Breach of a Mediation Agreement or Order on Consent

From Riverview Legal Services

Penworth Holdings Inc. v Howe, 2017 ONSC 4061 (CanLII)

[3] The respondent landlord subsequently applied pursuant to s. 78 of the Act to terminate the tenancy because of the appellant’s non-compliance with the condition. At the hearing, it was not contested that the appellant uttered swear words to the superintendent twice on one occasion that were directed at a representative of the landlord who was not there. The Board concluded that this was a breach of the conditional order. See the transcript, November 17, 2015, p. 25 where the Board found:

Substantial interference is specified as such as making insulting, rude or profane comments towards the landlord’s and the landlord’s agents and certainly it was rude, maybe profane, swearing at the landlord’s agents.  I mean, I do see that as substantial interference and I find that there has been substantial interference and breach of the order, and so then that brings us to section 85 – 83 of the Act.

[5] An appeal lies to this Court only on a question of law (s. 210(1) of the Act). The parties agree that the standard of review applicable to decisions of the Board is reasonableness.

[6] The appellant argues that the Board erred in finding that his conduct amounted to substantial interference with the landlord’s reasonable enjoyment contrary to the condition in the first order, given that the swear words said did not amount to a significant interference, and they were not directed at the person who heard them.

[7] The Board had ample evidence to find that the appellant contravened the condition in the 2015 order. There was no contest that he made the remarks to the superintendent. The Board could reasonably conclude that there was a breach of the condition from the original order.

[8] The Board reasonably exercised its discretion to refuse to grant relief from eviction, given the ongoing conduct of the appellant and the unlikelihood that conduct would change. Nevertheless, the Board postponed the eviction for several months in recognition of the appellant’s circumstances.

Zalcman v. Medicoff, 2018 ONSC 4618 (CanLII)

[8] The tenant requested a review, which was granted on September 14, 2017 (TNL-90049 Review Order). The Board found that the tenant had been consistently late in paying rent; that the parties agreed that arrears of $2,505 were owing; and that in the circumstances, given the tenant’s health issues and assurances that the tenant’s mother would assist in paying rent on time, it was not unfair to grant relief from eviction. The Board set out certain conditions, most importantly that the tenant pay the arrears on or before September 18, 2017. If she failed to meet any of the conditions, the landlords could move ex parte before the Board pursuant to s. 78 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) for an order terminating the tenancy and evicting the tenant.

[9] The tenant failed to pay the arrears as ordered. The landlords obtained an order from the Board on October 5, 2017 terminating the tenancy and ordering the tenant evicted (TNL-98102). The tenant then filed a motion to set aside the order, which was heard on November 6, 2017. She did not appear, and the Board dismissed the motion as abandoned (Second TNL-98102 Order).

[20] I understand that the appellant has health problems, and her finances are limited. However, when all the circumstances are considered, this appeal is without merit and an abuse of process. For that reason, I would quash the appeal in Court File 47/2018 and lift the stay of the eviction order.