Halkiw v. Lavin, 2025 ONSC 6048
CITATION: Halkiw v. Lavin, 2025 ONSC 6048
DIVISIONAL COURT FILE NO.: 198/25
LANDLORD AND TENANT BOARD FILE NO.: LTB-L-056790-24 DATE: 2025-10-27
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WILLIAM HALKIW
Warren Rigby, for the Appellant
Appellant
– and –
DAVID LAVIN
Respondent
Samuel Mason, for the Respondent
HEARD at Toronto (by video conference): September 29, 2025
DECISION ON APPEAL
A.D. KURKE J.:
[1] The appellant landlord William Halkiw appeals against the February 14, 2025 order of the Landlord and Tenant Board (the “LTB”), in which member Carrie Bertrand (the “member”) dismissed the appellant’s application seeking to terminate respondent tenant David Lavin’s tenancy and to have the respondent pay the appellant expenses relating to the respondent’s alleged failure to pay utility costs under the terms of the tenancy agreement.
Background facts
[2] The appellant is the landlord of the tenant respondent at 103-30 Morrow Avenue in Toronto. The building is mixed-use, with nine units. The appellant also resides in the building. The respondent has lived in his two-bedroom, two-bathroom unit (the “unit”) since September 1, 2013. He took the apartment under a commercial lease and renewed it. However, the respondent uses the unit as his residence. He works at a different location, as do other tenants living in the building.
[3] According to the appellant, the unit was always a commercial unit. It has access from the front of the building at grade, making it potentially useful for a storefront. The unit had been leased out and occupied as a commercial unit, with some residential occupation. A CRA audit in April 2012 determined that the unit was one of three commercially rented units for which HST was payable. According to the appellant’s evidence, the units in the building are quite large with an open concept and have facilities to allow commercial businesses to operate.
[4] The respondent brought an earlier tenant application before the LTB which was adjudicated on March 26, 2024 (2024 ONLTB 21142). On that application the LTB held that the Residential Tenancies Act, 2006 (the “RTA”) applied to the unit, because the predominant use of the unit was residential. It therefore ordered that the HST that the respondent had been paying on the rent (some $29,380 over 52 months) must be repaid to the respondent, and HST could no longer be required on the rent.
[5] Nevertheless, along the way, the member hearing that case found that the parties had intended to enter into a lease for the unit for both residential and commercial purposes – as a “live/work” space. This character of the unit had been continued in lease renewals on August 8, 2013 and again in 2017. The building and the unit were zoned for commercial use, and a CRA audit in April 2012 had confirmed that fact.
[6] The very day the HST repayment decision came down on the tenant application, the appellant launched his N13 application, seeking the eviction of the respondent and the conversion of the unit to commercial use. The appellant commented in the application: “residential occupation of the unit is non-compliant with its classification with the CRA and the unit needs to be converted and affirmed to be a commercial unit, with any necessary modifications.” I can see in the record no evidence that there was a commercial tenant waiting in the wings. Indeed, at the hearing of the N13 application, the respondent testified that he believed that the appellant was upset with him because of the successful application that he had made to the LTB.
[7] The appellant’s N13 application set out no modifications to be made to the unit. In the N13 Notice, the appellant stated that “no permits or other authorization are necessary in this case to convert the rental unit or demolish it.” He offered no building permits and no statements from the city’s building department that a permit was not needed to convert the unit to commercial use. He took no steps to get any permits or authorization for the conversion.
The order of the LTB
[8] The member dismissed the appellant’s application. She observed that the appellant offered no detailed renovation plan, time estimates or quotes on his N13 application. The appellant felt that no building permit would be required, and that in its current state the unit could simply be converted to a commercial unit without speaking with the municipality about a permit.
[9] The member found that the landlord failed to obtain, and took no reasonable steps to obtain, the proper permits for the N13 Notice. She held that s. 73 of the RTA had not been complied with and the appropriate permit had not been obtained. Accordingly, the LTB could not grant termination of the tenancy.
[10] Moreover, the member held that the appellant had not proven good faith under ss. 50 and 73 of the RTA. She held, at para. 28 of the order:
“It was apparent that the Landlord wished to reverse the results of the March 26, 2024 order as he did not want the unit to be deemed a residential unit. With the fact that the Landlord served the N13 notice on the date that the Board’s order was received on the Tenant’s application, the Landlord was not acting in good faith.”
