Relief from Eviction (Maintenance)
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;
- (b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
- (c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
- (d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
- (e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.
- (4) The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 52, 54 or 55, as the case may be.
- (5) If a tenant has given a landlord notice under subsection 53 (2) and subsection 54 (2) applies, the Board shall not issue an eviction order in a proceeding regarding termination of the tenancy until the landlord has compensated the tenant in accordance with subsection 54 (2).
16. In order to engage the mandatory refusal of eviction under subsection 83(3)(a), the Landlord must be in serious breach of the Act, and that breach must be continuing at the time of the hearing. Even if the allegations made by the Tenant are true, I am not satisfied that they constitute serious and continuing breaches of the Act. There is no evidence that the alleged illegal entries are continuing, and the other conducts described, although arguably breaches of the Act, do not rise to the level of “serious” breaches so as to trigger mandatory refusal of eviction.
17. In order to engage the mandatory refusal of eviction under subsection 83(3)(b) regarding enforcement by the Tenant of her legal rights, I must be satisfied that the Landlords sole or primary reason for the termination is retaliatory; it is not sufficient that retaliation or vindictiveness is part of the reasonMacNeil v. 976445 Ontario Ltd., (2005) O.J. No 6362 at para. 26 (Ont. Div. Ct.), leave to appeal to C.A. refused (‘MacNeil’). The provisions are triggered if the retaliation was ‘the reason” for the application. This is to be contrasted with the provisions of earlier legislation (the Landlord and Tenant Act) which mandated refusal of eviction if retaliation was “a reason” for the application.
 The Board found as fact that the application was brought by the Landlord because the Tenants attempted to enforce their legal rights. Specifically, the Board found that the Tenants had refused to agree to a rental increase beyond that to which the Landlord was lawfully entitled, and this is ultimately why the application was brought by the Landlord.
 Once that factual determination was made by the Board it was obliged to refuse the application. It had no discretion to do otherwise. What the Landlord really objects to is the Board’s finding of fact, from which no appeal lies.
 Even if we were persuaded that this ground of appeal is properly before us, we are not convinced there was any error. The inferences to be drawn from the evidence are practically irrefutable. If the Tenants had agreed to the Landlord’s unlawful demands they would have been allowed to continue to occupy the premises. Because they did not, the Landlord determined he would evict the tenants and move into the property himself. The precipitating event was not the Landlord’s desire to occupy the premises himself. It was the Tenants’ refusal to accede to his unlawful demand. Counsel argued that many facts pertinent to the Landlord were not considered by the Board. We disagree. The Board indicated that its decision was based on consideration of the facts before it. Indeed most, if not all, of the facts referred to as missing from the Board’s analysis must have been considered by it in reaching the conclusion that the Landlord held a good faith intention to move into the premises.
39. The Tenant submitted that the Board must deny the eviction pursuant to subsection 83(3)(a) of the Act because the Landlord failed to provide adequate heat in the unit from October 2016 to December 2016.
40. In the Tenants’ position, this constitutes a serious breach of the Landlord’s responsibilities for the purposes of s.83(3)(a) of the Act. Therefore, this provision of the Act prevents me from granting the Landlord’s application for termination and eviction.
41. The wording in s. 83(3)(a) is in the present tense meaning that the serious breach must be ongoing at the time of the hearing before the Board (see Puterbough v. Canada (Public Works & Government Services (2007) O.J. No. 748 (Ont. Div. Ct.) at para. 28).
2. The Tenant has not paid the rent owed for September, October or November 2009. No rent was paid to the Landlord since the application was filed.
3. The Tenant owes $2,570.00 in arrears of rent and costs for the period ending November 30, 2009.
4. I have considered all of the disclosed circumstances as required under subsection 83(2) of the Residential Tenancies Act, 2006 (the ‘Act’) and find that, as the Landlord was in serious breach of his statutory obligations at the time this application was heard, eviction must be refused pursuant to subsection 83(3)(a) of the Act.
5. The Landlord has deliberately interfered with the supply of gas and electricity to the rental unit. This was contrary to the Act.
6. The Ministry of Municipal Affairs and Housing’s Investigations and Enforcement Unit had already informed the Landlord that such actions were illegal when it directed him to have gas service to the unit restored just two weeks before he had the electricity to the unit cut off in the same manner.
7. As eviction could not be ordered under this application, arrears of rent could only be ordered up to the end of the month in which the application was heard. The Landlord is also entitled to recover is application filing fee.