CITATION: Browne v. Henley Crescent, 2026 ONSC 455
DIVISIONAL COURT FILE NO.: 421/25
DATE: 20260204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and O’Brien JJ.
BETWEEN:
Ricky Browne and Denise Browne
Appellants
– and –
Henley Crescent
Respondent
Karen Andrews and Katherine Haist, for the Appellants
Kevin F. Lundy, for the Respondent
Anna Solomon, for the Landlord and Tenant Board
HEARD at Toronto: January 5th, 2026
H. Sachs J.
Overview
[1] Denise Browne is married to Ricky Browne. They have two children. They have resided together in a rental unit since 2012. In September of 2023, Ricky Browne was removed from the unit following police involvement in a domestic violence incident.
[2] Ricky Browne is the only named tenant on the lease. Five months after leaving the unit, Mr. Browne signed a notice to end the tenancy. According to him his intention was to end his obligations under the tenancy, not to terminate Ms. Browne’s rights under the tenancy. On the basis of this notice Henley Crescent (the “Landlord”) obtained an ex parte eviction order from the Landlord and Tenant Board (the “Board”).
[3] Ms. Browne moved to set aside that order. After a hearing the Board decided that Ms. Browne was a tenant and could remain in the unit (the “Set Aside Decision”). The Landlord applied for a review of the Set Aside Decision, which was granted. Another hearing was held and Ms. Browne was evicted (the “First Review Decision”). Ms. Browne applied for a review of the First Review Decision, which was unsuccessful (the “Second Review Decision”). This is an appeal from the First and Second Review Decisions.
[4] For the reasons that follow I would allow the appeal and set aside the First and Second Review Decisions. I would restore the findings in the Set Aside Decision that Ms. Browne is a tenant and, therefore, entitled to remain in the unit.
Factual Background
[5] The facts are largely undisputed. As set out in the Set Aside Decision, Denise Browne has lived in the rental unit at 60 Henley Crescent, Etobicoke, since 2012. She and Ricky Browne moved into the unit just after they married. They had two children together who continued to reside in the unit. Ms. Browne was present when the lease was signed and, according to Mr. Browne, the only reason she did not sign the lease as a tenant was because she did not have any credit.
[6] Ms. Browne signed the parking schedule attached to the lease as a tenant. She has been the main point person for the family in dealings with the Landlord in terms of maintenance requests. The rent for the unit was paid from her and Mr. Browne’s joint account and after Mr. Browne vacated the unit in 2023, Ms. Browne paid the rent for the unit through a portal set up by the Landlord. She had complete access to all three buildings in the complex in which the unit was located and had access to the Tenant Portal.
[7] Ms. Browne and Mr. Browne separated because Ms. Browne was the victim of domestic violence. After their separation the children remained with her in the unit.
[8] On February 14, 2024, five months after leaving the unit, Ricky Browne sent the Landlord a Tenant’s Notice to Terminate the unit. It had a termination date of April 30, 2024. On February 16, the Landlord accepted Mr. Browne’s notice of termination. On February 26, 2024, the Landlord advised Ms. Browne that it considered her an occupant and not a tenant and that she could apply to become a tenant at the current market rent, which was more than double her current rent.
[9] On the basis of this notice the Landlord obtained an ex parte order from the Board evicting the tenant on March 1, 2024. Mr. and Ms. Browne filed a motion to set aside this order prior to the termination date named in the notice of termination.
[10] In the Set Aside Decision, after hearing testimony from Mr. Browne, the Board accepted that Mr. Browne regarded Ms. Browne as a tenant of the property and that he did not intend to terminate her tenancy when he signed the notice to terminate. He only sent in the notice because he wished to terminate his responsibilities under the tenancy agreement.
[11] In the Set Aside Decision dated June 5, 2024, the Board granted Mr. and Ms. Browne’s request to set aside the ex parte eviction order. It did so after referencing the broad definition of “tenant” under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”), the fact that the Act is intended to be remedial legislation with a tenant protection focus, and the direction in s. 202 of the Act to the Board to ascertain the “real substance” of all transactions and activities relating to a residential complex. It then found that on the basis of all the circumstances that Denise Browne was a tenant and not an occupant. The Board also found that, considering all of the circumstances, it would not be unfair to set aside the eviction order.
