CITATION: Dean v. McDonald, 2026 ONSC 893

DIVISIONAL COURT FILE NO.: 233/25

DATE: 20260212

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Holly Dean and George Lastiwka, Appellants

AND:

Maureen McDonald, Respondent

BEFORE: Justice O’Brien

COUNSEL: Holly Dean and George Lastiwka, Self-Represented

Amir Khan, Counsel for the Respondent

HEARD: February 10, 2026 via videoconference

ENDORSEMENT

Overview

[1] The appellant tenants have brought an appeal of two decisions of the Landlord and Tenant Board: an initial order dated August 1, 2024 and an order denying their request for review dated February 4, 2025.

[2] The tenants lived in a mixed-use building belonging to the respondent landlord. The building has a residential unit at the back of the building and a commercial unit at the front. The basement is not part of the leased unit or the residential lease agreement. The basement door is accessible by two doors, one from the commercial store and the other from a door under the residential unit’s entrance door.

[3] On May 8, 2022, the landlord sent the tenants an email saying she would be accessing the basement storage area the next day between 5 and 8 pm. The landlord then attended the property with two other people on May 9 at around 6:30 pm. The tenants took the view the landlord was not entitled to access the property and an altercation ensued. The tenants then brought an application before the Board alleging the landlord entered the tenant’s unit illegally, substantially interfered with their reasonable enjoyment of the unit and harassed, obstructed, coerced, threatened or interfered with the tenants.

[4] The Board dismissed the application, finding that (1) the landlord had provided adequate notice of entry into the storage space; and (2) the tenants did not have the exclusive right to use the yard. The landlord therefore did not enter illegally or substantially interfere with the tenants’ reasonable enjoyment of the unit.

[5] In dismissing the request for review, the Board found there was no serious error in the original decision. It concluded the reasons of the original decision were rational and reasonable and that the three-hour window given by the landlord was reasonable and sufficient.

[6] The tenants raise two main submissions in this court: (1) the Board erred in finding the landlord gave sufficient notice before entering the property; and (2) the Board erred in finding that the landlord was entitled to enter the unit through the backyard.

[7] There is no basis for the court to interfere in the orders of the Board. On appeal, the court’s jurisdiction is limited to determining questions of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), s. 210.

[8] I realize the tenants believe they raised only errors of law. Ms. Dean repeatedly stated in her submissions she was not challenging factual findings and that she only sought to point to legal errors. But as I further discuss below, the issues she raised amount mainly to the application of the facts to the law – that is, questions of mixed fact and law. There is no extricable error of law that would allow this court to intervene.

Notice Issue

[9] With respect to the first submission, whether the Board erred in finding the landlord gave sufficient notice before entering the property, the Board applied the specific facts of the case to the statutory requirements. Subsection 27(1) of the RTA provides in part: “A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry …”. Subsection 27(3) provides: “The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m.”.

[10] In the initial order, the Board member turned her mind to the requirements of the statute. She noted that the landlord had given 24-hours’ notice before arriving at the yard and that the landlord had specified a window of between 5 and 8 pm. The Board member found this was proper notice under the RTA. This is the application of the facts to the law. The Board is a high-volume tribunal that is entitled to deal with cases expeditiously, as long as it allows all persons directly affected an adequate opportunity to know the issues and be heard: RTA, s. 183. The Board member was not required to specifically set out the statutory provision in issue in her reasons. It was open to the Board to find the requirements of the RTA were met and the window of time was reasonable.

[11] I also do not find any error in the review order on the notice issue. In the that order, the Board member considered the court’s decision in Wrona v. Toronto Community Housing Corporation, 2007 3228 (Div. Ct.). Wrona finds a six-hour window was not permissible. The Board noted the current case involved a three-hour window and concluded there was no serious error that would justify interfering in the initial order. Wrona did not find that a three-hour window was impermissible, and the Board member therefore was not required to find any serious error in the original order.

