Executive Summary: Key Legal and Evidentiary Issues

• Validity of the tenant’s written notice of termination under section 44(2) of the Residential Tenancies Act, 2006 (RTA), including the requirement that termination be effective on the last day of the rental period
• Characterization of the email exchange between the parties as an enforceable agreement to terminate the tenancy under section 77 of the RTA, and whether “end of June” equates to June 30, 2024
• Limits of appellate review to questions of law only under section 210(1) of the RTA, precluding reassessment of factual findings made by the Landlord and Tenant Board
• Assessment of the evidentiary weight of the parties’ emails, particularly whether the landlord’s acceptance and the tenant’s later objections undermined the existence of a binding termination agreement
• Scope and exercise of the Board’s discretion under section 83 of the RTA to refuse or postpone eviction, including its consideration of hardship factors and statutory criteria for refusing eviction
• Alleged failure by the Board to consider refusing eviction (as opposed to merely postponing it), and whether the reasons adequately showed that section 83(2)–(3) had been applied

Background and facts

The case of Hamilton v. Hafez arose out of a residential tenancy dispute between Angela Hamilton, the tenant, and Kefah Hafez, the landlord, concerning the termination of Ms. Hamilton’s tenancy and her eventual eviction. The tenancy was on a monthly basis, with rent payable at the beginning of each month. The dispute centered on the validity of the tenant’s notice of termination, a later email exchange that allegedly fixed a new termination date, and whether the eviction should be refused or postponed in light of Ms. Hamilton’s personal circumstances.
On February 9, 2024, Ms. Hamilton gave written notice of termination of her lease, purporting to end the tenancy effective April 9, 2024. Because the tenancy was monthly, and rent was due at the start of each month, the statutory framework required that any termination be effective on the last day of the rental period, with at least 60 days’ notice. As such, while she gave roughly 60 days’ notice, she specified an incorrect termination date under the governing statute.
Shortly thereafter, the tenant, through an email apparently sent by her daughter, requested an extension of the termination date from April to the “end of June” 2024. The landlord testified before the Landlord and Tenant Board that he received this request on February 20, 2024, and that he responded after consulting with a new incoming tenant. In an email dated February 23, 2024, the landlord wrote to Ms. Hamilton that the new tenant had agreed, with difficulty, to postpone his move until June 2024, and that he was “very happy to inform” her that he had fulfilled her request and hoped this extension would help her find another house. This email formed the crux of the landlord’s position that there was a binding agreement between the parties to end the tenancy at the end of June 2024.
Later correspondence complicated the relationship. At one point, the landlord referred to a move-out date of May 30, 2024. Ms. Hamilton responded in strong terms, in capital letters, calling this “BULL SHIT,” indicating she did not accept that date. The landlord repeated his position that she would be out by the end of May. The tenant maintained that her original email requesting to extend to the end of June had been miscommunicated by her daughter and did not reflect her actual intention to terminate on that date. These communications set the stage for a contested hearing before the Landlord and Tenant Board.

Proceedings before the Landlord and Tenant Board

The landlord applied to the Landlord and Tenant Board under section 77 of the Residential Tenancies Act, 2006 (RTA), which allows a landlord to seek an order terminating a tenancy and evicting a tenant if the landlord and tenant have entered into an agreement to terminate the tenancy. The Board’s central task was to determine whether the parties had, in fact, agreed on a termination date and, if so, whether and when the tenancy should be brought to an end.
In its reasons, the Board found that the tenant’s February 9, 2024 notice of termination, although defective in strict statutory terms because it did not end on the last day of the rental period, nonetheless provided adequate notice of the tenant’s intention to leave. More importantly, the Board accepted the landlord’s evidence about the subsequent email exchange. It found that the tenant had requested an extension of the termination date to the end of June 2024 and that the landlord, by his February 23, 2024 email, agreed to that request. On that basis, the Board concluded that the parties had formed a binding agreement to terminate the tenancy at the end of June 2024, which it treated as June 30, 2024, the last day of the monthly rental period.
The Board did not accept the tenant’s evidence that her daughter had misunderstood or mis-stated her instructions in the email asking to move the termination date to late June. It held that this explanation was not persuasive and preferred the clear wording of the email and the landlord’s testimony about the exchange. These were treated as factual determinations within the Board’s core expertise.
The Board then turned to section 83 of the RTA, which provides the Board with discretion to refuse or delay eviction even where a ground for eviction has been established. Section 83(3) lists specific circumstances in which eviction should be refused, such as where the landlord is in serious breach of obligations, or where the application is retaliatory because the tenant has exercised legal rights, complained to authorities, or is a member of a tenants’ association, or where eviction is sought due to occupation of the unit by children. The Board concluded that none of these statutory refusal criteria were engaged on the evidence.
However, the Board did consider Ms. Hamilton’s personal circumstances under section 83(2), including that she lived in the unit with four children, depended on Ontario Disability Support Program (ODSP) income, and had health concerns. Balancing her hardships against the landlord’s interests, the Board found it would be unfair to postpone the eviction indefinitely and instead chose to grant a substantial but finite delay before the eviction would take effect. It ultimately ordered termination and eviction but postponed the actual eviction date to allow Ms. Hamilton additional time to relocate.

