CITATION: Kizemchuk v. 60 Montclair Limited, 2024 ONSC 6140
DIVISIONAL COURT FILE NO.: 189/24
DATE: 20241105
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Ben Kizemchuk and Kristine Kizemchuk
Appellants
– and –
60 Montclair Limited
Respondent
Mark Glynn and Camila Maldi, for the Appellants
David Golden and Jennifer L. Siemon, for the Respondent
Linda Naidoo, for the Landlord and Tenant Board
HEARD at Toronto: September 10, 2024
DAVIES J.
REASONS FOR DECISION
A. OVERVIEW
[1] Ben and Kristine Kizemchuk have lived in a unit at 60 Montclair Ave for more than 42 years. Their unit is owned by 60 Montclair Limited, a company controlled by Mr. Kizemchuk’s sister.
[2] In October 2021, the landlord filed an application with the Landlord and Tenant Board seeking to terminate Mr. and Mrs. Kizemchuk’s tenancy because their unit was severely cluttered and had become a fire hazard. The Board heard the landlord’s application on July 11, 2022. Only Mr. Kizemchuk attended the hearing. He sought an adjournment because Mrs. Kizemchuk was out of the country. Member James denied his adjournment request and proceeded with the hearing.
[3] Member James did not release her decision until January 5, 2023 – almost six months after the hearing. She found that Mr. and Mrs. Kizemchuk had not maintained their unit in a state of cleanliness and had interfered with the landlord’s rights, privileges and interests. Member James made a conditional order: she gave Mr. and Mrs. Kizemchuk 30 days (i.e. to February 5, 2023) to de-clutter their unit and return it to a reasonable state of cleanliness failing which the landlord could apply, without notice to Mr. or Mrs. Kizemchuk, for an order terminating the tenancy.
[4] Because of a clerical error, Mr. and Mrs. Kizemchuk did not receive a copy of Member James’s January 5, 2023 order until after the 30-day period for them to comply had expired.
[5] Mr. and Mrs. Kizemchuk requested a review of Member James’s order. The Board directed a hearing on their request for review and granted an interim stay of Member James’s order pending the review hearing.
[6] The review hearing proceeded before Member Morris on January 25, 2024.
[7] Member Morris found that Mrs. Kizemchuk was reasonably able to participate in the July 11, 2022 hearing and Member James did not err in denying the adjournment. Nevertheless, Member Morris was concerned that it took Member James almost six months to release her order. Member Morris was also concerned that Mr. and Mrs. Kizemchuk had not had an opportunity to comply with Member James’s conditional order because it was not sent to them in a timely fashion. Member Morris invited the parties to adduce evidence at the review hearing about any improvement to the state of the unit since July 2022. She also considered whether to vary the January 2023 order to give Mr. and Mrs. Kizemchuk another opportunity to de-clutter the unit. In the end, Member Morris dismissed the request for review but varied Member James’s order. Member Morris issued an unconditional eviction order but delayed their eviction by five weeks to allow Mr. and Mrs. Kizemchuk time to find new accommodation.
[8] Mr. and Mrs. Kizemchuk appeal Member James’s January 5, 2023 decision and Member Morris’s February 22, 2024 decision. They raise five grounds of appeal:
a. Member Morris failed to follow the proper process on a review hearing, which was procedurally unfair;
b. Member James denied Mr. and Mrs. Kizemchuk their right to reasonably participate in the July 11, 2022 hearing and Member Morris erred by failing to remedy that procedural unfairness;
c. Member Morris made findings of fact that were unsupported by the evidence;
d. Member Morris failed to remedy the unfairness caused by the Board’s failure to send Member James’s January 5, 2023 order to Mr. and Mrs. Kizemchuk in a timely fashion; and
e. Member Morris failed to consider whether the eviction application must be denied (even if Mr. and Mrs. Kizemchuk were in breach of their obligations under the Residential Tenancies Act 2006, S.O. 2006, c. 17) because the landlord had breached its obligations under the Act.
[9] For the following reasons, I dismiss the appeal. Neither Member James nor Member Morris made any legal error in their orders and the proceedings below were fair.
