CITATION: Ventullo v. Demelo, 2025 ONSC 3099

DIVISIONAL COURT FILE NO.: 547/24

DATE: 20250530

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Isidoro Ventullo, Appellant

AND:

George Demelo, Jose Demelo, Respondents

BEFORE: Justice S. Nakatsuru

COUNSEL: Josh Kirshenblat, for the Appellant

Spencer Toole, for Respondent

HEARD: In Toronto, May 20, 2025

ENDORSEMENT

[1] The appellant appeals from the July 3, 2024, and August 6, 2024, orders of the Landlord and Tenant Board (the “LTB”) Members Emily Robb and Camille Tancioco, respectively. The July 3, 2024, order terminated the appellant’s tenancy at the respondents’ property and the review order found there to be no error made in ordering the termination.

[2] The appeal is brought pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).

A. BACKGROUND

[3] The respondents applied for an order to terminate the tenancy and evict the appellant from 2A Clinton Street in Toronto because they required, in good faith, possession of the rental unit for the purpose of residential occupation for at least one year pursuant to s. 48 of the RTA. The respondent George Demelo, who resided in Edmonton at the time, intended to move into the unit to support his 94-year-old father, Jose Demelo, who was living in an assisting living facility and suffering from dementia. The appellant himself was 90 years old at the time, had mobility issues, and had lived in the unit for 18 years.

The Termination Order of Member Robb (July 3, 2024)

[4] The hearing took place on May 2, 2024. The respondents had legal representation. The appellant was assisted by a non-legal representative.

[5] Member Robb determined that the subject unit was properly identified in the notice of termination in accordance with s. 43 of the RTA based on the evidence of the Canada Post employee who testified on behalf of the appellant and stated that while there were two units at 2A Clinton (the appellant occupying the lower unit), there was only one mailbox (used by the appellant) and that the postal service recognized only one address (it did not recognize “lower-2A Clinton Street”). The worker further testified that the upper unit had not been occupied in over three years. There was no real dispute about that at the hearing.

[6] On the issue of the own-use ground for termination of the tenancy, the respondent George Demelo gave evidence regarding his father’s condition and his need to take up residency at the unit to be close to his father, who relies on him for emotional, financial and other support, as confirmed in a letter from the assisted living facility where the father resides.

[7] The appellant testified that the notice of termination was a reprisal for his complaint regarding bed bugs and did not provide a reason for why he thought George Demelo would not move into the property.

[8] Member Robb reviewed the law on the good faith requirement and the distinction between motive in seeking possession, which is irrelevant, and intent, which is relevant, and found that the respondents, as landlords, had established on a balance of probabilities that they, in good faith, required vacant possession of the subject unit for their residential occupation for at least one year.

[9] With respect to s. 83(3)(c), which necessitates refusal of an eviction application where the reason for the application is the tenant’s attempt to secure or enforce their legal rights, Member Robb noted that both parties gave evidence that the bed bug issue was addressed by the respondents after they were informed of the issue. Member Robb was not satisfied that the reason for the application was the appellant’s complaint.

[10] With respect to s. 83(2), which mandates review of the circumstances and consideration of whether or not the LTB should exercise its power to order eviction prior to granting an application for same, Member Robb noted that given the length of the appellant’s tenancy, his age and health, it would not be unfair to postpone termination of the tenancy to September 30, 2024, by which time the appellant would be required to vacate the unit.

The Review Order of Member Tancioco (August 6, 2024)

[11] The appellant requested a review of Member Robb’s order on August 2, 2024. A preliminary review of that request was completed without a hearing and denied. The basis for the appellant’s request for review was Member Robb’s alleged error in law with respect to application of s. 83(2) of the RTA, namely consideration of the appellant’s age and income and the consequent impact loss of housing would have on him.

[12] Member Tancioco held that Member Robb had correctly exercised her jurisdiction under s. 83(2), considering the evidence of the parties’ circumstances and concluding that postponement of the eviction was appropriate. That decision was entitled to deference. Member Tancioco was not satisfied that there was a serious error in the order or in the proceedings, and/or that the appellant was not reasonably able to participate in the proceeding.

B. JURISDICTION AND STANDARD OF REVIEW

[13] This court has jurisdiction to hear an appeal from an order of the LTB on a question of law only. Procedural unfairness is considered a question of law for the purposes of s. 210: Lacroix v. Central-McKinlay International Ltd., 2022 ONSC 2807 (Div. Ct.), at para. 9.

[14] The standard of review applicable to questions of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. The same standard applies to questions of procedural fairness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220; Lacroix, at para. 10.

C. ISSUES ON APPEAL

[15] The appellant raises essentially three issues:

(1) Did Member Robb err in law in concluding that the manner in which the subject unit was identified in the notice of termination was appropriate?

(2) Did Member Robb err in law by failing to properly balance the interests of the parties, namely the appellant’s circumstances, in ordering his eviction?

(3) Was the appellant’s right to a procedurally fair hearing breached because he was not given an opportunity to speak to duty counsel, there was no interpreter present, mediation was not offered, and his submissions regarding reprisal were cut off by Member Robb?

D. ANALYSIS

[16] There is no merit to the first ground of appeal. In the oft-quoted passage from Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, on the distinction between questions of law, fact, and mixed fact and law, the court says:

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.

[17] Whether the notice of termination was valid is a question of mixed law and fact. Member Robb did not make an error regarding the correct legal test. Rather, she applied that test to the notice before her and found that proper notice was given. Regardless of whether she erred in that, no jurisdiction to appeal arises: Leaf v. Gonzalez, 2023 ONSC 3899, at para. 5.

[18] Regarding the second ground of appeal, again, the member did not err in law in balancing the interests of the parties under s. 83 of the RTA. Although her reasons are brief, they do not reveal any error on a question of law.

[19] Member Robb factually rejected the appellant’s reprisal argument regarding the dated bed-bug issue under s. 83(3)(c). No question of law arises from this finding.

[20] In addition, Member Robb properly considered the appellant’s personal circumstances under s. 83(2) of the RTA and ordered a delayed eviction on that basis. She also alluded to the respondent’s needs. She articulated the proper test, was not persuaded by the appellant’s argument, but due to his age and health, found it to be not unfair to postpone the termination to September 30, 2024, but not beyond (the appellant was seeking a five-year delay).

[21] While the appellant argues that the member failed to properly consider other factors, these were a matter of weight as assigned by the member. Member Robb’s assessment of the various factors under s. 83 does not amount to a question of law: Kang v. Grant, 2020 ONSC 6934, at paras. 24-25; Maynard v. Kerr, 2022 ONSC 4259, at para. 19; Collins-Neely v. 2540507 Ontario Inc. et al, 2025 ONSC 1171, at para. 15.

[22] Lastly, I find that no procedural unfairness has been shown. Nothing in the record presented on this appeal supports the assertions made by the appellant. No transcript of the hearing was provided. No fresh evidence was proffered. Additionally, I observe that none of the procedural defects or unfairness was raised before Member Tancioco on the Review Decision.

E. DISPOSITION

[23] For those reasons, the appeal is dismissed.

[24] Having taken into account all the relevant circumstances, I find that this is not a case for costs.

Justice S. Nakatsuru

Date: May 30, 2025.