[11] In his application, the appellant had also sought compensation from the respondent for unpaid utility charges allegedly owed by the respondent pursuant to the tenancy agreement. Although she acknowledged this issue in the opening of her order, the member made no factual findings, offered no legal analysis, and made no disposition relating to it.
The appeal
[12] The appellant appeals on the bases that:
The member breached procedural fairness by failing to follow the findings in the March 26, 2024 decision of the LTB that: the unit was commercially zoned and that the parties intended the unit for both residential and commercial purposes;
The member erroneously found that the Landlord needed to consult with the municipality and submit additional plans or quotes for conversion, when s. 73(1) of the RTA only requires proof of good faith and that all necessary permits be obtained or that reasonable steps be taken to obtain them. The member erred by requiring the appellant to confirm that no permits were needed, as no permit is required to convert an already commercially-zoned and -permitted unit;
The member erred with respect to s. 73(1)(a) of the RTA, by wrongly inferring that the appellant was not acting in good faith; and
The member erred by failing to rule on the utilities issue.
[13] Section 210 of the RTA permits appeals from orders of the LTB to Divisional Court on questions of law alone. On this appeal, appellate standards apply. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.R. 235. The standard of review on questions of procedural fairness in the context of a statutory appeal is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2002] 2 S.C.R. 220, at paras. 27 and 30.
Conflicting decisions
[14] The appellant complains that the member erred and was procedurally unfair in not referring to and being directed by rulings that had been made in the previous LTB decision that confirmed that the RTA applied to the unit. The appellant points to the findings that the parties had viewed the unit as a commercial space with a live/work occupancy, that it was commercially zoned, and that its commercial character was affirmed in a CRA audit. The appellant argues that the member’s failure to be bound by the decision in 2024 ONLTB 21142 has led to inconsistent factual findings.
[15] The appellant cites the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 131 to support his argument that it is a breach of procedural fairness for a tribunal member to depart from the facts in an earlier decision by the same tribunal. But that paragraph of that decision speaks to the reasonableness of a tribunal departing from principles set out in its earlier jurisprudence without justification. That principle of law, though important, does not assist here.
[16] Whether this issue as argued constitutes a legal error or procedural unfairness is academic in the circumstances of this case. There is no inconsistency. There is no indication in the member’s decision that she disregarded the findings in the earlier decision. She simply had a different issue to decide. Namely, even given that the unit was found by the CRA to be a commercial space, and the original intentions of the parties that it be a commercial space with a live/work use, could it simply be converted to commercial use without any building alterations after so many years of de facto residential use?
[17] The member wanted some assurance that no building permit would be required, an issue for which the unit’s zoning (which the member never mentions) and CRA audit, could offer no assistance. In para. 24 of the order, the member wrote at length about the need for permits and building inspections for new builds and conversions of existing buildings. The member nowhere neglects or finds facts inconsistent with the prior ruling.
[18] The member committed no error with respect to the facts from decision 2024 ONLTB 21142.
The need for permits
[19] The appellant submits that the LTB erred by requiring the appellant landlord to obtain a building permit or statement of exemption as a precondition to the respondent’s eviction, where no permit was legally required to convert the unit for commercial use. On the appellant’s argument, no such requirement exists under s. 73(1)(b) of the RTA, which was misapplied by the LTB.
[20] For the purpose of this argument, it is useful to consider sections 50 and 73 of the RTA, both of which were referred to in the member’s order:
- (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,
(a) demolish it;
(b) convert it to use for a purpose other than residential premises; or
(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.
- (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 50 unless it is satisfied that,
(a) the landlord intends in good faith to carry out the activity on which the notice of termination was based; and
(b) the landlord has,
(i) obtained all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, or
(ii) has taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, if it is not possible to obtain the permits or other authority until the rental unit is vacant.
[21] The appellant argues that the unit was already zoned for commercial use by the municipality and assessed for commercial use by the CRA, so, in fact, no permits or other authority were necessary or required to convert the unit for commercial use. In those circumstances, the appellant submits that he needed to take no steps and needed to produce to the LTB no permits or authority to succeed under s. 73(1).
[22] In support of this proposition, the appellant relies on rulings by the Divisional Court in Chan v. Tralen Investments Ltd, 2023 ONSC 4345 (Div. Ct.) and Boomer v. Arvane Farms Ltd., 2025 ONSC 1772 (Div. Ct.). In those cases, this court upheld decisions by the LTB permitting conversion in the absence of permits. In Chan, the landlord had adduced evidence that no additional permit was required, and that a minor variance to install a wheelchair ramp was not necessary. In Boomer, the land in a mobile home park had already been zoned commercial, and the landlord intended to develop the land commercially. The court agreed with the LTB that nothing further was required. As noted by the Chan court, at para. 14, circumstances in which an administrative decision-maker’s assessment of evidence gives rise to an error of law are limited.
