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RTA - Eviction Relief [s.83] (2). Mason v. Azubalis
In Mason v. Azubalis (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, here where "the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation".
Here the court considered the 'mandatory refusal' [RTA s.83(3) - 'Circumstances where refusal required'] termination defence provisions:Section 83(3): Mandatory Refusal
[36] Under s.83(3), the Board must grant relief from eviction if (b) the reason for the application being brought is that the tenant has complained to a government authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards, or (c) the application was brought because the tenant attempted to secure or enforce her legal rights.
[37] Whether there are circumstances that give rise to relief from eviction under s. 83(3) concerns a finding of fact or mixed fact and law and would only rise to an error of law if, for example, the Board failed to consider whether any of the factors set out in s. 83(3) had been met: see for example Jackson v. Capobianco, 2017 ONSC 3324. That is not the case in this appeal. The Board considered the factors set out in s. 83(3) and made a finding of fact that the application had not been brought as a result of the Tenant's complaints.
[38] However, when considered in the context that the Board comingled the intent of the Landlord and the intent of the Landlord's son, the Board's conclusion on s. 83(3) is also confusing. As set out above, when considering s. 83(3), the Board concludes that "I find that it is more likely than not that the application was brought because the Landlord genuinely intends to move in." It is therefore not clear if the factors considered by the Board related to the Landlord or only to the Landlord’s son. . Linton v. Daley
In Linton v. Daley (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 appeal, here from "an Order of the Landlord and Tenant Board (the “Board”) dated September 16, 2024, that evicted him from his basement apartment on the grounds that the rental unit is required by the Landlords for their daughter and her husband".
The court considers an RTA s.83(3) ['Circumstances where refusal required'] tenant defence issue, here where the appellant had mental health problems:Did the Board Member Err in Failing to Find that the Landlords Breached their Duty under Section 23 of the RTA and in Failing to Refuse to Grant the Eviction under Section 83 of the RTA?
[19] Section 23 of the RTA states:A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant. [20] Section 83 of the RTA states in part: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.
(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).
(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement; ... [21] At paragraphs 37-42 of the Order, the Board member considered whether relief from eviction under s. 83 of the RTA should be granted. The Board Member noted that the Tenant has been dealing with mental health issues since he was 11 years old and that he has limited income. She found that this was not a case in which the decision to evict the Tenant was due to conduct attributable to his disability or medical condition.
[22] The Tenant submits that the Board Member should have refused to grant the eviction on the basis that the Landlords had been harassing and coercing him for a number of years. The Board Member considered the Tenant’s evidence and was unable to come to the conclusion that he had been coerced to vacate the rental unit. The Order, at paragraphs 28-31, states:28 Four months after he obtained affordable housing in Windsor, “the torture began”. He indicated that he has been hunted down for the past 10 years by the RCMP and their torture agents with “energy” weapons (EMP – electromagnetic pulse devices).
29 This has included being targeted for the past seven years that he has resided in the rental unit. He described the rental unit as a “torture chamber”. That is because the Landlords have given approval to the RCMP “to install a team of several torture agents” in the Landlords’ unit to torture him “24 hrs a day”. It is the RCMP’s intent to have him evicted by the LTB, leaving him homeless and subject to more torture.
30 While I accept the Tenant’s concerns are truthfully given and serious in nature, without adequate proof I am unable to reach the same conclusions as the Tenant. He led no evidence, other than his statements, that would establish the claim that he was being compelled to move out of the rental unit by either the RCMP or the Landlords’ cover or overt actions.
31 The Tenant did not present any witnesses, such as a mental health caseworker, to supplement his evidence. It is clear he does not have access to such supports and resources. [23] The alleged errors do not raise a question of law.
[24] The Tenant brought a motion to adduce fresh evidence to, amongst other things, “... contradict the landlords’ claims that there are no RCMP proxy-agents living with the landlord and harassing me day and night with Energy Weapons”. I dismiss this motion because it would serve no useful purpose given that this appeal is limited to questions of law and because the motion record had not been uploaded to Case Center by August 26, 2025, in accordance with Justice Matheson’s directions. . 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.
....
[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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