Court File and Parties

CITATION: Steubing v. Drewlo Holdings Inc., 2025 ONSC 6481

COURT FILE NO.: DC-25-2

DATE: 2025/11/21

SUPERIOR COURT OF JUSTICE-ONTARIO

DIVISIONAL COURT

RE: DALE STEUBING and CATHERINE STEUBING, Appellants

AND:

DREWLO HOLDINGS INC., Respondent

BEFORE: Gibson J.

COUNSEL: Joel Yinger and Ashley Schuitema, Counsel for the Appellants

Kevin Lundy, Counsel for Respondent

Anna Solomon, Counsel for the Landlord and Tenant Board

HEARD: October 15, 2025

DECISION ON APPEAL

Overview

[1] This appeal, brought by the Appellants, Dale Steubing and Catherine Steubing, (“the Appellants”) relates to the residential rental unit located at 1802 - 435 Wilson Avenue, Kitchener, Ontario (the “rental unit”). The Respondent, Drewlo Holdings Inc., is the Appellants’ landlord relative to this tenancy.

[2] The appeal is from a Motion to Set Aside Order made by Brian Delorenzi, a Member of the Landlord and Tenant Board (the “LTB”) in File LTB-L-074426-24-SA, issued November 27, 2024 (the “Set Aside Order”). The Set Aside Order terminated the tenancy between the Respondent and the Appellants.

[3] The Appellants requested a review of order LTB-L-074426-24-SA. On December 16, 2024, Member Fabio Quattrociocchi denied the Appellants’ review request in order LTB-L-074426-24-SA-RV (the “Review Order”).

[4] The Appellants appeal both orders to the Divisional Court. They submit that: the LTB breached procedural fairness by failing to provide Mr. Steubing with an adequate opportunity to meaningfully participate in his hearing, and by denying him the assistance of Duty Counsel to make submissions; that the LTB breached procedural fairness by failing to provide a recording of all of the hearing; the LTB erred in law by failing to comply with its mandatory duty under s.78(11)(b) of the Residential Tenancies Act 2006, S.O. 2006, c.17 (“RTA”) to consider “all the circumstances” before ordering an eviction; and that the LTB failed to comply with its statutory duty by not properly exercising its discretion within the RTA’s remedial, tenant-protection focus.

[5] The Appellants ask that this Court rescind and set aside the Set Aside Order and the Review Order and set aside the eviction order; or, in the alternative, rescind the Set Aside Order and the Review Order and remit the matter back to a differently constituted panel of the LTB for determination in accordance with the opinion and directions of this Court.

[6] The Respondent resists the appeal and asks that it be dismissed. It denies that there was a breach of procedural fairness.

[7] The LTB takes no position on the merits of the appeal, but made submissions on the law which it says applies in this context.

[8] These Reasons explain why the appeal will be dismissed.

Background

[9] The Appellants both suffer from significant health issues. Mr. Steubing is 60 years old and suffers from recurring cancer and chronic back pain. Mrs. Steubing is 67 years old and lives with a permanent ostomy bag and requires a variety of mobility aids including a walker and a scooter.

[10] The Respondent applied for orders to terminate the tenancy and evict the Appellants because they did not pay the rent that they owed (the “L1 Application”) and because they have persistently failed to pay the rent on the date that it became due and payable (the “L2 Application”). The monthly rent of $1,745.72 is due on or before the first day of the month.

[11] These applications were heard by videoconference on April 11, 2024. On that date, the parties agreed to terms on before the LTB, which resulted in an order issued April 26, 2024 (the “Consent Order”). The Consent Order included a schedule for the Appellants’ repayment of the accumulated rent arrears and ongoing rent for the duration of the order. The schedule for arrears repayment and payment of the full monthly rent on the first of the month included a provision that if any payments were missed, the Respondent could apply to the LTB, ex parte, for an order terminating the tenancy. Specifically, pursuant to paragraph 4 of the Consent Order, the Appellants agreed to “pay the new rent on time and in full as it comes due and owing starting July 1, 2024, until June 30, 2025.”

[12] The Appellants failed to meet a condition specified in the order issued by the LTB on April 26, 2024, with respect to application LTB-L-002400-24. Specifically, the Appellants failed to pay the lawful rent due by September 1, 2024. As a result, the Respondent applied under subsection 78(1) of the RTA for an order to terminate the tenancy and evict the Appellants because they did not meet a condition specified in the prior order (the “L4 Application”).