B. Scope of Appeal and Standard of Review
[10] An order of the Board can only be appealed to this Court on a question of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210(1). This court does not have jurisdiction to hear an appeal on a question of fact, or a question of mixed fact and law: Residential Tenancies Act, s. 210, Devenne v. Sedun, 2020 ONSC 6141(Div. Ct.), at para. 26.
[11] The applicable standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.
C. Procedural Fairness
[12] Proceedings before the Landlord and Tenant Board require a high level of procedural fairness because the stakes are very high when a landlord is seeking to evict a tenant, particularly long-term tenants like Mr. and Mrs. Kizemchuk. While the Board is entitled to hold relatively informal, expeditious hearings, tenants have a right to know the case against them and they have a right to be heard: Residential Tenancies Act, 2006, s. 183. The proceedings before the Board must also comply with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. For example, the parties are entitled to reasonable notice of the hearing. They have a right to be represented. They have a right to adduce relevant evidence and examine witnesses. And they have a right to a written order and written reasons, upon request. Having said that, the Board’s duty to ensure the proceedings are fair does not detract from its broad discretion to control its own process.
[13] If the Board failed to afford Mr. and Mrs. Kizemchuk procedural fairness, that would be an error of law that falls within this court’s jurisdiction on an appeal: Shapiro v. Swingler, 2021 ONSC 6191 at para. 25.
[14] Two of the grounds advanced by Mr. and Mrs. Kizemchuk raise issues about the fairness of the process. First, they argue the process Member Morris adopted at the review hearing was inconsistent with the Board’s Rules of Procedure and Interpretation Guidelines and was unfair. Second, they argue that Member James’s decision to deny their adjournment request was procedurally unfair.
[15] I reject both these arguments.
a. Conduct of the review hearing was fair
[16] Mr. and Mrs. Kizemchuk argue that Member Morris failed to follow the prescribed process for the review hearing and, as a result, denied them procedural fairness. I do not agree. Although the circumstances of this case are unusual, I am satisfied the process followed by Member Morris in relation to Mr. and Mrs. Kizemchuk’s request for review was fair and complied with the Board’s Rules of Procedure and Interpretation Guidelines.
[17] Any person directly affected by a final order of the Board can request a review of that order: Landlord and Tenant Board Rules of Procedure, Rule 26.1. The Board has the discretion to set aside or vary a final order if it contains a serious error or if a party was not reasonably able to participate in the initial hearing: Residential Tenancies Act, s. 209, Landlord and Tenant Board Rules of Procedure, Rule 26.8(e).
[18] Mr. and Mrs. Kizemchuk filed their request for review of Member James’s conditional eviction order on February 21, 2023. They articulated five grounds for review. First, Mr. and Mrs. Kizemchuk argued that Mrs. Kizemchuk was not reasonably able to participate in the hearing and Member James erred in denying Mr. Kizemchuk’s adjournment request. Second, they argued that Member James was biased against them. Third, they argued Member James made several factual errors in her decision. Fourth, they complained that they did not receive the January 5, 2023 order until after the deadline to comply with the conditions had passed. Finally, they argued there had been significant changes since the hearing in July 2022 and there was a “significant amount of new evidence” on the central issue in dispute.
[19] When a request for review is filed, the Board will conduct a “preliminary review” of the request: Landlord and Tenant Board Rules of Procedure, Rule 26.9(d). The Board’s Interpretation Guideline 8, which deals with Review Hearings, says that the Member conducting the “preliminary review” will decide whether the order may contain a serious error or a party may not have been reasonably able to participate in the original proceeding. If the Member finds there may be an issue with the original decision, a “review hearing” is scheduled. If the Member finds there are no issues with the original decision, the request for review can be dismissed at the first step without a hearing.
[20] The “preliminary review” was conducted by Member Akram and, on March 2, 2023, Member Akram directed the Board to schedule a review hearing. Member Akram’s order states, “subject to the reviewing member’s discretion, the issue to be determined on review is whether the Tenants were reasonably able to participate at the hearing on July 11, 2022.”
[21] Member Morris conducted the review hearing on January 25, 2024.
