Misapplication of Section 83

1. Pursuant to Rule 26.19 and Guideline 8 of the RTA, the landlord submits a request for a review based upon the ground that the review order is in breach of natural justice and an improper application of Section 83(3)(b) of the Residential Tenancies Act, 2006 (RTA). The landlord submits that the order has resulted in a contravention of Section 1 of the Act requirement to balance the rights of landlord and tenants.
2. The facts of the case are undisputed and are as follows.
3. The tenancy commenced on November 24, 2021.
4. The rental unit is a room located in the basement of a single-family residential dwelling.
5. In or about April 2023, the tenant complained to the City of Toronto that the property was in contravention of the Building Code Act and as a consequence thereof, the landlord was issued an Order to Comply by the City. The order directed the landlord to,
   1. apply for a change of use permit for to change the unauthorized use to a single-family dwelling with two self contained secondary suites: OR
   2. to revert the unauthorized change of use to that of a residential single family dwelling.
6. The Order to comply from the City further advised the landlord that,Failure to comply with this Order is an offence which could result in a fine [Building Code Act, 1992 s. 36].  [see section 36 of the Building Code Act attached]

7. The landlord chose option (b) and served the tenant with an N13/L2 application to terminate the tenancy on August 31, 2023.
8. In response to the landlord’s N13 notice, the tenant offered to vacate her unit in exchange for $50,000.00 in compensation.
9. The initial Merits Hearing was scheduled for July 12, 2023, but due to the tenant’s many requests for accommodation due to an alleged concussion, the matter was adjourned twice and was final heard on October 24, 2023.
10. On or about January 8, 2024, the Member dismissed the landlord’s N13/L2 application on the basis that,

“an application issued to forego expensive renovations does not constitute a project that is considered to be a demolition”.

11. On or about January 17, 2024, the landlord filed a request to review, and the review was granted by a different Member for a hearing de novo on June 13, 2024.
12. On or about August 26, 2024, the landlord received an email from inspector Richard Rampersad, Toronto Public Health, confirming that there were no major issues to report on the rental unit and recommended minor repairs. The inspector recommended that the landlord apply caulking seal around the shower and to clean the vent screens under the microwave.
13. Over the next few months, the matter was adjourned several times, and a merits hearing was finally scheduled on May 2, 2025. The final order was issued 4 months later on August 18, 2025, whereby the Member found that the landlord had brought her N13/L2 application in good faith but, the Member chose to invoke her discretion under Section 83(3)(b) to dismiss the landlord’s N13/L2 application.
14. At paragraph 39 of her order, the Member states,

“Therefore, I was satisfied on the balance of probabilities that the landlord will requires the rental unit to be vacated because the landlord in good faith intends to demolish it”

15. Notwithstanding her determination of good faith, at paragraph 50 of her order the Member applied Section83(3)(b) to deny the landlord’s application based upon,

“Based upon the evidence before me I was satisfied that the sole reason for this application being brought was that the tenant complained to the city about the landlords failing to address maintenance issues in rental unit and the city subsequently issued the order to comply regarding the status of the premises that the landlord now relies on in support of her intention to demolish her unit therefore in accordance with subsection 83(3)(b), the eviction shall be refused”

FACT AND LAW

16. Guideline 8 of the Act states that the LTB may review an order on its own initiative where it considers it appropriate and may exercise of its discretion to review based upon a serious error in exceptional circumstances.
17. Rule 26.19 of the RTA states a party may request a review of the same order on different grounds. The ground being argued in this review is the Member’s application of Section 83(3)(b)
18. At paragraph 50 of her order, the Member states,

“Based on the evidence before me, I was satisfied that the sole reason for this application being brought was that the tenant complained to the city about the landlord failing to address maintenance issues in the rental unit and the city subsequently issue the order to comply regarding the status of the premises that the Landlord now relies on in support of her intention to demolish the unit. Therefore, in accordance with subsection 83(3)(b) the eviction shall be refused”.

19. At paragraph 30 and 31 in LTB-L-069973-22RV, Member Mark Melchers states,

Subsequently, when the Tenant Protection Act, 1997 was enacted, the legislature replaced the words “’a reason’ with the narrower ‘the reason’. This indicates that the landlord’s sole or primary reason for the termination of the tenancy is retaliatory: MacNeil v. 976445 Ontario Ltd., [2005] OJ No. 6362, 2005 CarswellOnt 10528, para 26. The narrower “the reason” language was maintained in the relevant provisions under the Act, which replaced the Tenant Protection Act, 1997: ss. 83(3)(b) and (c), Residential Tenancies Act, 2006.

