Court File and Parties
CITATION: Mason v. Azubalis, 2025 ONSC 5770
DIVISIONAL COURT FILE NO.: 323/24
DATE: 20251021
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.t. Bale, Nakatsuru and Shore JJ.
BETWEEN:
Jessica Mason
Tenant/Appellant
– and –
Anna Azubalis
Landlord/Respondent
Maija Pluto, Counsel for the Landlord/ Respondent
Samuel Mason, Counsel for the Tenant/ Appellant
HEARD at Toronto: April 7, 2025
Reasons for Decision
Shore J.
[1] This is a statutory appeal of two decisions of the Landlord and Tenant Board ("LTB" or "the Board"). In the first decision, dated September 19, 2023, the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation. In the second decision, dated April 30, 2024, the LTB dismissed the Tenant's request for a review.
[2] For the reasons below, the appeal is allowed, and the matter is to be sent back to the Board for a new hearing.
Background:
[3] The Tenant has lived at A-308 Indian Road, Toronto, Ontario, since 2014. The unit is a two-bedroom apartment, owned by Anna Azubalis, a 95-year-old woman, who lives in the unit below with her adult son, John Azubalis, and his family. The unit is rent controlled.
[4] The paint on the bathroom ceiling had been peeling since the Tenant moved into the unit. In 2022, when she became pregnant with her daughter, she sent samples of the paint flakes to be tested for lead, out of a concern for the safety of her soon-to-be-born child.
[5] On July 13, 2022, the test came back positive, for a "high-detection for lead" requiring "extra caution when removing it."
[6] The Tenant spoke to the Landlord's son and provided him with a copy of the report. After some back and forth, the Landlord's son repainted the bathroom.
[7] The Tenant was concerned that the work was not done properly. On August 4, 2022, she had the bathroom tested again, with similar results, which recommended prohibiting children from entering the bathroom, and making sure dust does not accumulate in the house. This time the Tenant called Public Health.
[8] There was some back and forth between the Tenant and the Landlord's son. The Tenant ultimately emailed the Landlord's son, on August 12, 2022, summarizing all that had occurred, and asked for a meeting to discuss remedying the lead paint issue. The Landlord's son was also contacted by Public Health.
[9] The Landlord's son emailed the Tenant, agreeing to meet with her, but insisted the meeting take place in person. That same day, the Landlord signed the eviction notice. The Notice was prepared by the Landlord's son and the Landlord's niece.
[10] At the meeting, the Landlord's son refused to talk about the lead paint issue, and instead served the Tenant with the notice of termination, signed by his mother, advising that the Landlord intended to move her son into the unit.
[11] The Tenant disputed the eviction, submitting that the eviction was in retaliation for the Tenant reporting the matter to Public Health.
[12] The matter was heard on May 3, 2023, and, in an order dated September 19, 2023, the LTB granted the eviction.
[13] The Tenant submitted a request for review. In a decision dated April 30, 2024, the LTB denied the review and confirmed the order.
[14] The Tenant appeals these two orders.
[15] The Tenant has raised the following primary issues on appeal:
(a) Did the Board err in law by applying the wrong test for landlord's own use under s.48(1) of the Residential Tenancies Act ("RTA")?
(b) In the alternative, did the Board breach procedural fairness by relying on hearsay evidence to establish the necessary elements of the test?
(c) Did the Board err in law by ignoring relevant evidence, and basing a material determination on no evidence, in the face of contradictory evidence?
(d) Did the Board err in misapprehending the test for mandatory refusal under s.83(3) of the RTA?
Standard of Review:
[16] Appeals from the LTB are limited to questions of law only. Absent an extricable error of law, the LTB's findings of fact or mixed fact and law cannot be appealed.
[17] Questions of law are reviewable on the standard of correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[18] Questions of procedural fairness are reviewable on the standard of correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at para. 30; Abara v. Hall and Lee, 2022 ONSC 7093 (Div. Ct.), at para. 24.
Section 48(1)
[19] Section 48(1) of the RTA provides that a landlord may terminate a tenancy, if a landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by, (c) a child of the landlord.
[20] The Tenant submits that the Board erred in law because:
(a) in determining s.48(1), they considered whether the Landlord's son genuinely intended to move into the rental unit, and not whether the Landlord had a good faith intention. The Tenant submits that whether the son wished to move into the unit does not answer the question of whether the Landlord gave notice in good faith.
(b) there was no evidence from the Landlord on which the Board could draw its conclusion, and it was therefore an error of law. The Landlord's son and her niece provided testimony. The Landlord did not attend at the LTB hearing.
[21] Starting with the latter issue, the Landlord's son and her niece provided testimony. The Landlord did not attend the hearing. Whether the Landlord herself gave testimony is not determinative of the issue. Further, the Landlord's son's evidence was required to be before the LTB.
[22] The requirement under s.48(1) is whether the Landlord had a good faith intention for her son to reside in the property. The motive in seeking possession is largely irrelevant, however, the Board can consider the conduct and the motives of the Landlord in order to draw inferences as to whether the Landlord desires, in good faith, possession of the rental unit for her son to reside in the property: see Fava v. Harrison, 2014 ONSC 3352, at para. 17.
