This case involves judicial review of a decision of the Landlord and Tenancy Board, and subsequent decision of the chamber’s judge upholding that decision, in which the Board granted an application to evict the appellants on the basis that their conduct was impairing the safety of others at a mobile home complex. The primary argument advanced was that the appellants did not have proper notice of the grounds for eviction. The court rejected this argument and affirmed the decision of the Board.

Administrative law – Decisions reviewed – Landlord and Tenancy Board – Fresh evidence – Judicial review – Appeals – Procedural requirements and fairness – Landlord and tenant – Eviction

2276761 Ontario Inc. v. Overall, [2018] O.J. No. 2730, 2018 ONSC 3264, Ontario Superior Court of Justice, May 24, 2018, R.J. Harper, F.L. Myers and W.D. Newton JJ.

The appellants (the “Overalls”) resided in a mobile home park owned by the landlord respondent. The appellants apparently liked cats; perhaps too much. On May 13, 2016, the Landlord and Tenant Board (the “Board”) granted the landlord’s application to evict the Overalls. In so doing, the Board found the Overall’s conduct “clearly seriously impairs the safety of others in the complex”. This finding was based on the following material findings of fact:

• The municipal bylaw limited the lawful number of pets that the tenants may keep to four cats plus one dog.
• On March 31, 2015, an animal control officer found 30 to 40 cats and one dog inside the appellants’ trailer.
• There was no evidence the cats were attracted to the appellants’ trailer in particular, but rather the appellants’ left cat food outside their trailer.
• The appellants reduced the number of pets, but on August 18, 2015, they were found keeping six adult cats, three young cats and 10 to 20 kittens.
• During the hearing before the Board, Ms. Overall testified that she had five cats and one dog, which still exceeded the bylaw.

The Overalls sought judicial review of the Board’s decision upholding the eviction notice. The primary argument advanced was that the Board erred in relying on the fact that the cats were not vaccinated as a ground for eviction, which they said was not listed as a ground relied upon in the landlord’s original notice to the Overalls. Thus, the Overalls said they did not have fair notice of the issue.

On judicial review, the court reviewed the “notice form”. It was undisputed that only a ground of eviction set out in the notice form could form the basis of an eviction order and that it was an error of law to evict on a ground not set out in that form. In this case, the landlord indicated the general basis for eviction as behavior seriously impairing the safety of another person. Details were then provided underneath this including particulars of some of the incidents. The only reference to vaccination was an incident where the appellants’ cats attacked the park manager’s dog resulting in her and her dog requiring medical treatment, including rabies vaccination shots. The appellants argued that the reference to vaccination was simply a “throw away” and that there was no way for them to realize the issue of vaccination was a ground that would be relied upon for their eviction. The majority of the court disagreed.

The court held that the Overalls were “confusing” the grounds for eviction with the “evidence” relied upon to substantiate the claim. The court said there was only one ground of eviction relied upon – namely, “seriously impairing the safety of another person” – which was drawn from the statute. Further, the court noted the Overalls knew the cats were not vaccinated and it was undisputed they kept an unlawfully large number of unvaccinated cats. It was this evidence the Board relied upon to support their finding that an eviction was appropriate. The court also rejected the appellants attempt to admit fresh evidence in response to this issue to demonstrate that four cats, dated after the Board’s decision, had been vaccinated. The court refused to admit the fresh evidence, noting that the proposed fresh evidence was of no assistance to the appeal.

In the end, the court upheld the Board’s ruling and dismissed the appellants’ appeal.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at [email protected].

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