[13] The Respondent’s L4 Application was resolved by ex-parte order LTBL-074426-24, issued on September 26, 2024, which terminated the tenancy. The Appellants filed a motion to set aside the order issued on September 26, 2024.

[14] The videoconference hearing for the Appellants’ motion was heard on November 19, 2024. The Appellant Dale Steubing and a paralegal legal representative for the Respondent attended the hearing. Prior to the start of the hearing, the parties advised the hearing Member that they had reached an agreement and were prepared to propose an order on consent involving a non-voidable order of termination effective April 30, 2025, conditional on prompt payment of the monthly rent for December 2024 through March 2025. However, when the Hearing Member asked Mr. Steubing if he agreed to the proposed terms and understood that he was waiving his right to a hearing, Mr. Steubing twice stated that had “no choice” but to agree to the Respondent’s terms. Not satisfied that Mr. Steubing understood the consequences of waiving his right to a hearing, the Hearing Member stood the matter down to allow him to consult with Tenant Duty Counsel regarding the potential consent order.

[15] In the interim, the Hearing Member addressed unrelated matters. A recording of the proceedings was available only to this point. No recording is available for the subsequent portion of the proceedings.

[16] After speaking with Tenant Duty Counsel, Mr. Steubing advised that he would like to proceed with the contested hearing. As Tenant Duty Counsel remained in the virtual hearing room, the Hearing Member confirmed that Duty Counsel was present for support rather than to represent Mr. Steubing at the hearing.

[17] Mr. Steubing acknowledged that he paid the monthly rent due September 1, 2024, on September 3, 2024, but explained that he did not pay the rent on September 1, 2024, because he did not want to incur a $17.50 charge imposed by the Respondent’s online payment processor. Since banks were closed September 1 and September 2, 2024, he attended at the bank on September 3, 2024, to explore alternative payment options. Because the only other option open to him was a bank draft, he ultimately chose to incur the $17.50 fee and paid the rent via Respondent’s online website. He further explained that although he paid the rent on the third day of the month, due to the bank closures, the Respondent would have received the funds on the first business day of the month so in his view, the delay would have had no effect. He further noted that had the Respondent not previously withdrawn the option of taking pre-authorized payments from his account, it would have been paid on time. The Respondent had withdrawn this payment option in September 2023 in response to the Appellants’ lengthy history of late payments and arrears dating back to 2018.

[18] After both parties had concluded their closing submissions, Tenant Duty Counsel requested an opportunity to add something. The Hearing Member refused this request on the basis that all evidence and submissions had been completed and reminded Tenant Duty Counsel that he had chosen to attend the hearing as support rather than as an advocate.

[19] As Mr. Steubing acknowledged having breached the prior order, the only issue before the Hearing Member was whether, having regard to all the circumstances, it would not be unfair to set aside the order pursuant to subsection 78(11) of the RTA. The Hearing Member considered Mr. Steubing’s explanation for the late payment, as well as the history of late and non-payments as described by the Respondent’s legal representative:

The Act is remedial legislation and the courts have determined that evicting a tenant is a remedy of last resort. Ordinarily, the circumstances in this case would lead to the Tenant’s motion being granted. However, I find the Tenant’s consistent history of missing rent payments cannot be ignored.

The Tenant has been before the Board six times since 2018 for non-payment of rent or persistently late payment rent. The Tenant has also previously breached a Board order in 2021 which was set aside by order SWL-50739-21-SA issued June 10, 2021.

[20] The Hearing Member considered all of the circumstances and found that it would be unfair to set aside order LTB-L-074426-24, issued on September 26, 2024. He found that the circumstances instead warranted a delay in lifting the stay of that order to February 28, 2025.

[21] The Appellants requested a review of the order issued on November 27, 2024, using the LTB’s internal review request process. The basis of the Appellants’ request to review was that the order contained a serious error. Specifically, the Appellants alleged that the Hearing Member mischaracterized the history between the parties and ignored the Appellants’ own account of that history, which included serious health and safety issues. The Appellants also alleged that they were not reasonably able to participate in the proceeding because the Hearing Member failed to actively solicit evidence from Mr. Steubing with respect to all of the circumstances of his relationship with the Respondent and refused to allow submissions from Tenant Duty Counsel, who had offered to assist.

[22] A preliminary review of the Appellants’ request was conducted without a hearing. The Reviewing Member, Fabio Quattrociocchi, was not satisfied that there was a serious error in the order or that a serious error occurred in the proceedings or that the Tenants were not reasonably able to participate in the proceeding and denied their review request, confirming the order issued on November 27, 2024.