[12] The Landlord applied to review the Set Aside Decision on the basis that there was a serious error in the decision. On August 29, 2024, another Board member agreed that the Set Aside Decision contained a serious error and that there was no basis for concluding that Ms. Browne became a tenant. As put by the Board member at the hearing:
So my thinking in reading this order is this is the kind of order I will issue if I got emotionally involved and wanted an expected end, so and that end would be, oh, my goodness, this lady has lived in this unit from the start of the tenancy. It has been such a long time. She has children. There is domestic violence, and the partner decides to leave, terminates the tenancy.
Where is she going to go? Difficult to find a place, and so with all of that in mind, I kind of bend myself into a pretzel and decide an occupant can become a tenant just because she has lived in the unit for this amount of time and has paid rent on behalf of the tenant. I think there is a serious error in this order.
[13] After making this finding the Board proceeded to hear the motion to set aside the ex parte eviction order on a de novo basis.
[14] On January 3, 2025 the Board issued the First Review Decision where, it found on essentially the same facts as were found in the Set Aside Decision that Ms. Browne was an “occupant” rather than a tenant. As put in para. 6 of that decision:
Based on all the evidence, I am satisfied that the LTB erred in finding that the Occupant is a Tenant simply because she has lived in the unit from the start of the tenancy; that the Tenant served the N9 notice only with the intention of severing his liability with respect to the tenancy; and that based on s.83 of the Act, the Occupant could remain in the unit because she intends on taking on the responsibilities of the Tenant. [Emphasis in original removed.]
[15] Ms. Browne requested a review of the First Review Decision and on May 1, 2025 the Board issued the Second Review Decision dismissing that request.
Jurisdiction and Standard of Review
[16] Subsection 210(1) of the Act grants this court jurisdiction to hear an appeal from the Board on a question of law.
[17] There is no dispute that questions of law are reviewed on a standard of correctness. Procedural fairness is a question of law that is also reviewed on a correctness standard in the context of a statutory appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220.
Analysis
Position of the Parties
[18] Ms. Browne submitted that the First and Second Review Decisions erred in law as follows:
(1) The First Review Decision exceeded its jurisdiction in conducting a review in the absence of a serious error in the Set Aside Decision.
(2) The First and Second Review Decisions erred in law by ignoring the broad nature of the definition of “tenant” in the Act. According to Ms. Browne, the legislature made a deliberate choice to bring as many people as possible within the ambit of a piece of remedial legislation designed to have a tenant protection focus.
(3) The First and Second Review Decisions erred in failing to correctly determine the “real substance” of the transactions and activities in relation to the residential unit. In particular the First Review Decision erred when it found that “an implied tenancy could not have been created with the Occupant when there was an actual written tenancy agreement in place” and it erred in its consideration of Mr. Browne’s conduct in giving notice. The evidence was clear that Mr. Browne was mistaken as to the effect of his notice. The doctrine of mistake should have been applied to vitiate his notice, especially since the Landlord became aware of the mistake before the date provided for termination in the notice.
(4) The Tribunal erred in law in its interpretation of O. Reg. 516/06, s. 3(2) (the “Regulation”). That provision takes effect as soon as the tenant vacates a rental unit that is a principal residence without giving a notice of termination. In other words, when Mr. Browne vacated the rental until without giving notice of termination, because Ms. Browne was his spouse and the unit was her principal residence, she became a tenant. Mr. Browne’s subsequent notice of termination could not act to terminate her tenancy.
(5) The First and Second Review Decisions erred in law in ignoring the remedial and tenant protection focus of the Act.
(6) The First and Second Review Decisions are contrary to Ontario’s family law regime and the “best interests of the child” doctrine.
