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. Pinto v. Regan and White v. Regan
In Pinto v. Regan and White v. Regan (Div Ct, 2021) the Divisional Court considered the awkward double-negative wording of RTA 77(8) on a motion to set aside a landord's ex parte order:[22] Section 77(8) of the RTA requires the Board to apply the following test when deciding the motion of a tenant to set aside an eviction Order:(8) If the respondent makes a motion under subsection (6), the Board shall, after a hearing, …
(b) make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or .....
[26] On a motion to set aside an eviction Order under s. 77(6), the moving party is almost always the tenant. For that reason, the determination under s. 77(8)(b) of whether it would not be unfair to set aside the Order is normally focused on the fairness to the respondent landlord. As the moving party, the tenant would logically take the position that it would be fair for the Board to make the requested order, having regard to all the circumstances.
[27] Section 77(8)(b) does not specify which party bears the onus to prove the fairness or unfairness on a motion to set aside an eviction Order. Nor does it provide that either party is to satisfy the Board that the Order to set aside an Order must not be made if making that Order would not be fair, as that would put the burden on the respondent in either case. By using the double negative, the legislature placed the onus on the tenant to satisfy the Board that, having regard to all the circumstances, it would not be unfair to make the order requested.
[28] The Member had a positive duty under s. 77(8)(b) to grant the Order on each motion if it was satisfied it would not be unfair to make that order. In order to determine whether making that Order would not be unfair, the Board was required to make its order “having regard to all the circumstances”. The broad language to consider “all the circumstances” I take to mean the factual matrix that provides the context in which the dispute between the parties arose in its widest sense. This requirement reinforces the remedial nature of the RTA and its purpose to protect tenants’ rights: Musse, at paras. 53 and 58; Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th) 1, at para. 19.
[29] If the Member made a decision on a motion under s. 77(6) without regard to all the circumstances, or by ignoring items of evidence the law required him to assess when he made findings of fact and reached conclusions, there was an error of law made: Canada v. Southam Inc., at para. 41. If the appellants can show that the Member incorrectly identified or interpreted the legal standard, failed to apply the proper test or ignored evidence he was bound to consider, he made an error of law: Yatar, at para. 28. Similarly, if the Member applied an incorrect standard than that prescribed by statute in the performance of his statutory duty, the result is an error of law: Musse, at para. 48.
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[32] The Member reached his conclusion that it would be unfair to the respondent to set aside the eviction Orders. While he recited the evidence given by the respondent to find that the respondent has a bona fide intent to move forward with the renovations, he failed to consider whether, on the evidence of all relevant circumstances, it would not be unfair to him if the appellants were given the proper notice to exercise their rights under the RTA. For instance, he did not consider how it would not be unfair to the respondent to require him to serve each appellant with an N13 Termination notice under s. 50(1). As another example, the Member did not explain why it would not be unfair to the respondent if either appellant was given the opportunity to exercise her right of first refusal to reoccupy her rental unit under s. 53 after the renovations were completed.
[33] I conclude that the Member made an error of law when he determined that it would be unfair to set aside the eviction Order against each appellant. This was not the test he was to apply under s. 77(8)(b) of the RTA. The Member was required to determine that to make the order on the motion of each appellant would not be unfair to make, having regard to all circumstances. To compound the error, he failed to take all of the evidence regarding those circumstances into account when he made the decisions under appeal.
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