Court File and Parties

COURT FILE NO.: 364/21 DATE: 20211006

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: SALIM KHAN, Landlord/Applicant (Respondent in Appeal) AND: JAMILLA CAMPBELL, Tenant/Respondent (Appellant in Appeal)

BEFORE: Sachs, R. D. Gordon and Kristjanson JJ.

COUNSEL: Yodit Edemariam, for the Appellant Salim Khan, on his own behalf Brian A. Blumenthal and Katia Snukal, for the Landlord and Tenant Board

HEARD at Toronto by videoconference: September 29, 2021

ENDORSEMENT

[1] In November of 2017 the Tenant found herself in arrears of rent for the apartment she occupied and which was owned by the Landlord. As a result, she was served a notice to end her tenancy for non-payment of rent. She did not pay her arrears by the termination date, and the Landlord applied to the Landlord and Tenant Board for an order to have her evicted.

[2] A hearing was held on January 4, 2018, and on January 15 the Board issued its decision. It found her to be in arrears of rent and issued an order terminating the tenancy effective January 31, 2018. The order also provided that for the Tenant to void the order and continue the tenancy she would have to pay $1,240 (unpaid rent to January 31 and the $190 filing fee incurred by the Landlord) by January 31. She did not do so. However, after that date various payments were made to the Landlord on her account.

[3] In May 2018, when the Landlord filed for enforcement of the eviction order and she was served a Notice to Vacate, the Tenant brought a motion before the Board to void the eviction order in accordance with s. 74(11) of the Residential Tenancies Act. A hearing was convened before the Board to deal with the motion and evidence was called by both the Landlord and Tenant as to the payments made by the Tenant since the eviction order was made. The Tenant submitted that she had paid all amounts necessary to satisfy s. 74(11). The Landlord submitted that she had not.

[4] In its decision dated June 14, 2018, the Board declined the Tenant’s request. The rationale for its decision is found at paragraph 4:

At the hearing, the Tenant presented a number of payment receipts for rent paid to the Landlord by ODSP. When compared to the Landlord’s ledger, it was evident that all the payments had been credited to the Tenant’s account by the Landlord. Since order TNL- 99560-17 was issued, the Tenant never had a zero balance. She has not paid all the arrears and costs owed to the Landlord as set out in the Board’s eviction order TNL- 99560-17, as well as the fees paid by the Landlord under the Administration of Justice Act for the purpose of enforcing the Landlord’s eviction order.

[5] Section 74(11) of the Residential Tenancies Act clearly defines what must be paid by the Tenant to have the Board set aside an eviction order thereunder. The payment of enforcement fees under the Administration of Justice Act is not among the payments required and the inclusion of those fees in its determination of whether the Tenant was entitled to relief was a legal error.

[6] As we are unable to determine from the Board’s decision or the record before us whether the Tenant met the requirements of s. 74(11), it is appropriate to grant the Tenant’s appeal and remit the matter to the Board for a new hearing. There shall be no order as to costs.

R. D. Gordon J.

Sachs J.

Kristjanson J.

Date: October 6, 2021