[19] The Respondent Landlord disputes that there is any merit to Ms. Browne’s submissions. It makes the following arguments. First, that the First Review Decision correctly found that there was a serious error in the Set Aside Decision. While it acknowledges that the Act is remedial legislation with a tenant protection focus, there are clear legislative limits as to who can fall under the definition of a “tenant”. Neither the Tribunal nor the court can read into the legislation substantive rights that the legislation did not provide. None of the acts that the Set Aside Decision relied on can create a tenancy. The direction in the legislation to consider the “real substance of a transaction” is to allow the Tribunal to pierce the corporate veil to decide who is the real landlord in a case, not to expand the definition of tenant. The two review decisions did not err in their consideration of Mr. Browne’s intentions when he gave notice. The fact that he may have considered Ms. Browne to be a tenant does not mean that she was a tenant. His mistaken assumptions cannot convert someone who was an occupant into a tenant. The Tribunal did not err in its interpretation of the Regulation. Even the Set Aside Decision found that the regulation did not apply in the circumstances of this case. Finally, the Tribunal is not bound by family law legislation or principles.
[20] In my view, the Board made two errors of law, either of which are sufficient to set aside the First and Second Review Decisions. First, it erred in conducting a review in the absence of a serious error. Second, it erred in its interpretation of s. 3(2) of the Regulation.
The Board erred in conducting a review in the absence of a serious error
The Board’s jurisdiction to review an order
[21] Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that “[a] tribunal may, if it considers it advisable and if its rules made under section s. 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”
[22] Rule 26 of the Landlord and Tenant Board Rules of Procedure grants the Board the discretion to review its orders. Rule 26.8 makes it clear that a request to review an order must provide “sufficient information to support a preliminary finding of an alleged serious error or an explanation as to why the requestor was not reasonably able to participate in the hearing.”
[23] The Board’s Interpretation Guideline 8 makes it clear that the Board will only exercise its discretion to review an order if one of these two conditions exist. The guideline also makes it clear that a review is not an opportunity for the parties to present a better or different case than was presented at the hearing. Absent an application of improper principles or insufficient evidence to support the Board’s conclusions the review should not be granted.
[24] Guideline 8 also gives examples of what is a serious error. They include an error of jurisdiction, a procedural error that raises issues of natural justice, an unreasonable finding of fact on a material issue, new evidence that was unavailable at the hearing and could affect the result, an error in law and an unreasonable exercise of discretion that results in an order outside the “usual range of remedies or results and where there are no reasons explaining the results.”
[25] In this case, while the precise words were not used, the First Review Decision found that the Set Aside Decision either contained an unreasonable finding of fact on a material issue, (i.e. whether Ms. Browne was a tenant or an occupant) or constituted an unreasonable exercise of discretion.
[26] Section 2(1) of the Act defines a tenant as including “a person who pays rent in return for the right to occupy the unit”. The definition of “rent” in s. 2(1) includes consideration paid on behalf of a tenant. There is no question that Ms. Browne meets this definition.
[27] In a residential tenancy relationship, there is a tenancy agreement, which according to the Act can be oral, written, or implied: s. 2(1). It is clear that not everyone who occupies a rental unit is necessarily a tenant. As the Board’s Interpretation Guideline 21 makes clear, s. 202 of the Act requires the Board, in making findings on this issue, to ascertain the real substance of the transactions and activities relating to the rental unit. Interpretation Guideline 21 also makes it clear that s. 202 of the Act is not limited to looking behind the corporate veil.
[28] There is a considerable amount of Board jurisprudence on the subject of who is a tenant and who is an occupant. In Garten v. , 2024 ONLTB 29857 at paras. 18 and 19, the Board summarizes the kind of facts that have been found to “be indicia that a tenancy agreement exists between an individual and a landlord” (emphasis in original omitted). They are that the person paid rent directly to the landlord, the person has lived in the unit for an extended period of time, the landlord permitted occupancy of the unit by the individual, the landlord has enforced its rights against the individual, the individual has enforced their rights against the landlord, the individual has requested maintenance or repair of the rental unit, the individual and the Landlord communicate on issues concerning the unit, and the landlord has identified the individual on its own internal records. There is no issue that a number of these indicia applied to Ms. Browne. She paid rent directly to the landlord, she had lived in the unit for an extended period of time, the landlord permitted her occupancy in the unit, she made maintenance and repair requests to the landlord, the landlord communicated with her on issues concerning the unit and she was identified as a tenant on one of the landlord’s records.
