CITATION: Henye v. Minto Apartment Limited Partnership on behalf of the Registered Owners, 2025 ONSC 2219
DIVISIONAL COURT FILE NO.: 429/24
LTB FILE NOS. LTB-L-064030-22 and LTB-L-064030-22RV
DATE: 20250404
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: ANDRAS L. HENYE, Appellant (Tenant)
AND
MINTO APARTMENT LIMITED PARTNERSHIP ON BEHALF OF THE REGISTERED OWNERS, Respondent (Landlord)
BEFORE: M.D. FAIETA J.
COUNSEL: Dr. Michael F. Motala, for the Appellant Martin P. Zarnett, for the Respondent Nicola Mulima, for the Landlord and Tenant Board
HEARD: March 19, 2025
FAIETA J.
CORRECTED ENDORSEMENT
[1] The appellant tenant, Mr. Andras Henye, appeals from an Order of the Landlord Tenant Board (the “Board”) issued on May 10, 2024, that terminated his tenancy and ordered that he move out of the rental unit on or before June 30, 2024. The Order was made on the grounds that the appellant’s cigarette smoking had substantially interfered with the reasonable enjoyment of the residential complex for all usual purposes by another tenant contrary to s. 64(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”)
[2] The appellant requested a review hearing on the grounds that the Member erred in failing to impose a conditional order rather than requiring his eviction. The Review Member dismissed the appellant’s request for review as they found that the Member’s exercise of discretion was rationally connected to the evidence and submissions.
BACKGROUND
[3] The appellant has resided in the residential unit for almost four decades. Although the 18-floor apartment building has a no smoking policy, the appellant’s lease is unique because it allows smoking. There is no dispute that the appellant smokes in his rental unit. The appellant testified that he smokes a pack and a half of cigarettes each day. The respondent’s property manager inspected the residential unit and noted a strong cigarette odour and yellow staining on the walls. The appellant’s neighbour suffers from asthma and was seriously impacted by the smoke emanating from the appellant’s residential unit. In October 2022, the respondent served the appellant a N5 notice of termination form due to the impact of his smoking. The appellant’s neighbour states that the appellant’s smoking behaviour did not change after the N5 notice was served. The respondent tried to ameliorate the conditions by sealing up the appellant’s rental unit and by installing an air filter. The respondent’s property manager states that two other tenants on the same floor complained of the cigarette smell but were unwilling to testify.
[4] On January 3, 2024, a hearing was held by videoconference. In its Order dated May 10, 2024, the Member found that the appellant had not made a meaningful attempt to address the cigarette odour emanating from his residential unit. The Member found that the appellant’s behaviour substantially interfered with the reasonable enjoyment of the residential complex.
[5] Pursuant to s. 83 of the RTA, the Member considered whether it would be unfair to refuse to evict the appellant. The appellant testified that he would comply with any order requesting that he cease smoking in the rental unit. However, when asked whether he would “continue doing what you’re going to do” once the motion concluded, the appellant replied: “I’m going to live my life the way I live it”. In light of this comment, the Member found that it seemed that the appellant would not comply with a conditional order. However, the Member delayed the appellant’s eviction to June 30, 2024.
[6] A request for review was dismissed on June 6, 2024. The Review Member dismissed the appellant’s submission that:
(a) the Member had misinterpreted what was meant when he stated that he would “live his life”.
(b) the Member had not considered his circumstances when concluding that it was not unfair to postpone the eviction to June 30, 2024.
[7] On this appeal, the appellant submits:
(a) The Board erred in refusing to grant an adjournment
(b) The Board erred in failing to advise the unrepresented appellant of his right to call and examine witnesses.
(c) The Board erred in failing to accord the appellant a fair hearing as an unrepresented party on the grounds that the appellant did not have knowledge of the case to be met.
(d) The Board erred in disregarding the appellant’s verbal commitment to abide by the terms of any conditional order made by the Order as an alternative to his immediate eviction.
