication is a triviality unworthy of the Board’s process. Even if it had been intended as an insult (and the Board found that it was not), not every slight – real or imagined – is a proper subject for legal complaint.

[53] The Board was correct in concluding that allegations of harassment and mistreatment do require intentionality – on the basis that no reasonable person would take offence at a typographical error. The Board’s finding that the error was inadvertent is reasonable and available on the record. This ground of appeal / review does not succeed.

(f) “[B]reaches of Natural Justice when failing to consider and/or providing insufficient reasons regarding significant evidence, testimony and submissions”

[54] As stated, this is not a properly stated issue on appeal or review. It is a generic summary of many different potential issues. I address this “ground” of appeal and review generally, and then consider the most pertinent specific issues raised by the Tenants.

I. Consideration of the Evidence

[55] The Board is not required to reference every piece of evidence and every argument made to it. Where, as here, the parties present a complex record and raise numerous insubstantial arguments, the Board need only reference those aspects of the case necessary to explain the Board’s decision. Further, the Board may dispose summarily of less important issues provided the overall basis of its conclusions is addressed. The Board met this standard in its lengthy reasons.

II. Sufficiency of Reasons

[56] The Board is a high-volume tribunal which must manage its resources carefully. The Tenants complain bitterly about delays they experienced in their own case. If every LTB file consumed the resources dedicated to the disputes between these parties, the process before the Board would grind to a standstill. The Board provided extensive reasons for its decision and thereby reasonably explained why it decided as it did.

[57] In particular, the Board was not required to wrestle minutely with all aspects of the evidence on the issue of heat loss and insulation. It accepted the evidence of the only “neutral third party”, and the conclusions it reached based on this evidence are supported by evidence before the Board.

III. Specific “significant evidence, testimony and submissions” argued by the Tenants

[58] In its seventeen pages of reasons, the Board reviewed pertinent evidence and explained how it came to its conclusions. With respect, proceedings before the Board must be summary in nature. The excessive time spent at the hearing of this matter is largely the fault of the Tenants, who pursued trivialities as well as issues of substance, and adopted a highly technical and litigious approach to the Board proceedings. The Board was not required to issue a longer decision, wrestling with more of the evidence, in order to explain its basic conclusions, and the resulting remedies it ordered.

[59] To the extent that there were shortcomings in the Board’s reasons, in my view they were matters of which the Landlords, not the Tenants, might have had grounds for review in this court.

[60] The Tenants failed to pay any rent at all during the disputed period, and their failure to expend money to meet the Tenants’ demands was explained, in part, by the failure of the Tenants to meet their fundamental obligation to pay rent. Two wrongs do not make a right, of course, but the Board could have but did not exercise its discretion to fix the quantum of rent abatement in light of the financial hardship to the Landlords of carrying the costs for the premises while receiving no rent from the Tenants. While it would be for the Board to consider this context and exercise its discretion, one would think that the Board could have considered much smaller rent abatements in light of the overall context of the case.

[61] The Tenants argue that the abatement is so large that the default must have been “serious”. That is not how I read the Board’s decision. The Board’s reasons justify its conclusions – some express and some implicit – that there was fault on both sides, that the Tenants must pay their rent as it falls due, that the Landlords need to complete further repair work, that both sides need to start behaving more reasonably, and that it does not serve the Tenants’ cause to complain about tiny issues of little import, or to undertake clearly disproportionate litigation before the Board. Implicit in these findings is a conclusion that the heating and insulation issues did not justify withholding rent and are not “serious” such that a voidable eviction order should not issue for non-payment of rent. I see no error of law in these findings.

(g) Reasonable Apprehension of Bias

[62] There is no basis for the allegation of reasonable apprehension of bias.

[63] In my view, the Member was faced with a difficult task trying to control unreasonable litigants who, nonetheless, had some issues that had merit. The Member was unable to keep the proceeding entirely within reasonable bounds, but an adjudicator walks a fine line when dealing with a case such as this one – trying to keep the parties on track, focused on the issues of importance, within reasonable time constraints – while at the same time affording the parties a reasonable opportunity to present their issues and evidence properly.

[64] A major premise of the Tenants’ argument on this point is entirely misconceived. They argue that “[t]his was a Member who decided from the outset they were going to terminate this problematic tenancy regardless of the facts or the law” (Factum, para. 77). That is not what the Member did. The Member made a termination order that could be voided by payment of net arrears. Nothing in the order precluded the Tenants from making the payment required to void the termination and eviction order. The basic premise of the Tenants’ argument on this point is obviously false.

Conclusion and Disposition

[65] In my view, the Board awarded a significant rent abatement in light of its factual findings, an amount that could have been challenged as unreasonable in this court by the Landlords. However, since the Landlords did not bring a cross-appeal or cross-application, this court has no jurisdiction to consider reducing the awarded rent abatement. I see no basis on which to interfere with the decision below at the behest of the Tenants.

[66] I would dismiss the appeal and the application, with aggregate costs for both proceedings payable to the Landlords, by the Tenants, fixed at $10,000, payable within thirty days. The statutory stay of the Board’s eviction order is lifted immediately as a consequence of this decision.

“D.L. Corbett J.”

I agree: “McGee J.”

I agree: “Cullin J.”

Date of Release: March 27, 2024

[^1]: The decisions are in respect to LTB files TET-03929-19AM, TET-05664-19-AM and TET-14131-20AM. [^2]: LTB File TEL-05362-19.