[22] Two outcomes are possible at a review hearing: the Member may dismiss the request to review or the Member may grant the request and order a re-hearing. If the Member finds there is no serious error and the parties were reasonably able to participate, the review will be dismissed at this stage. A re-hearing will only be ordered if the Member finds there is a serious error in the original decision or a party was not reasonably able to participate in the original hearing. The Interpretation Guidelines say that parties should expect the Member conducting the review hearing to decide immediately whether to direct a re-hearing. Parties are also told that if a re-hearing is ordered, the re-hearing will likely be held on the same day as the review hearing.
[23] After hearing brief submissions, Member Morris told the parties she was not ordering a re-hearing in relation to Mrs. Kizemchuk’s ability to participate in the July 11, 2022 hearing. Member Morris also told the parties she was concerned about the delay in the release of Member James’s decision and about the fact that Mr. and Mrs. Kizemchuk did not receive Member James’s order in a timely fashion. Member Morris invited the parties to adduce evidence and make submissions on two issues raised by Mr. and Mrs. Kizemchuk in their request to review:
(1) whether there was a serious error in Member James’s January 2023 order because of the six-month delay between the hearing and the release of her order; and
(2) whether there was a serious error in the order because Mr. and Mrs. Kizemchuk did not receive the order in time to comply with the condition to avoid eviction.
[24] There was nothing unfair about the process Member Morris followed. She made an immediate decision on part of Mr. and Mrs. Kizemchuk’s request for a review, namely whether Mrs. Kizemchuk was reasonably able to participate in the July 11, 2022 hearing. Member Morris then identified the issues she was going to consider at the review hearing. She gave the parties an opportunity to call evidence and make submissions on the two issues of concern: (1) whether Mr. and Mrs. Kizemchuk had de-cluttered their unit between July 11, 2022 and January 5, 2023 or after they received Member James’s order; and (2) whether an eviction order was still warranted in the circumstances. After hearing the evidence and submissions as part of the review hearing, Member Morris dismissed Mr. and Mrs. Kizemchuk’s request to review and gave detailed reasons for her decision.
[25] The process Member Morris adopted during the review hearing was consistent with both the Rules of Procedure and the Board’s Interpretation Guidelines and was fair.
b. Denial of the Adjournment
[26] Mr. and Mrs. Kizemchuk argue that Member James erred in denying an adjournment of the July 11, 2022 hearing and Member Morris erred in finding that Mrs. Kizemchuk had been reasonably able to participate in the hearing.
[27] The landlord’s application was originally scheduled for a virtual hearing on June 7, 2022. Mr. and Mrs. Kizemchuk asked the Board to convene the hearing in person rather than by video. The Board denied that request but authorized Mr. and Mrs. Kizemchuk to use a Public Access Terminal at the Board’s office to participate in the virtual hearing. The Member noted that staff would be available to help Mr. and Mrs. Kizemchuk with the technology, if needed.
[28] Mr. and Mrs. Kizemchuk went to the Board office on June 7, 2022 for the hearing but nobody was there to help them log in to the hearing through the Public Access Terminal. The hearing proceeded before Member James in their absence. Later that same day, Member James learned that Mr. and Mrs. Kizemchuk had tried to attend the hearing but, through no fault of their own, could not log in. As a result, Member James ordered a new hearing, which was scheduled for July 11, 2022.
[29] Mr. Kizemchuk appeared on July 11, 2022 and requested an adjournment. He explained that he did not receive the Notice of Hearing until June 29, 2022 and, by that time, Mrs. Kizemchuk was in England visiting their daughter. He explained that Mrs. Kizemchuk was the one who was going to present evidence and make submissions on their behalf but she was unable to attend from England.
[30] Member James denied the adjournment request. Member James gave oral reasons for her decision. Member James found that Mr. and Mrs. Kizemchuk had “ample time” to prepare for the hearing. Member James also found that Mrs. Kizemchuk could have arranged to attend the virtual hearing from England.
[31] Mr. and Mrs. Kizemchuk argue that the decision to deny them an adjournment was wrong for two reasons.