(e) The Board erred in disregarding the appellant’s attachment to the only accommodation he has known all his adult life and did not consider the unavailability of any similarly situation alternative accommodation.
STATUTORY FRAMEWORK
[8] The purpose of the RTA is “to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes”: RTA, s. 1.
[9] The RTA is remedial legislation with a "tenant protection focus" and, as such, it must receive "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”: Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, at para. 19.
[10] The Board has exclusive jurisdiction to determine all applications made under the RTA: see RTA, s. 168(2). The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction: see RTA, s. 174.
[11] Under s. 183 of the RTA, the Board is to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter”.
STANDARD OF REVIEW
[12] I adopt the following principles expressed by Shore J. in Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658, at paras. 12-16:
12 An appeal from an order of the Board lies to this court only 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 of mixed fact and law: see Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.), at para. 26; Zouhar v. Salford Investments Ltd., 2008 27484Div. Ct., at paras. 8-9.
13 The Supreme Court of Canada clarified the difference between questions of law, fact, and mixed fact and law, in Canada (Director of Investigation and Research) v. Southam Inc, 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35: "Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests."
14 The applicable standard of review on questions of law is correctness.
15 No assessment of the standard of review is necessary where the requirements of natural justice and procedural fairness are at issue. The court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to, by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly: London (City) v. Ayerswood Development Corp.(2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.), at para. 10; P.D. v. The Children's Aid Society of the Region of Peel and K.D, 2022 ONSC 1817, at paras. 8-10.
16 In hearing the appeal, the court must consider that the Board is a specialized tribunal, and the legislature has deliberately limited appeals from its decisions to, inter alia, ensure a process that is streamlined, timely and cost-efficient.
[13] An appeal under the RTA does not preclude an application for judicial review: Equity Builders Ltd. et al. v. Landlord and Tenant Board et al., 2025 ONSC 759, at para. 53. The appellant did not file an application for judicial review.
ISSUE #1: WAS THERE A DENIAL OF PROCEDURAL FAIRNESS?
[14] As noted by Shore J. in Jedadiah Drummond, at para. 17:
The Board is entitled to control its own process and its procedural choices are entitled to deference. This is because administrative tribunals, including the Board, have experience and expertise balancing the need to ensure fair participation by all parties with the need to ensure that the issues are dealt with in a timely and efficient way: see Wei v. Liu, 2022 ONSC 3887, at para. 9.
[15] The hearing was held by videoconference. The appellant submits that the Member erred in failing to ask the appellant prior to hearing the evidence whether there were any preliminary issues that he wished to raise. There is no obligation on a tribunal to make any such inquiry. Certainly, as a matter of efficient practice, it would be prudent for a tribunal to inquire about preliminary issues at the outset of a hearing. In this case, however, the failure to do so did not amount to a breach of the duty of fairness.
[16] At the outset the Member was advised that the parties had been unsuccessful in their efforts to settle this application. Following the hearing of the evidence in chief of the respondent’s first witness, the appellant requested an adjournment of the hearing to retain counsel.
[17] In Solomon v. Levy, 2015 ONSC 2556, the Divisional Court stated, at paras. 39 and 40:
While the granting of adjournments is in the discretion of the Board member hearing an application, the general approach of the Board is informed by section 183 of the Act, which directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter”.
Accordingly, the Board member must take into account the public interest in resolving a case as soon as possible. The key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing.
[18] In advance of this hearing, the appellant did not ask the Board to reschedule as permitted by Rule 21 of the Board’s Rules of Procedure. The Member fairly noted that this application had been waiting for a hearing since 2022 and that a notice of hearing had been sent out in September 2023. I find that the Member’s refusal to grant an adjournment did not amount to a breach of the duty of fairness.
[19] The appellant also submits that the Member failed to advise the appellant of his right to cross-examine the respondent’s witnesses. There was no obligation to do so. In any event, for each witness, the Member asked the appellant whether he had any questions. The appellant declined. There was no breach of procedural fairness in this regard.