[29] While the First Review Decision may have found these facts to be insufficient to support a finding that Ms. Browne was a tenant, there is no basis for finding that the Set Aside Decision’s conclusion on the issue was unreasonable. It was consistent with the statutory scheme of the Act, it was consistent with the remedial and tenant protection purpose of the Act, it was consistent with the Board’s jurisprudence on what the indicia of an implied tenancy agreement are and it is consistent with the jurisprudence from this Court in Jemiola v. Firchuk (2005), 206 O.A.C. 251 (Div. Ct.) at para. 9 that the definition of “tenant” in the Act is “broad and inclusive and should be broadly and liberally construed.”.
[30] It is clear that the member who made the First Review Decision disagreed with the Set Aside Decision’s conclusion that Ms. Browne was a tenant and dismissed this conclusion on the basis that the member who made the decision was “emotional” and driven by the desire to achieve a particular result. First, given what I have outlined in the previous paragraph, the Set Aside Decision meets all the hallmarks of a reasonable decision, which means that it cannot be dismissed in the way that it was in the First Review Decision. Second, disagreeing with a result is not sufficient to make a decision irrational. As the Supreme Court of Canada has pointed out, reasonable people can disagree; the fact that they do is not sufficient to make a decision unreasonable: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 83; see also Wilson v. Intact Insurance Company, 2025 ONSC 5305 (Div. Ct.), at para. 46.
[31] For these reasons I find that the First Review Decision erred in law when it found that the Set Aside Decision contained a serious error. As such, the threshold for a review was not met and the review hearing should not have proceeded. This means that the First and Second Review Decisions should be set aside and the Set Aside Decision restored.
The Tribunal erred in its interpretation of s. 3(2) of the Regulation
[32] Subsection 3(2) of the Regulation provides as follows:
If a tenant vacates a rental unit without giving notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act.
[33] The Regulation provides for a number of circumstances where this provision would not apply. It is agreed that none of the enumerated circumstances are applicable to the case at bar.
[34] The Board in the Set Aside Decision decided that s. 3(2) of the Regulation did not apply to Ms. Browne because Mr. Browne served a notice of termination on the Landlord. I find that the Tribunal erred in law in coming to this conclusion.
[35] The “modern” approach to statutory interpretation requires us to read the Regulation’s words in their ordinary and grammatical sense, considered in their full context, the overall purpose of the Act, and the legislature’s intention. A construction that leads to an absurd result, unintended by the legislature, is to be avoided: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at paras. 21 and 27.
[36] The express wording of s. 3(2) of the Regulation requires the following for a spouse of a tenant to become a tenant:
(a) That the tenant spouse vacate the unit without giving notice to terminate or entering into an agreement to terminate the tenancy under the Act; and
(b) That the unit be the principal residence of the tenant’s spouse.
[37] Both of these conditions were satisfied in this case. Mr. Browne vacated the unit without giving notice to terminate or entering into an agreement to terminate the tenancy. A notice to terminate was not delivered until five months later. The unit was Ms. Browne’s principal residence. The parties were married and therefore, Ms. Browne was clearly a spouse. Thus, under the express wording of the Act, Ms. Browne became a tenant when Mr. Browne vacated the unit. While Mr. Browne subsequently filed a notice to terminate his tenancy, Ms. Browne never filed a notice to terminate hers.
[38] Subsection 3(2) of the Regulation is preceded by s. 3(1), which is designed to address another situation where a spouse of a tenant may need protection, namely if the tenant dies. Subsection 3(1) reads:
If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act, unless the spouse vacates the unit within the 30-day prescribed period in subsection 91(1) of the Act.