[32] First, they argue that Member James’s decision is inconsistent with the Board’s Interpretation Guidelines on how the phrase “not reasonably able to participate” has been interpreted. Interpretation Guideline 8 provides examples of circumstances in which the Board has found that a party was “not reasonably able to participate.” One example is when the “requestor was out of the country.” Another example is when the Notice of Hearing was “received late or not at all.” Mr. and Mrs. Kizemchuk argue that both grounds were present in this case and their request for an adjournment should, therefore, have been granted.
[33] A decision to grant or deny an adjournment request is a discretionary decision: Riddell v. Huynh, 2019 ONSC 2620 at paras. 43-44 (Div. Ct.). The fact that the Board has granted an adjournment in other cases because a party was out of the country or because the Notice of Hearing was delivered late does not mean it was a legal error for Member James to deny an adjournment in this case. The exercise of discretion is fact specific. Mr. Kizemchuk had an opportunity to fully explain why he was requesting an adjournment. Member James considered his submissions and decided, in the circumstances of this case, an adjournment was not warranted. Mr. and Mrs. Kizemchuk have not identified a legal error in Member James’s decision.
[34] Second, Mr. and Mrs. Kizemchuk argue the decision to deny the adjournment request was inconsistent with the accommodation they had been granted and was inconsistent with the Board’s obligations under the Human Rights Code.
[35] The Board is required to accommodate the needs of all parties in accordance with the Human Rights Code, including based on age: Human Rights Code, ss. 1 and 47(1). In some cases, granting an adjournment may be an appropriate and necessary accommodation: Beaux Properties Management Co. v. Shomer, 2019 ONSC 6170 at para. 2. In this case, however, the Board found that Mr. and Mrs. Kizemchuk had not established that they required accommodation based on their age.
[36] When the hearing was first scheduled, Mr. and Mrs. Kizemchuk objected to a virtual hearing and asked that the hearing proceed in person. Mr. and Mrs. Kizemchuk advanced several grounds for their request including: (a) their age and their lack of computer skills to manage a virtual hearing, (b) the volume of anticipated evidence, and (c) the disruption that was likely to be caused by noisy construction going on in their building.
[37] The Board dismissed their request for an in-person hearing. The Board was not satisfied that a virtual hearing would cause significant prejudice to Mr. and Mrs. Kizemchuk. The Board noted that the Member presiding at the hearing had an obligation to ensure the process was fair and could address any problems that arose. The Board explained all the options available to Mr. and Mrs. Kizemchuk to file their evidence if they were not comfortable filing their evidence electronically. In other words, the Board did not accept that Mr. and Mrs. Kizemchuk required accommodation based on an enumerated ground in the Human Rights Code. The Board only authorized Mr. and Mrs. Kizemchuk to use a Public Access Terminal at the Board’s office to address the challenges they may experience participating in a virtual hearing “as a result of noise infiltration.” In its ruling on their accommodation request, the Board said that Mr. and Mrs. Kizemchuk could contact the Board if they needed other accommodations. Mr. and Mrs. Kizemchuk did not request any further accommodations after the May 12, 2022 ruling.
[38] Member James’s decision to deny an adjournment was not inconsistent with the accommodation ruling or the Human Rights Code. The authorization to use the Public Access Terminal was not about accommodating Mr. and Mrs. Kizemchuk based on their age. That order was made to ensure they had a quiet place from which to participate in the virtual hearing. On July 11, 2022, Mr. Kizemchuk was able to access the hearing through the Public Access Terminal with the assistance of Board staff so he was able to avoid the construction noise in their unit. Mrs. Kizemchuk was away and could have arranged to attend from a location without noise.
[39] Member James made no legal error in her decision to deny the adjournment.
[40] Likewise, Member Morris made no legal error in finding Mrs. Kizemchuk was reasonably able to participate in the hearing. Of course, the phrase “reasonably able to participate” is to be interpreted broadly. Where a party had a genuine intent to participate but was prevented from doing so, a re-hearing should be held to give them an opportunity to participate: Abdalla et. Al. v. Koirala, 2023 ONSC 7106 at para. 17. However, there is a difference between being prevented from attending and failing to make reasonable efforts to attend. A party must demonstrate that they exercised diligence in their effort to attend the original hearing. If a party is not diligent in dealing with legal proceedings, they cannot expect the Board to hold a second hearing: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 at para. 8. It was open to Member James to find that Mrs. Kizemchuk could have, through the exercise of diligence, participated in the hearing and Member Morris made no error in dismissing the request for review on this ground.