 At paragraph 27 of his decision, the Member wrote: “Based on the submissions and evidence of the parties I do not find that the primary reason for the application being brought was due to the Tenant complaining to public health or trying to enforce her legal rights” [emphasis added]. The Member articulated the legal test for subsections 83(3)(b) and (c) correctly. In my view, the “precipitating event” language used by the Court in Lok Le v. O’Grady is another way to express the same test. The Member’s interpretation of the Act is not contrary to a binding decision of the Courts, and it is not clearly wrong and unreasonable.

20. At paragraph 29 in Cater v. Khakh, 2020 ONSC 6884, the Divisional Court stated that,

            In my view, the LTB made two errors of law in its s. 83 analysis.

[30] The first is that it did not, in its decision, deal in any way with the appellants’ contention under s. 83(3) that the application for eviction was brought in retaliation for their having complained to the City about the lack of heat in their rental unit. This issue was clearly raised by the appellants and cannot fall under a general consideration of circumstances under s. 83(2).

21. It is submitted that contrary to the legal test set out by the Divisional Court and LTB cases, the Member failed to consider whether “the application for eviction was brought in retaliation for their having complained to the City”. Contrary to the test, the Member stated that,

 [50]. Based on the evidence before me, I was satisfied that the sole reason for this application being brought was that the Tenant complained to City about the Landlord failing to address maintenance issues in the rental unit and the City subsequently issue the Order to Comply regarding the status of the premises

22. The landlord submits that there is no reference or evidence in her order that the application was retaliatory, in fact, at paragraph 50 of her order, the Member states that, the sole reason for the landlord filing her N13/L2 application was the Order to Comply from the City of Toronto.
23. At paragraph 39 to 43 of LTB-L-069973-22-RV, Member Melchers deals with the issue of adequate reasons as follows:

[39]To be reasonable, a decision has to be based on logical and rational reasoning. The Member’s logic must be traceable without encountering any “… fatal flaws in its overarching logic”. There must be a “… line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), para 102.

[40].A reasonable decision must be justified in light of the facts, the “… evidentiary record and the general factual matrix that bears on [the] decision …” must be taken into account, and the decision has to be reasonable in light of the record. If a Member misapprehends the evidence, or fails to account for the evidence before it, the reasonableness of the decision may be in jeopardy: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), para 126.

[41].A Member’s decision must “… meaningfully account for the central issues and concerns raised by the parties … The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), para 127.

[42].At the same time, Members are not required to “… ‘respond to every argument or line of possible analysis’ … or to ‘make an explicit finding on each constituent element, however subordinate, leading to its final conclusion’”. However, “… failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question with the decision maker was actually alert and sensitive to the matter before it”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), para 128.

[43].The provision of adequate reasons is a matter of procedural fairness, and “… individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm”. The reasons provided must “reflect the stakes” for the individual(s) affected by the order: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), para 133. I accept that where a person’s housing is at stake, there is the potential for significant personal impact on that person.

24. The landlord submits that the Member failed in her obligation of procedural fairness by failing to provide adequate reasons in applying Section 83(3)(b) especially in light of the fact that her order, has the potential to cause significant personal impact or harm to the landlord. In contrast, when the application was brought, this was a two-year tenancy and today, the tenant would benefit from the depressed rental market if she chose to move to another rental unit.  There is no balancing of the rights of the landlord and tenant as required under Section 1 of the Act.
25. The landlord further submits that if her order is not set aside, the landlord is left with the following options,

Option 1.  To accept the tenant’s offer to pay her $50,000.00 to vacate the unit;

Option 2.  To make an application to the City of Toronto for a construction permit

and bear the substantial cost and expense in renovating the property to convert it into a two-family dwelling; and

Option 3.  Refuse to comply with the order and pay the resulting fines that would

be levied under Section 36 of the Building Code Act.

26. In Puterbough v. Canada (Public Works & Government Services) [2005] O.J. no 5727, the Divisional Court held that,

“A landlord is entitled to make rational economic choices that may lead to eviction or the purpose of demolition”

27. The landlord respectfully requests that the order of the Member be set aside and the landlord’s N13/L2 application be granted.
28. In the alternative, the landlord request that the order of the Member be set aside and a hearing de novo be scheduled to address the issue of Section 83(3)(b).