[23] On January 16, 2025, the Appellants filed this appeal of the Set Aside Order of Member Delorenzi issued on November 27, 2024 and the Review Order of Member Quattrociocchi, issued on December 16, 2024.

Issues

[24] The issues before the Court on this appeal are:

Issue I: What is the Court’s jurisdiction on an appeal from the LTB and what is the applicable standard of review?

Issue II: Do the Set Aside Order or the Review Order contain errors of law?

Issue III: Were the Appellants denied procedural fairness?

Issue I: The Court’s Jurisdiction on Appeal from the LTB and the Applicable Standard of Review

[25] The statutory appeal provisions at s.210(1) of the RTA limit appeals of Board orders to the Divisional Court to questions of law alone. Only questions of law may be appealed to the Divisional Court. The Divisional Court has affirmed on a number of occasions that it does not have the jurisdiction to hear an appeal from a Board order involving a question of fact or mixed fact and law: Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at para. 33.

[26] The distinction between questions of law, fact, and mixed fact and law was explained in Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 35, as follows: 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.

[27] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada held that appellate standards of review are applicable to administrative decisions that provide for a statutory appeal. Questions of law arising from Board decisions are reviewable on the standard of correctness.

[28] Consistent with the Supreme Court of Canada’s direction in Vavilov, in order to respect institutional choices and clear statutory language, the Court must exercise caution in characterizing the nature of the legal question to ensure that the correctness standard of review is not applied to the Board’s assessment of evidence, findings of fact, and determinations of mixed fact and law. The Court of Appeal for Ontario in London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] 167 O.A.C. 120 (ONCA), at para. 10, addressed the standard of review for questions of procedural fairness: a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this 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.

[29] In summary, this Court has jurisdiction to hear an appeal of an order of the Board. The parties have a right of appeal on questions of law alone. There is no right of appeal from findings of fact, or findings of mixed fact and law that do not give rise to an extricable question of law. The standard of review on questions of law is correctness.

Issue II: The Orders Contain No Errors of Law

[30] The Appellants ask this Court to consider additional evidence. I have done so. However, even considering this additional evidence, I am satisfied that the Appellants received a reasonable opportunity to participate. Mr. Steubing was present at the hearing and consulted with Tenant Duty Counsel several days before the hearing date and immediately before proceeding with the hearing. He had a reasonable opportunity to present evidence, cross-examine the Respondent’s representative and provide closing submissions on why he believed the ex parte order should be set aside. He had already provided closing submissions when Tenant Duty Counsel requested an opportunity to make a comment in addition to those final remarks.

[31] If Duty Counsel had not observed the hearing after providing summary advice, Mr. Steubing would have closed his case upon the completion of his submissions. There would have been no basis to suggest that the submissions by him were incomplete or inadequate. After completing his own submissions, he did not notify the Hearing Member that Duty Counsel intended to supplement his own comments and there was no indication that he intended Duty Counsel to add any further submissions. At the outset of the hearing block, observers are routinely cautioned not to address the adjudicator, or they may be removed from the hearing. At the time that Tenant Duty Counsel attempted to comment on the proceedings, he had assumed the role of an observer and had no standing to offer submissions.

[32] The LTB’s Practice Direction on Representation before the Landlord and Tenant Board makes provision for a support person that distinguishes this role from representatives or witnesses as follows:

Support Persons

A support person, such as a family member, friend or social worker, may attend a hearing or mediation with a party or witness to sit with and assist the person participating in the proceeding. Such a support person is not considered a representative, so long as they do not make submissions on the party's behalf. If a party wants their support person to testify at the hearing, they should inform the LTB at the beginning of the hearing. If a support person is testifying, they may be considered a witness and may be excluded from the hearing until they testify.

[33] If Mr. Steubing had intended the Tenant Duty Counsel to provide submissions on his behalf at the hearing, procedural fairness required him to make this intention clear at the start of the hearing. Having elected to attend the hearing as a support person, to allow Duty Counsel to assume the role of representative only after the Respondent had provided closing submissions would unduly prejudice the Respondent. If Mr. Steubing had something to add, he could have asked for the matter to be held down and briefly consult with Duty Counsel before proceeding.