D. Challenges to the Factual Findings
[41] Mr. and Mrs. Kizemchuk argue that Member Morris erred in law in making the following factual findings:
a. There had been no meaningful change in the state of their unit since the landlord served the notice of termination in October 2021;
b. Their unit remained a fire hazard; and
c. Their unit was not in a reasonable state of cleanliness.
[42] The tenants argue Member Morris either failed to consider the evidence that conflicted with these findings or failed to explain why she rejected that evidence. I disagree.
[43] In my view, Mr. and Mrs. Kizemchuk are really trying to challenge the weight Member Morris gave to the evidence they adduced during the review hearing, which does not give rise to a question of law. It will only be a legal error if the Board made a finding of fact for which there was no evidence or made a finding of fact based solely on irrelevant evidence or drew an irrational inference from the evidence: R. v. J.M.H., 2011 SCC 45 at para. 25. I am satisfied that Member Morris’s findings of fact were rational and supported by the evidence.
[44] Member Morris had the benefit of Member James’s findings of fact when she conducted the review hearing. Member James found that Mr. and Mrs. Kizemchuk had not maintained their unit in a state of cleanliness as required by the Act. At the July 11, 2022 hearing before Member James, the landlord filed photographs of Mr. and Mrs. Kizemchuk’s unit. Member James described those photographs as showing that most of the floors, counters and furniture were covered with clutter. Member James expressed particular concern that “all methods of egress were blocked” by clutter, that the sauna was filled with items and that there was a large amount of clutter around the cooking surfaces in the kitchen.
[45] At the review hearing, Member Morris was focused on whether the state of Mr. and Mrs. Kizemchuk’s unit had improved since the July 11, 2022 hearing because if Mr. and Mrs. Kizemchuk had de-cluttered their unit, Member James’s conditional eviction order would no longer be appropriate.
[46] Mr. and Mrs. Kizemchuk adduced evidence about what had transpired since July 11, 2022. Mrs. Kizemchuk testified about their efforts to organize their belongings and de-clutter their unit. Mrs. Kizemchuk also testified that the public health inspector came in their unit and said, “everything was fine.” Finally, Mrs. Kizemchuk testified that since July 11, 2022, they had complied with a Fire Marshal’s order that required them to reduce the clutter in their unit and to clear paths to exit their unit.
[47] The Fire Marshal inspected Mr. and Mrs. Kizemchuk’s unit on July 6, 2022. The Fire Marshal found that their unit contained an “unsafe level of stored materials throughout the unit.” The Fire Marshal also found that the clutter could delay or prevent evacuation in the event of fire and could interfere with the proper functioning of the smoke alarm system. On July 22, 2022, the Fire Marshal ordered Mr. and Mrs. Kizemchuk to reduce the height of the items in their sunroom and create a clear exit pathway that was “at least 1 metre wide.” Although the Fire Marshal’s order post-dated the hearing before Member James, the landlord sent a copy of the order to the Board after the hearing. Member Morris heard that on August 16, 2022, the Fire Marshal stayed the original order because Mr. and Mrs. Kizemchuk had addressed the concerns. Mrs. Kizemchuk testified, “it was just a matter of moving one box that was too high and clearing a few boxes from one pathway.”
[48] Mr. and Mrs. Kizemchuk argue that Member Morris failed to consider the evidence that they had complied with the Fire Marshal’s order and that their unit had passed a public health inspection. While the results of those inspections may be relevant to the issues before the Board, they are not determinative. I am satisfied that Member Morris adequately explained why she concluded that the unit was still not in a reasonable state of cleanliness and was still a fire hazard, notwithstanding the 2022 investigations.
[49] Absent proof to the contrary, Member Morris is presumed to have considered all the evidence she heard: Housen v. Nikolaisen, 2002 SCC 33 at para. 46. She was not required to address every piece of evidence in her reasons. Nevertheless, Member Morris gave detailed reasons for her findings, which were based on a series of photographs and videos that showed the state of the unit at various points in time.
