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Sudbury man must vacate his apartment this month, court rules

Original eviction date was March 2018, but he appealed the decision several times
An appeals court in Greater Sudbury has rejected a man's claim that his landlord was out to get him when he served him with an eviction notice to vacate his downtown apartment in January 2018. (File)

An appeals court in Greater Sudbury has rejected a man's claim that his landlord was out to get him when he served him with an eviction notice to vacate his downtown apartment in January 2018.

The court also rejected his arguments that an adjudicator at the Landlord Tenant Board was biased against him, and that she shouldn't have been permitted to hear his appeal of the original decision.

The landlord applied to remove the tenant so he could move into the unit himself, something that is permitted under Ontario law. But the tenant, who moved into the unit in April 2017, argued the move was retaliatory, and was done after he had the Electrical Safety Authority inspect his apartment “and insisted on proper maintenance,” the court transcript says.

The tenant also argued the application shouldn't have been considered because an affidavit from the landlord said he lived in Sudbury, when he only works in Sudbury and lives just outside of the city.

He also said the member of the Landlord Tenant Board shouldn't have been allowed to hear an appeal of her own decision, that she was biased against him, and he alleged the landlord had improper communications with the board during the appeal.

The man's appeals were first rejected in April 2018, and a new eviction date in May was set. The tenant then asked for a review of that decision, which was held in August. In that decision, the board again upheld the eviction, saying the landlord  had proven to “be truthful and his rationale for wanting possession of the unit to be credible.”

“On Aug. 23, 2018, the appellant requested a review of the decision issued Aug. 8, 2018,” the transcript says. “That review, along with the hearing of the Appellants three applications, was heard on Dec. 18, 2018.”

The same member of the Landlord Tenant Board who made the original decision again rejected the man's appeal in February of this year, leading the tenant to appeal to Divisional Court in March, as well as ask for yet another review by the board.

The board turned down that request March 29, ruling the board member had “made reasonable determinations based on the evidence she found relevant and had made no error in doing so.”

The court also ruled the board followed the rules as set out in the Residential Tenancies Act, which allows a landlord to evict someone as long as “in good faith, required possession of the rental unit for his own residential occupation.” 

The board member didn't find any of the maintenance issues raised by the tenant to be “serious,” and the fact she had determined the landlord had a “good faith” intention to move into the unit “negated the possibility of a finding that his application was retaliatory.” 

And the affidavit that said the landlord lived in Sudbury “was of no consequence,” the court ruled.

“He works in Sudbury, owns property in Sudbury and although he resides ... outside the municipal boundaries, there was no doubt about the identity of the landlord and who was swearing the affidavit,” the transcript says.

As far as the board member reviewing her own decision, the court says that is allowed under the act, which “gives the LTB the power to determine its own procedures and practices and to establish its rules. 

“Given the nature of a review, that there is a right of appeal from the LTB (albeit restricted to questions of law) and the LTB’s ability to establish rules to ensure that reviews are handled expeditiously, we see no breach of procedural fairness or natural justice in having an LTB member review her own decision.”

And the improper communication the tenant alleged the landlord had with the board were two emails in June 2018, in which the landlord asked about the status of the review process.

The appellant perceives something nefarious in these communications,” the transcript says. “We do not. In our view, these are simply inquiries to indicate his concern with the delay in having the matter determined.

“Although the hearings and reviews in this matter before the LTB did not proceed as a model of efficiency, it is clear that the appellant was given the opportunity to be fully heard, there was no error of law and no breach of natural justice or procedural fairness. It follows that the appeal is dismissed, and the stay of the eviction order is vacated.” 

In a decision dated Oct. 18, the man was given until Nov. 15 to move.


Darren MacDonald

About the Author: Darren MacDonald

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