[34] As the Reviewing Member noted, Duty Counsel had no standing to intervene in the proceedings and the Hearing Member was correct to deny any comments made by this third party. Section 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) confirms that the LTB has the right to control its own proceedings and may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

Issue III: The Tenant was Not Denied Procedural Fairness

[35] A review will be dismissed unless the LTB is satisfied that the new evidence could not have been produced at the original hearing, is material to the issues in dispute and its consideration could change the result: Palmer v. The Queen, 1979 8 (SCC), [1980] 1 SCR 759, page 775; Spirleanu v. Transglobe Property Management Service Ltd., 2015 ONCA 187, at para. 2.

[36] As Mr. Steubing acknowledged that he had failed to comply with a term of the prior order, the only issue before the hearing adjudicator was whether, having regard to all the circumstances, it would not be unfair to set aside the prior order or make an order lifting the stay of the order effective immediately or on a future date specified in the order. The Appellants therefore had a reasonable opportunity to participate in the hearing as they received a reasonable opportunity to make provide submissions on whether the adjudicator should exercise this discretion.

[37] The Appellants submit that the LTB had a proactive obligation under subsection 83(2) to inquire into the circumstances relevant to whether it should order an eviction or impose another conditional order. To that end, the Appellants emphasize the wording of subsection 83(2), which states that the LTB “shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1)”.

[38] Although functionally similar to section 83, the provision of the RTA that governed the hearing Member’s options on the Appellants’ motion was subsection 78(11) of the RTA, whose mandatory language limited the Hearing Member as follows:

78 (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if any of the criteria set out in subsection (1) are not satisfied;

(b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6); or

(c) make an order lifting the stay of the order under subsection (6), and any order made under subsection (7) or (7.1), effective immediately or on a future date specified in the order.

[39] As there was no dispute that the Appellants had failed to pay the monthly rent on or before September 1, 2024 contrary to the Consent Order and that the Respondent was statutorily entitled to file the L4 Application pursuant to subsection 78(1) of the RTA, the Respondent submits, and I agree, that the Hearing Member had no authority to set aside the eviction order pursuant to paragraph (a). This left only the question of whether the Hearing Member should exercise his discretion under paragraphs (b) or (c) in light of all of the circumstances disclosed.

[40] The Reviewing Member correctly disagreed that the Hearing Member had failed in this obligation. The order indicates that the Hearing Member considered that the Appellants may require additional time to obtain new accommodations within their budget to pay in full and on time and specifically noted the remedial purpose of the legislation. Moreover, the Hearing Member otherwise gave Mr. Steubing ample opportunity to present his case. Further, in the order, the Hearing Member expressly referred to subsection 83(2), stating that he had “considered all of the disclosed circumstances in accordance with subsection 83(2) ...” The Hearing Member also delayed lifting the stay of the prior order to February 28, 2025, over three months after the date of the order. Postponing the eviction demonstrates that the Hearing Member had indeed turned his mind to the Appellants’ circumstances.

[41] This ground of appeal therefore fails.

[42] The LTB did not fail to consider all the circumstances. Rather, the Hearing Member considered the Appellants’ circumstances but found that it was not appropriate to grant relief from eviction given that the same economic circumstances existed at the time of past orders. The LTB was entitled to take into account that the Appellants had entered into an agreement in which they committed to pay the rent on or before the date that it was due, despite the length of the tenancy and other circumstances not disclosed at the hearing on November 19, 2024. While the Appellants may have relied upon health conditions at earlier proceedings before the LTB, on November 19, 2024, Mr. Steubing “testified honestly and candidly and makes no excuses for his inconsistent payment history.” In other words, although submissions on his medical difficulties may have been relevant to the Member’s consideration of all of the circumstances, Mr. Steubing voluntarily chose not to raise these issues at the hearing and instead focus on the technical aspect of the breach as a valid strategic decision.

[43] The Appellants submit that the LTB ought to have been more empathetic to the Appellants in a situation where there was a technical breach of the prior consent order, but where they had ultimately paid the missed rent two days later. It is not the role of this Court to interfere in the LTB’s exercise of discretion, absent an error of law. While the Appellants disagree with the LTB’s decision in the context of all the circumstances, they have not identified an error of law that should lead to this Court’s intervention. That the Appellants did not like the outcome, does not make it an error of law.

[44] In addition, although the prior breaches of prior orders were not directly relevant to the late payment that prompted the Respondent to apply for termination, the Appellants’ past history of failed consent orders was relevant as “all of the circumstances” on the issue of whether it would not be unfair to set aside the ex parte order despite the subsequent full payment.