[50] At the July 11, 2022 hearing, the landlord filed photographs and videos showing the state of Mr. and Mrs. Kizemchuk’s unit on October 4, 2021, March 31, 2022 and June 3, 2022. Member James described that evidence in her ruling as follows:
The pictures introduced into evidence show excessive clutter and debris including piles of clothing, boxes, furniture items, household items and bags. Most of the floor, counter space, furniture surfaces in all rooms of the rental unit appear to be filled with clutter.
[51] In her decision, Member Morris focused on the most recent evidence about the state of Mr. and Mrs. Kizemchuk’s unit because she was interested in whether there had been any improvement since the hearing or since Member James released her order.
[52] Mr. and Mrs. Kizemchuk filed photographs of their unit taken in the fall of 2022 – more than a year before the review hearing but after the Fire Marshal and public health inspections. Member Morris found that those photographs show that the rental unit was in the “same chaotic and cluttered state” as it had been in October 2021 and June 2022.
[53] The landlord filed photographs from February 2023, which post-date the Fire Marshal inspection, the public health inspection and Member James’s order. Those photographs showed little or no improvement in the state of the unit. Member Morris described those photographs as follows:
In some of the rooms there were no pathways as the floor was completely covered with various items. There was a closet completely stuffed with bags and containers of clothing and bed linen. The laundry room was filled with linens, towels, boxes, including on top of the washer and dryer. The kitchen was filled with pans, baskets, appliances, food containers, on all the surfaces, table, and there was only a tiny area on the floor where a person could pass. The solarium area was completely covered with stacks of boxes.
[54] The landlord also filed photographs of the unit from July 2023. Member Morris found that those photographs “show the dining room, closets, solarium in almost exactly the same state as in February 2023, and unchanged from earlier dates.”
[55] If their unit had been de-cluttered and returned to a reasonable state of cleanliness, Mr. and Mrs. Kizemchuk could have taken and filed photographs to prove the conditions in their unit had improved. They failed to do so. Rather, Mrs. Kizemchuk simply testified they were “making progress” but it was taking longer than anticipated.
[56] It was open to Member Morris to find on the totality of the evidence that there had been “no meaningful change” in the state of the unit in the more than two years since the landlords first served an eviction notice in October 2021.
[57] To the extent Mr. and Mrs. Kizemchuk suggest that Member Morris should have given greater weight to the evidence about the Fire Marshal inspection and the public health inspection, that is a question of fact, not a question of law.
E. Member Morris had authority to issue an unconditional eviction order
[58] In her January 5, 2023 order, Member James made a conditional eviction order. Member James gave Mr. and Mrs. Kizemchuk 30 days to de-clutter their unit failing which the landlord could request an eviction order without notice to Mr. or Mrs. Kizemchuk. Unfortunately, the Board did not send Mr. and Mrs. Kizemchuk a copy of Member James’s order until Mrs. Kizemchuk contacted the Board in mid-February 2023. As a result, Mr. and Mrs. Kizemchuk were not given an opportunity to comply with the conditional order before it expired.
[59] Member Morris accepted that Mr. and Mrs. Kizemchuk had been prejudiced by the Board’s failure to send them a copy of Member James’s order in a timely fashion. Mr. and Mrs. Kizemchuk now argue that Member Morris failed to remedy that prejudice in her decision and, in fact, exacerbated the unfairness by making an unconditional eviction order. I disagree.
[60] Member James made a conditional order because Mr. and Mrs. Kizemchuk were long-term tenants. She found that Mr. and Mrs. Kizemchuk should “be given the opportunity to preserve their tenancy.” Member James considered that Mr. and Mrs. Kizemchuk had already had more than a year to de-clutter their unit since the landlord had given notice of its intention to terminate their tenancy in October 2021. Nevertheless, Member James gave Mr. and Mrs. Kizemchuk a further 30 days to de-clutter their unit and return it to a reasonable state of cleanliness.