[23] However, those cases are fact-specific, and are different from the circumstances of this case, where the unit, though available for a “live/work” arrangement, had been used only as a residence for more than a decade. In such circumstances, the member might well want evidence that no further building permit or necessary alteration was required to re-establish a commercial character. The permissive “may” in s. 73(1)(b)(i) clearly grants the member a discretion to require the landlord to show that no further permit was required, depending on the circumstances at issue: see, e.g., Noffke v. Deol, 2024 ONSC 5387 (Div. Ct.), at para. 22.
[24] But that does not end the inquiry in this case. In a section of her order titled “The Law”, the member added at paragraph 20:
“The section of the Act is clear that a landlord’s application may not succeed if a building permit is not required to do the repairs or renovations. Thus, the Board may not terminate a tenancy where permits are unnecessary.”
[25] The parties agree that this paragraph in the decision refers to s. 50(1)(c) of the RTA. That provision is an alternative reason for demanding vacant possession, one for which extensive renovations are required to convert a residence, a reason not relied upon by the appellant in the circumstances of his N13 Notice.
[26] The respondent concedes that para. 20 in the order is “not relevant to the case”, but argues that “the order, when read as a whole, reflects that the [member] understood that in this case, the Landlord could have proceeded with better evidence about why a conversion permit was not required”. The respondent submits that decisions of administrative tribunals must not be assessed against a standard of perfection: Vavilov, at para. 91. While that paragraph of Vavilov speaks to not requiring a tribunal to provide the fulsome reasons expected from a court, it does not excuse a tribunal which has misdirected itself on the applicable law.
[27] If the member rejected the appellant’s N13 Notice because she exercised her discretion to require proof that no permit was required for the conversion, she was acting within the discretion accorded her by the RTA. In paras. 25 to 27 of the order, the member explained that, although the appellant stated in the N13 Notice that he would be converting the unit for commercial use “with any necessary modifications”, he had offered no conversion plans, time estimates, or quotes. He made no attempt to find out about potential conversion permits. He did nothing but rely on the CRA classification. This reasoning could reasonably support the member in exercising her discretion to require some showing that no permit would be necessary for the conversion. Why should a tenant be evicted from his home just on a point of principle for the landlord?
[28] However, if the member fettered her discretion to require a permit because she erroneously believed she had to apply s. 50(1)(c) of the RTA, that would be error: Soe v. Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 1201, at para. 18. Section 50(1)(c), with its mandatory wording for situations requiring extensive renovation, did not apply to this situation. The member continues on in para. 21 of the order, “In the event that building permits are in fact required, subsection 73(1)(b) of the Act states that the Board shall not terminate a tenancy unless the landlord has obtained in advance all necessary permits or other authority”, before concluding that appellant had not done so. The member may well have instructed herself erroneously on the applicable provision of the RTA.
[29] In her legal analysis, it is unclear whether the member erroneously instructed herself to rely on the mandatory provisions of s. 50(1)(c), or whether she properly relied on the discretion accorded her by the RTA. In such circumstances I cannot say that the member’s conclusion on this point is correct.
Good faith by the landlord
[30] The appellant submits that the evidence before the LTB demonstrated that he had consistently intended to lease the unit for commercial purposes, including a permissible live/work occupancy under the applicable zoning bylaws.
[31] The respondent early on decided to use the space for residence alone. Regardless of the appellant’s sense of frustration about this fact, the respondent was ultimately successful in his bid to have the RTA apply to the tenancy in 2024 ONLTB 21142. The same day as that decision came down, the appellant served his N13 Notice to evict the tenant, on the basis that “the [appellant] is entitled to structure lease arrangements consistent with the lawful uses permitted under the applicable zoning by-laws.” On the appellant’s argument, bad faith cannot be found in the attempt to vindicate his right. The appellant argues that the member’s finding could only be based on the timing of the N13 Notice and an irrational inference, which constitutes legal error: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52, at paras. 24-25.
[32] Section 73(1)(a) of the RTA prohibits the LTB from granting an application for eviction unless the LTB is satisfied that the landlord intends in good faith to carry out the activity in the Notice. Section 202 of the RTA requires the LTB to “ascertain the real substance of all transactions and activities relating to a residential …rental unit and the good faith of the participants and in doing so may disregard the outward form of a transaction…and may have regard to the pattern of activities relating to the … rental unit.”