[20] The appellant further submits that the Member erred in failing to afford a fair hearing to the tenant in that he did not know the case to be met. The issues for the hearing were plainly described in the N5 Notice form, dated October 7, 2022, with detailed particulars shown in Schedule A. Further, the appellant exercised the opportunity to speak with duty counsel on the day of the hearing. The Board was under no obligation to explain to the appellant the case that he had to meet. Further, the issues were simple and well known. The relevant questions were whether the appellant unreasonably interfered with the other tenants’ enjoyment of their premises and, if so, whether he should be evicted. I dismiss the submission that the appellant was not afforded a fair hearing because he allegedly did not know the case to be met.
ISSUE #2: DID THE BOARD ERR IN REFUSING TO IMPOSE A CONDITIONAL ORDER PURSUANT TO SECTION 83 OF THE RTA?
[21] Subsections 83(1) and 83(2) of the RTA state:
Power of Board, eviction
83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).
Mandatory review
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). 2006, c. 17, s. 83 (2).
[22] The appellant states that the Board erred in disregarding:
(a) The appellant’s verbal commitment to abide by the terms of any conditional order made by the Order as an alternative to his immediate eviction.
(b) The appellant’s attachment to the only accommodation he has known all his adult life and did not consider the unavailability of any similarly situation alternative accommodation.
[23] The assertion that the Member failed to consider relevant facts and thus failed to properly consider whether relief from forfeiture should be granted under s. 83 of the RTA does not give rise to a question of law. Rather, it is an invitation to have this court reassess the evidence and the findings of fact made by the Member, which is not this Court’s function on appeal under the RTA: Kushner v. Turtledove Management Corp., [2009] O.J. No. 1064, at para. 3; Oz. v Shearer, 2020 ONSC 6685, paras. 31, 34. At best, the exercise of discretion under s. 83 of the RTA is a question of mixed fact and law, which is not subject to appeal either: Oz, para. 35.
ISSUE #3: WAS THERE A REASONABLE APPREHENSION OF BIAS?
[24] The appellant states that a reasonable apprehension of bias on the part of the Member arose from the alleged lack of procedural fairness and the Member’s alleged misinterpretation of the language used by the appellant in respect of whether a conditional order should be made rather than an eviction. This ground for appeal is not found in the Notice of Appeal.
[25] There is a strong presumption that an administrative decision maker is impartial. This presumption can only be displaced if the decision maker’s conduct, when assessed in the context of the entire proceeding, gives rise to a reasonable apprehension of bias: Equity Builders Ltd. et al. v. Landlord and Tenant Board et al., 2025 ONSC 759, at para. 21. The burden is on the party alleging bias and the grounds for making the allegation must be “substantial”: Landa v. The Dominion of Canada General Insurance Company, 2024 ONSC 2871, at para. 97.
[26] As noted above, I have found that there is no merit to the appellant’s grounds for appeal asserting that the Member displayed a reasonable apprehension of bias. Further, having considered the transcript and the all the circumstances, I find that the appellant has not established a reasonable apprehension of bias.
ISSUE #4: DID THE REVIEW MEMBER FAIL TO ADEQUATELY ACCOUNT FOR THE LACK OF PROCEDURAL FAIRNESS AND REASONABLE APPREHENSION OF BIAS
[27] The appellant submits that the Review Member failed to critically examine whether his statement that “I’m going to live my life the way I live it” suggested that he would not comply with non-smoking conditions imposed on his continued occupation of the rental unit. Once again, this issue is raised in the appellant’s Factum but not his Notice of Appeal. In any event, it is clear from the Review Decision that the Review Member did assess the merits of this assertion. The appellant further submits the Review Member failed to critically examine whether there was a reasonable apprehension of bias in respect of the Member. However, there is no evidence that this issue was placed before the Review Member.
CONCLUSIONS
[28] This appeal is dismissed.
[29] I find that it is fair and reasonable for the appellant to pay costs of $2,500.00 to the respondent in respect of this appeal.
M.D. Faieta J.
RELEASED: April 4, 2025