[61] Rule 26.14 states that when a request for review is dismissed, the Board “will lift any stay and confirm the order under review.” If Rule 26.14 is read in isolation, one might conclude that Member Morris’s jurisdiction was limited to confirming Member James’s order when she dismissed Mr. and Mrs. Kizemchuk’s request for a review. But the Board’s Rules of Procedure must be read holistically.
[62] The Rules of Procedure give the Board broad powers to make orders that are appropriate in the circumstances. For example, Rule 1.4 states that the Board may “impose conditions that are appropriate and fair.” And Rule 1.6(u) gives the Board authority to “take any other action [the Board] considers appropriate in the circumstances” to provide the most expeditious and fair determination of the issues in dispute.
[63] I am satisfied that Member Morris had the jurisdiction to vary Member James’s order even though she dismissed the request for review. Member Morris found that the January 5, 2023 conditional order had to be varied because the date for compliance had long passed. Member Morris then turned her mind to the possibility of extending the time for Mr. and Mrs. Kizemchuk to de-clutter their unit. Member Morris considered the amount of time Mr. and Mrs. Kizemchuk had already had to address the state of their unit. Ultimately, Member Morris found that Mr. and Mrs. Kizemchuk had not been “willing or able to clean and de-clutter their unit” in the two and a half years since receiving the notice of termination. Member Morris also found that Mr. and Mrs. Kizemchuk were not likely to comply with another conditional order. Those findings were open to Member Morris to make. By the time of the review hearing before Member Morris, more than two years had passed since the landlord gave Mr. and Mrs. Kizemchuk notice of its intent to terminate their tenancy and almost a year had passed since Mr. and Mrs. Kizemchuk received Member James’s order. Despite the passage of time, the condition of their unit had not improved in any meaningful way. Member Morris made no legal error in making an unconditional order in those circumstances.
F. Member Morris was not required to consider whether the circumstances required her to deny the eviction order
[64] Member Morris heard evidence that there was a flood in Mr. and Mrs. Kizemchuk’s unit in December 2022 that caused damage to their floors. Mrs. Kizemchuk testified that the landlord had not repaired the flooring. Mrs. Kizemchuk also testified that the delay in repairing the floors was delaying their efforts to de-clutter their apartment because they could not install a closet system they bought to help with the clutter until the floors were repaired.
[65] Mr. and Mrs. Kizemchuk argue that Member Morris failed to consider whether she was required to set aside Member James’s eviction order because the landlord was in breach of its obligations under the Act to maintain the unit in a good state of repair: Residential Tenancies Act, ss. 20 and 83.
[66] This ground of appeal can be disposed of summarily.
[67] If the Board holds a hearing on an application for an eviction order, the Board cannot grant the application if the landlord is in serious breach of its responsibilities under the Act: Residential Tenancies Act, ss. 83(2) and 83(3)(a). However, the obligation on the Board to consider whether it must refuse to grant an eviction only applies at a hearing. That requirement does not apply on a review: Delic v. Enrietti-Zoppo, 2022 ONSC 1627 at paras. 23-24.
[68] I do not agree with Mr. and Mrs. Kizemchuk that Member Morris engaged in something more than a review hearing and was, therefore, required to consider whether the circumstances required her to deny the eviction. I have already found that Member Morris followed the prescribed procedure on the request for review. I have also found that Member Morris declined to order a re-hearing on the landlord’s eviction application. As a result, Member Morris was not required to consider whether the landlord had breached the Act and whether she must set aside the eviction order on that basis.
G. Conclusion and Costs
[69] The Board made no legal error in any of its rulings and the proceedings below were fair. The appeal is, therefore, dismissed.
[70] Based on the agreement of the parties, Mr. and Mrs. Kizemchuk are ordered to pay the landlord $20,000 in costs inclusive of HST and disbursements.
Davies J.
Date: November 5, 2024
CITATION: Kizemchuk v. 60 Montclair Limited, 2024 ONSC 6140
DIVISIONAL COURT FILE NO.: 189/24
DATE: 20241105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Ben Kizemchuk and Kristine Kizemchuk
Appellants
– and –
60 Montclair Limited
Respondent
REASONS FOR DECISION
Davies J.
Date of Release: November 5, 2024