[12] Nor does the Board’s Interpretation Guideline 19 mandate a different result, as submitted by the tenants. The Guideline permits the landlord to provide notice of a “reasonable window of time” where it is not possible for the landlord to state a specific time of entry. Although the Guideline also references whether the landlord has control over the work being done, this was not a situation where the landlord was doing work, but where she was accessing her storage space. There had been a history of conflict between the parties prior to this attendance on March 9, 2022. Indeed, the altercation at this attendance resulted in criminal charges that were prosecuted in the Ontario Court of Justice. In this context, the landlord brought two people with her to access the basement storage area. It was open to the Board to find in all the circumstances that the notice given in this case met the requirements of the RTA.

[13] With respect to the tenant’s submission that the landlord did not have a purpose for entering the unit that is permitted by s. 27(1), this issue was not expressly addressed by the Board. Ms. Dean assures the court the issue was raised before the Board, although she has not provided any portions of the transcript to demonstrate this, nor any written submissions provided to the Board. In the review order, the Board summarized the tenant’s arguments at para. 2 and this argument does not appear there. Regardless, the Board reasoned that the yard was not for the exclusive use of the tenants and that the “real substance” of the transaction between the parties permitted the landlord to use the yard to access the basement. It was implicit that the Board therefore found this was a reason specified by the tenancy agreement as set out in s. 27(1)(5). There is no issue of law that would justify the court’s interference.

Issue regarding Access to the Yard

[14] On the second issue, the tenants submit the Board erred in finding that the yard was not part of the rental unit and in applying the RTA to find that the landlord was entitled to access the yard. The tenants argue the Board committed legal error by injecting the concept of “exclusive use,” which is not found in the RTA, into its analysis.

[15] I disagree that there was any legal error. In the original order, the Board member articulated the tenants’ argument as being that the landlord essentially altered the terms of their tenancy agreement and substantially interfered with their reasonable enjoyment of the property. She stated at para. 24 of her order: “In other words, it is the Tenants’ position that the Landlord was trespassing when entering the backyard.”

[16] In response to this argument, there was no legal error in the Board member applying s. 202 of the RTA to determine “the real substance of [the] transactions and activities” related to the rental unit. In doing so, the Board concluded that the parties’ agreement did not grant the tenants exclusive access to the yard. The Board found that from the commencement of the tenancy, the landlord had access to the basement for her personal use. In its view, because the tenancy agreement did not specify that the backyard was included or that the tenants had exclusive use of the backyard, the tenants did not have exclusive use of the backyard. This is not the injection of a legal concept but instead a factual finding that was open to the Board and over which the court has no jurisdiction.

[17] The Board on the review order also did not err by misstating the original order’s findings, as submitted by the tenants. First, the review order summarized the findings and therefore did not attempt to state every detail of them. Second, on the specific point regarding the use of the yard, the Board member in the review order accurately captured the finding that the yard was not for the tenants’ exclusive use, stating a para. 3: “As to the member finding the backyard was not part of the rental unit for the Tenant’s exclusive use…” (emphasis added). At para. 4, the member also qualified the backyard issue by referencing the finding that the tenants did not have exclusive use of it. It is clear she understood the original order. There was therefore no error in her treatment of the original order as alleged.

Disposition

[18] The appeal is dismissed. The landlord seeks costs on a substantial indemnity basis, submitting that the appeal is an abuse of the court’s process. I agree that the appeal was not a good use of the court’s resources. The tenants have already moved out of the unit and are mainly pursuing the appeal on a point of principle. The court’s jurisdiction is limited to errors of law. In spite of the tenants’ submissions, the appeal was mostly based on the application of the facts to the law. It therefore did not lend itself to establishing a point of principle in court. That said, I do not think the tenants pursued the appeal in bad faith or otherwise in an abusive manner and decline to award costs at an elevated level. The tenants shall pay costs to the landlord within 30 days in the amount of $5,000 all-inclusive.

O’Brien J.

Released: February 12, 2026