[23] Section 72(1) of the RTA provides that the Board shall not order eviction unless the landlord has filed an affidavit, sworn by the person who personally requires the rental unit, certifying that the person in good faith requires the rental unit for their personal use.
[24] There is no question that it was important for the Board to determine whether the Landlord's son genuinely intended to move into the unit. The Landlord's good faith would be meaningless if the son did not intend to move into the unit. It is for this reason that the affidavit or evidence from the Landlord's son was mandatory.
[25] In support of the position that there was no evidence upon which the Board could have reached its conclusion that the landlord in good faith required possession of the unit for her son, the Tenant relies solely on the failure of the Landlord to testify. However, a landlord does not necessarily have to testify to succeed under s. 48. There is no reason why, in appropriate circumstances, a landlord’s intention could not be inferred from the evidence of other witnesses. I therefore reject this ground of appeal.
[26] On the first ground of the appeal, I find that the Board confused the test as to whether the good faith intention needed to be that of the Landlord or the Landlord's son, and therefore committed an error of law. The appeal is permitted on this ground.
[27] At the start of the decision the Board identified the Landlord as Anna Azubalis. However, thereafter, they seem to indiscriminately interchange the Landlord and the Landlord's son. In the context of the decision, it cannot be submitted that it was simply a typographical error.
[28] The heading used by the Board after paragraph 6 provides "Does the Landlord's child genuinely intend to move into the rental unit?". In their analysis under this heading, the Board states as follows:
… Rather the issue on an application like this is whether or not the Landlord genuinely intends to move in.
I accept the Landlord's evidence that living in close proximity with so many different individuals has the potential to cause conflict. I accept that the Landlord's require the rental unit for additional space and therefore also find that they have a genuine intention to move in.
[29] In this context, when using the word "Landlord" the Board was really referring to the Landlord's son.
[30] At paragraph 27 of the decision, the Board concludes "I find that it is more likely than not that the application was brought because the Landlord genuinely intends to move in. Although the timing of the events are close in proximity, the Landlord complied with the investigation and corrected the deficiencies." Again, it is the Landlord's son that will be moving in, not the Landlord.
[31] It is unclear from reading the decision whether the Board's analysis on good faith was with respect to the Landlord, the Landlord's son, or both. There may very well have been sufficient evidence before the Board to conclude that the Landlord in good faith required possession of the rental unit for occupation by her son, but the Board's error in law cannot be saved in this case.
[32] It is only in the review decision that the Board turns its mind to whether the Landlord's son was the de facto Landlord.
[33] At paragraph 15 of the review decision, the Board states that "[b]oth the Landlord and her son would fall under the Act's definition of Landlord for the rental unit given that the Landlord's son has acted as agent for the Landlord over the course of the tenancy." The Landlord's son could act as an agent for the Landlord. But this was not dealt with by the Board in their initial decision. The notice was signed by Anna Azubalis and not her son. The Board identified her as the Landlord, and did not address whether the son was or could be considered a Landlord. The decision of the Board seems to interchange the son and his mother as the Landlord, without providing any reason for same or clarifying whether their finding of intent was for the son, his mother, or the son as the Landlord.
[34] This confusion flows through in the Board's decision with respect to s. 83(3), discussed below.
[35] I find that the Board erred in law by determining that the good faith intent of the Landlord's son to move into the unit satisfied the test under s. 48(1) and not that of the Landlord. The decision of the Board in the review decision does not adequately address this error in law.
Section 83(3): Mandatory Refusal
[36] Under s.83(3), the Board must grant relief from eviction if (b) the reason for the application being brought is that the tenant has complained to a government authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards, or (c) the application was brought because the tenant attempted to secure or enforce her legal rights.
[37] Whether there are circumstances that give rise to relief from eviction under s. 83(3) concerns a finding of fact or mixed fact and law and would only rise to an error of law if, for example, the Board failed to consider whether any of the factors set out in s. 83(3) had been met: see for example Jackson v. Capobianco, 2017 ONSC 3324. That is not the case in this appeal. The Board considered the factors set out in s. 83(3) and made a finding of fact that the application had not been brought as a result of the Tenant's complaints.
[38] However, when considered in the context that the Board comingled the intent of the Landlord and the intent of the Landlord's son, the Board's conclusion on s. 83(3) is also confusing. As set out above, when considering s. 83(3), the Board concludes that "I find that it is more likely than not that the application was brought because the Landlord genuinely intends to move in." It is therefore not clear if the factors considered by the Board related to the Landlord or only to the Landlord’s son.
[39] In light of the reasons above, there is no need to address the other grounds of appeal.
Disposition
[40] The appeal is granted. The matter is to be remitted back to the Landlord and Tenant Board for a new hearing..
Costs
[41] As agreed by the parties, the tenant, as the successful party, is entitled to her costs fixed in the amount of $4,350.
“Shore J.”
“I agree S.T. Bale J.”
“I agree Nakatsuru J.”
Released: October 21, 2025
CITATION: Mason v. Azubalis, 2025 ONSC 5770
DIVISIONAL COURT FILE NO.: 323/24
DATE: 20251021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Bale, Nakatsuru, Shore JJ.
BETWEEN:
Jessica Mason
Tenant/Appellant
– and –
Anna Azubalis
Landlord/Respondent
REASONS FOR JUDGMENT
Released: October 21, 2025