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RTA - Eviction Relief [s.83] (2). Henye v. Minto Apartment Limited Partnership on behalf of the Registered Owners ['conditional order']
In Henye v. Minto Apartment Limited Partnership on behalf of the Registered Owners (Ont Divisional Ct, 2025) the Divisional Court dismissed a RTA s.210 appeal, here where the tenant was evicted for "substantially interfer(ing) with the reasonable enjoyment of the residential complex for all usual purposes by another tenant contrary to s. 64(1)" by smoking.
Here the court considered the RTA s.83 relief from forfeiture provisions as a basis for issuing a 'conditional order' [one short of eviction, under s.83(1)(a)], including the applicable appellate SOR:[4] On January 3, 2024, a hearing was held by videoconference. In its Order dated May 10, 2024, the Member found that the appellant had not made a meaningful attempt to address the cigarette odour emanating from his residential unit. The Member found that the appellant’s behaviour substantially interfered with the reasonable enjoyment of the residential complex.
[5] Pursuant to s. 83 of the RTA, the Member considered whether it would be unfair to refuse to evict the appellant. The appellant testified that he would comply with any order requesting that he cease smoking in the rental unit. However, when asked whether he would “continue doing what you’re going to do” once the motion concluded, the appellant replied: “I’m going to live my life the way I live it”. In light of this comment, the Member found that it seemed that the appellant would not comply with a conditional order. However, the Member delayed the appellant’s eviction to June 30, 2024.
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[21] Subsections 83(1) and 83(2) of the RTA state:Power of Board, eviction
83(1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).
Mandatory review
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). 2006, c. 17, s. 83 (2). [22] The appellant states that the Board erred in disregarding:(a) The appellant’s verbal commitment to abide by the terms of any conditional order made by the Order as an alternative to his immediate eviction.
(b) The appellant’s attachment to the only accommodation he has known all his adult life and did not consider the unavailability of any similarly situation alternative accommodation. [23] The assertion that the Member failed to consider relevant facts and thus failed to properly consider whether relief from forfeiture should be granted under s. 83 of the RTA does not give rise to a question of law. Rather, it is an invitation to have this court reassess the evidence and the findings of fact made by the Member, which is not this Court’s function on appeal under the RTA: Kushner v. Turtledove Management Corp., [2009] O.J. No. 1064, at para. 3; Oz. v Shearer, 2020 ONSC 6685, paras. 31, 34. At best, the exercise of discretion under s. 83 of the RTA is a question of mixed fact and law, which is not subject to appeal either: Oz, para. 35.
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