Executive Summary: Key Legal and Evidentiary Issues

• The appellant challenged an eviction order based on allegations of illegal activity and safety risks in a shared housing unit.

• The Landlord and Tenant Board found the appellant had permitted another person to engage in illegal acts on the premises.

• The appellant argued the findings were based on no direct evidence and insufficient reasoning, amounting to legal error.

• The Divisional Court held that circumstantial evidence and inferences made by the adjudicator were valid under the balance of probabilities standard.

• Claims of procedural unfairness, bias, and improper use of hearsay were rejected by the reviewing court.

• The appeal was dismissed, and the eviction order upheld, with $4,000 in costs awarded to the respondent.

Background and housing context

Ryan McAvany resided in a five-bedroom residential unit operated by Kingston Home Base Non-Profit Housing, a provider of supportive housing for vulnerable individuals, including those with mental health and chronic housing needs. The housing arrangement involved shared living with four other tenants and included common areas. In May 2022, the housing provider issued two notices to terminate McAvany’s tenancy, citing illegal acts and serious disruption or safety concerns within the rental complex.

Eviction proceedings and Board findings

A hearing before the Landlord and Tenant Board (LTB) spanned multiple sessions from late 2022 to early 2024. The landlord presented evidence including testimony from a Kingston police officer, several housing caseworkers, and program staff. Key allegations involved drug activity and weapons found at the unit, with a specific focus on the presence and actions of a third party, Mr. Lapointe, who was arrested in the unit for possession of illegal drugs and a replica weapon. The Board concluded that McAvany either permitted or was willfully blind to illegal acts committed by Lapointe in the home. The adjudicator found that the appellant’s continued association with Lapointe and the nature of the evidence supported termination of tenancy under the Residential Tenancies Act, 2006. McAvany’s tenancy was ordered terminated effective June 2, 2024, and he was required to pay rent arrears and compensation.

Request for review and appeal

McAvany requested a review of the decision, which was dismissed. He then appealed to the Divisional Court, arguing that the Board made legal errors by relying on unsupported inferences, admitting hearsay, failing to provide sufficient reasons, and displaying bias. He claimed there was no direct evidence that he permitted or participated in the alleged illegal conduct and that the adjudicator failed to articulate how key findings were reached.

Divisional Court’s analysis and ruling

The Divisional Court rejected all grounds of appeal. It emphasized that the standard of proof in landlord-tenant proceedings is the balance of probabilities, not the criminal standard of beyond a reasonable doubt. The court found that the adjudicator’s conclusions were supported by a substantial evidentiary record, including circumstantial evidence, photographs of seized items, and testimony about the appellant’s association with Mr. Lapointe. The Court held that a finding of illegal acts based on reasonable inference was permissible and that no legal error was made.

On the issue of procedural fairness, the Court ruled that the Board was not obligated to cite every piece of evidence or adopt a specific formula in its reasoning. It also dismissed concerns about hearsay, noting that administrative tribunals may rely on such evidence where appropriate. The appellant’s choice not to testify allowed the adjudicator to draw an adverse inference, which was within her discretion.

The Court also rejected claims of bias, finding that the adjudicator's directions and remarks did not rise to the high threshold needed to rebut the presumption of impartiality.

Outcome

The Divisional Court upheld the Landlord and Tenant Board’s eviction order, dismissed the appeal, and awarded $4,000 in costs to Kingston Home Base Non-Profit Housing. All interim stays of eviction were lifted, confirming that the original findings and remedies would proceed.

Conclusion

This case reinforces the authority of administrative tribunals to rely on circumstantial and lay evidence in eviction cases involving serious misconduct. It affirms that the threshold for appellate interference is high, particularly where findings are based on credibility, inference, and a full evidentiary record. The decision provides important guidance on procedural fairness and evidentiary standards under the Residential Tenancies Act.