[39] Thus, s. 3 of the Regulation, taken in context, is designed to offer the spouses of tenants who occupy a rental unit that is their principal residence protection in the event that the tenant spouse is no longer around – either because they have died or because they have vacated the unit.
[40] If s. 3(2) is interpreted to mean that a vacating tenant can terminate their spouse’s tenancy after they have vacated the unit by serving a notice to terminate, the protection offered to the remaining spouse is undermined considerably. This case serves as a stark illustration of why. Ms. Browne, who is the victim of domestic violence and the mother of two children, is left in the position where she and her children can only remain in their home if they pay the landlord double the rent they were paying. Further, on this interpretation, a vacating tenant (who may or may not be hostile to their spouse) could serve a notice years after they vacated the premises and this notice could have the effect of terminating the remaining spouse’s tenancy.
[41] The fact that the landlord did not know that Mr. Browne had vacated the unit does not affect my interpretation of s. 3 of the Regulation. Neither s. 3(1) nor s. 3(2) requires the landlord’s knowledge for the spouse’s tenancy to become effective. This is consistent with the tenant protection focus of the Act, which the court has found mandates a broad interpretation of the word “tenant”.
[42] It is also clear that the drafters of the Regulation were aware of the fact that it could be difficult for some landlords. That is why these subsections, by the terms outlined in the Regulation, do not apply to a rental unit in a building containing three or fewer residential units where the landlord resides in the building: s. 3(3)1. There are also other rental units described in s. 3(4) that are exempted from these rules.
[43] The enumerated exceptions to ss. 3(2) of the Regulation indicate that the drafters of the Regulation did wish to offer landlords some protection from the application of the Regulation in certain specific circumstances. Two of those exceptions deal with circumstances where the tenant was in arrears of rent. Another exception is the one set out below:
- The tenant who vacated the rental unit was not in arrears of rent and the spouse fails to advise the landlord, before an order is issued under section 100 of the Act, that he or she intends to remain in the rental unit.
[44] What these exceptions tell us is that the drafters of the Regulation wanted to ensure that landlords had some assurance that their rent would continue to be paid by the spouse who remained in the unit. If the rent was in arrears at the time the tenant vacated the unit, there is an obligation on the spouse to agree to pay the arrears and to advise the landlord that they intend to remain in the unit. If the rent is not in arrears then the spouse must advise the landlord that they intend to remain in the unit before the landlord obtains an order under s. 100 of the Act. Section 100 of the Act provides that “[i]f a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred.” In this case the landlord did not obtain an order under s. 100 of the Act; the ex parte eviction order was under s. 77 of the Act on the basis of a notice that did not operate to terminate Ms. Browne’s tenancy.
[45] The only prejudice the landlord has suffered by having Ms. Browne remain in the unit is the loss of the opportunity to double the rent that it receives for the unit. This is not the kind of prejudice that the drafters of the Regulation were concerned about alleviating. In fact, the purpose of the Regulation is to offer the remaining spouse the ability to remain in their home if that home was their principal residence and they are prepared to honour the rental obligations associated with that unit. Enabling a landlord to behave in a way that facilitates its ability to double the rent it receives for the unit would undermine that purpose.
Conclusion
[46] For these reasons the appeal is allowed, the First and Second Review Decisions are set aside and the Set Aside Decision is restored. The Appellants seek an order for costs for disbursements only in the amount of $3822.28. The Respondent landlord shall pay Ms. Browne her costs in this amount.
Sachs J.
I agree _______________________________
Backhouse J
I agree _______________________________
O’Brien J.
Released: February 4, 2026
CITATION: Browne v. Henley Crescent, 2026 ONSC 455
DIVISIONAL COURT FILE NO.: 421/25
DATE: 20260204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and O’Brien JJ.
BETWEEN:
Ricky Browne and Denise Browne
Appellants
– and –
Henley Crescent
Respondent
REASONS FOR JUDGMENT
SACHS J.
Released: February 4, 2026