[33] The member recited these provisions in her order at paras. 22-23, in holding that the N13 Notice was made because, “the [appellant wished to reverse the results of the March 26, 2024 order as he did not want the unit to be deemed a residential unit” (para. 28). The requirement for good faith requires that a landlord prove that the conversion will actually take place, and for the right reason: Simmons v. Burglund, 2024 NSSC 400, at para. 44; Fava v. Harrison, 2014 ONSC 3352 (Div. Ct.), at para. 17. Thus, in Boomer, at paras. 35-41, the landlord had proved its good faith by showing its intention to close a mobile home park and lease the space to a specific business for commercial use.
[34] In the circumstances of this case, the appellant’s announced purpose was just to undo the determination that had been made by the LTB in 2024 ONLTB 21142 which necessarily, as the member noted at para. 22, also involved evicting the tenant. No permits or plans demonstrated that there was a commercial tenant in the wings waiting to lease the unit. The member could properly hold that the appellant’s decision to evict a tenant who that very day had achieved the protections offered by the RTA was not made in good faith, especially given the timing of the application. The appellant’s clear effort here to undo the respondent’s success stands as a bar to eviction under the legislation: RTA, s. 83(3)(c); Loc Le v. O’Grady, 2018 ONSC 6387 (Div. Ct.), at paras. 17-20.
[35] No appeal lies from the member’s factual finding that the N13 Notice was not given in good faith, which was properly arrived at. This ground of appeal fails.
Utilities appeal
[36] Lastly, the appellant complains that the member never ruled on the outstanding utilities charges allegedly owed by the respondent. As noted by the respondent, however, this issue was never raised or referred to in the appellant’s Notice of Appeal.
[37] The member described this issue in the preamble to her order of February 14, 2025 as follows: “the Landlord also applied for an order requiring the Tenant to pay the Landlord’s reasonable out-of-pocket expenses that are the result of the Tenant’s failure to pay utility costs they were required to pay under the terms of the tenancy agreement.”
[38] The term in the handwritten lease requires the payment of “1/9 of exterior common electrical and H2O + sewage for suite – calculated annually – May of each year – max $500 yearly –”. So far as I can see, no bills for these items were included to support a list of outstanding expenses that was apparently assembled by the appellant and found at Tab 13 of his Exhibit Book. There are mere passing references to expenses owing in the transcript of the LTB hearing at Tab D in the Appeal Book. It is unclear to me even what amounts are properly claimed by the appellant as owing by the respondent.
[39] The Rules of Civil Procedure limit argument and relief on appeal to what is set out in the Notice of Appeal, except with leave of the court hearing the appeal: Rules of Civil Procedure, R.R.O. 1990, Reg 194, Rule 61.08; Manafa v. Tannous, 2023 ONSC 6552 (Div. Ct.), at para. 32; Markowski v. Verhey, 2020 ONCA 472, at paras. 20-25.
[40] I agree with the respondent’s assessment that: “[t]he Board had no testimony or arguments in order for it to make a determination on this issue.” Success on appeal in relation to this issue would require that this matter be remitted back before the LTB to reconsider, when it appears to have been poorly advanced at first instance. That would create an unfairness to the respondent, who was successful on the real issue under appeal here.
[41] In such circumstances, I refuse leave for this issue, which was not advanced in the Notice of Appeal, to be considered on the appeal.
Conclusion
[42] The appeal is dismissed.
[43] Although the member erred in law on the issue of the appellant’s failure to have a permit, she committed no other error in refusing the eviction of the respondent. The unimpeachable factual finding that the appellant did not show good faith in the N13 application is dispositive, and the appeal relating to the eviction is dismissed. The ground of appeal involving utilities is not properly before this court and is dismissed.
[44] On agreement of the parties as to the quantum of costs to the successful party, the appellant shall pay $8,113.40 costs, all inclusive, to the respondent.
Date: October 27, 2025 ______________________________ A.D. Kurke J.
CITATION: Halkiw v. Lavin, 2025 ONSC 6048
DIVISIONAL COURT FILE NO.: 198/25
LANDLORD AND TENANT BOARD FILE NO.: LTB-L-056790-24 DATE: 2025-10-27
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WILLIAM HALKIW
Appellant
– and –
DAVID LAVIN
Respondent
DECISION ON APPEAL
A.D. Kurke J.
Date of Release: October 27, 2025