[45] The hearing adjudicator considered all of the circumstances as required by subsection 78(11) to determine whether to exercise that discretion. “All of the circumstances” necessarily includes circumstances that do not assist the Appellants, but may instead militate against setting aside the prior order. As a result, the submissions from the Respondent’s legal representative on the Appellants’ past history of breached conditional orders was relevant to the proper exercise of that discretion.

[46] The LTB reasonably exercises its discretion to refuse to grant relief from eviction where the ongoing conduct of a tenant suggests that such conduct is unlikely to change. There is no basis for this Court to intervene in such circumstances. The decision to deny the motion on a proper exercise of discretion is not a denial of procedural fairness.

[47] If information that the Tenant Duty Counsel intended to add related to the Appellants’ medical conditions, this would logically relate to postponing lifting the stay of the prior order, not setting it aside since the balance of the evidence indicated that the Appellants “have struggled to pay their monthly rent over the last six years, which has resulted in six applications being filed to the Board.” Mr. Steubing made no submissions or representations before the Hearing Member that the Appellants’ medical conditions impaired his ability to participate in the proceedings.

Lack of a recording of the proceedings

[48] The LTB’s Rules of Practice contemplate that hearings will be recorded "if circumstances permit" and that "most LTB hearings will be recorded." Notwithstanding this, the hearing in this case was not recorded and no transcript can be obtained.

[49] Courts have repeatedly expressed concern about the failure of the LTB to record its hearings. No explanation has been provided by the LTB for the failure to produce a record of the hearing in this case. However, the failure to provide a recording is not, by itself, a breach of procedural fairness: Saunders v. Nkemdirim, 2018 ONSC 6642, at para. 40; Collett v. Piasecki, 2005 36465 (ON SCDC), at para. 4.

[50] There is no statutory or common law requirement for a tribunal to produce a recording of its proceedings capable of generating a full transcript. But, if there is no transcript, and proper appellate review is compromised, this can be the basis for the reviewing court to order a new hearing. However, as the Hearing Member accurately summarized the evidence and made clear findings of fact based upon that evidence, full appellate review is possible notwithstanding the absence of complete hearing recording: Billion v. Vaillancourt, 2016 ONSC 5820, at para. 7.

[51] In the present case, the ability of the Court to review the decision is not undermined as there is an adequate record of what occurred before the LTB after the recording ended and no dispute that Duty Counsel asked to add something after the parties had concluded their submissions. The lack of a transcript only makes it impossible to consider the merits of an appeal where there is inadequate factual analysis in the reasons to compensate for the lack of a transcript. In the present case, the Hearing Member provided detailed and sufficient reasons for denying the Appellants’ motion.

Conclusion

[52] The LTB made findings of fact and mixed fact and law to conclude that the Appellants breached a condition of a previous consent order, which required the Appellants to pay their rent on time. The LTB exercised its discretion under s.78(11) of the RTA to deny the Appellants’ motion to set aside the eviction order that resulted from their breach. After considering all the surrounding circumstances, the motion Member found it would be unfair to set aside the eviction order. The Member exercised their discretion to postpone the lifting of the stay order. The Appellants requested a review of the motion order, which was denied without a hearing being held.

[53] The adjudication of disputes under the RTA is the core function of the LTB. Appeals from the LTB’s decisions 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. Questions of law arising from the LTB’s decisions are reviewable on the standard of correctness. The LTB is entitled to deference on matters requiring an exercise of discretion. The level, or content, of procedural fairness is a flexible and variable standard which requires a contextual analysis to assess the adequacy of procedural fairness. There is no standard of review analysis for an allegation of a breach of procedural fairness. Evaluating whether the duty of procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation. Where procedural fairness is at issue, the question is not whether the substance of the decision was correct or reasonable, but rather whether the decision-making procedure was fair having regard to all the circumstances: Afolabi v. Law Society of Ontario, 2025 ONCA 257, at paras. 59 - 61. I conclude that, in the circumstances of this case, it was.

[54] Gaps in the recordings of hearings do not result in a breach of procedural fairness unless there is a serious possibility that the appellant was deprived of a ground of appeal: Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 386 (SCC), [1997] 1 S.C.R. 793 at paras. 77, 81 - 84. That is not the case here.

Order

[55] The appeal is dismissed.

Costs

[56] As counsel confirmed on the oral hearing of the appeal that no party seeks costs, none will be ordered.

M. Gibson J.

Date: November 21, 2025