Issues on appeal

Ms. Hamilton appealed the Board’s decision to the Divisional Court (Ontario Superior Court of Justice) on three grounds. Under section 210(1) of the RTA, an appeal from the Board lies only on a question of law and must be brought within 30 days of receiving the Board’s order. There is no right of appeal on pure findings of fact.
The tenant framed her grounds of appeal as follows: first, that the Board erred in law in finding that her written notice of termination was valid; second, that the Board erred in law in finding that she and the landlord had agreed to terminate the tenancy as of June 30, 2024; and third, that the Board erred in law by failing to consider whether it should refuse to terminate the tenancy under section 83 of the RTA, rather than merely postponing eviction.
Her first ground challenged the Board’s conclusion that her February 9, 2024 notice of termination was legally valid under section 44(2) of the RTA, which specifies that a notice to terminate a monthly tenancy must be given at least 60 days before the specified effective date and that the effective date must be the last day of the rental period. The tenant argued that her notice, being effective April 9 rather than April 30, did not comply with the statute and should not have been treated as valid.
Her second ground asserted that there was no evidence before the Board to justify a finding that the parties had agreed to terminate the tenancy on June 30, 2024. She contended that the Board effectively manufactured a date without evidentiary support, which would amount to an error of law by making a finding with no evidence.
The third ground focused on the Board’s treatment of section 83. The tenant asserted that the Board only considered whether to postpone eviction and failed to consider fully its discretion to refuse eviction in light of her personal circumstances and the hardship she and her children would suffer if required to move.

Court’s analysis and reasoning

On the first ground, the Divisional Court agreed with the tenant that her February 9, 2024 notice was technically defective under section 44(2) of the RTA. Since the tenancy was monthly and rent was due at the start of each month, the statute required that the termination date be the last day of the rental period. A notice specifying April 9, 2024 therefore did not strictly comply with the Act. The judge observed that, in law, the effective termination date in compliance with the RTA would have been April 30, 2024, not April 9, 2024.
However, the court concluded that this error by the Board—treating the defective notice as valid—was ultimately of no significance to the outcome. The critical point was that, after this notice, the parties entered into a separate agreement by email that extended and fixed a new termination date at the end of June 2024. Because the Board’s decision ultimately rested on that later agreement rather than on the original notice, any mischaracterization of the notice’s validity was a harmless error and did not warrant intervention on appeal. Accordingly, the first ground of appeal was dismissed.
On the second ground, the court focused on the distinction between questions of fact and questions of law. The Board had found as a matter of fact that the tenant requested an extension of the termination date to the “end of June” and that the landlord, in his February 23, 2024 email, accepted that request and told her he had “fulfilled” it. The Board then interpreted “end of June” as June 30, 2024, the last day of the monthly rental period. The tenant argued that this amounted to an unsupported finding, but the court rejected that characterization.
Justice Robert Smith held that the Board’s inference that “end of June” meant June 30, 2024 was entirely reasonable and grounded in the evidence of the email exchange and the nature of a monthly tenancy. Determining the parties’ mutual intention from their words and conduct was a factual exercise. Because section 210(1) of the RTA permits appeals only on questions of law, and because there was some evidence capable of supporting the Board’s factual conclusion, the tenant had no right of appeal on this point. The Board was entitled to prefer the landlord’s evidence and to reject the tenant’s later explanation that her daughter had misinterpreted her instructions when sending the email. The second ground of appeal, being essentially an attack on the Board’s findings of fact, was therefore dismissed.
On the third ground, the court examined whether the Board had correctly understood and exercised its discretionary authority under section 83 of the RTA. Section 83(2)–(3) provides that, even when a ground for eviction is made out, the Board must consider all the circumstances and may either refuse to grant the eviction or postpone it. The tenant argued that the Board had only considered postponement and had failed to address the possibility of refusing eviction outright.
The court reviewed the Board’s reasons, which expressly referred to section 83 and to the requirement to consider “all of the disclosed circumstances.” The Board had recited the statutory criteria in section 83(3) that can require refusal of eviction—such as serious landlord breaches, retaliatory applications, and situations involving tenants’ enforcement of rights or children’s occupancy—and found that none applied on the evidence. It then specifically addressed the tenant’s circumstances, including her four children, her ODSP income, and her health challenges, and weighed these against the landlord’s interests.
Justice Smith held that the Board had properly turned its mind to section 83, both to the possibility of refusal and to the possibility of postponement. By deciding to grant a significant but not indefinite delay and by stating that a refusal of eviction (allowing the tenant to remain indefinitely) would be unfair to the landlord, the Board implicitly but clearly declined to refuse eviction. The mere fact that the tenant wanted the discretion exercised differently did not establish an error of law. The Board had considered the proper statutory factors and exercised its discretion within the correct legal framework. The third ground of appeal was therefore also dismissed.

Outcome and practical implications

In the result, the Divisional Court dismissed Ms. Hamilton’s appeal in its entirety, affirming the Landlord and Tenant Board’s decision to terminate the tenancy and order eviction. The court accepted that, despite the initial defect in the tenant’s notice, the parties later reached a binding agreement by email to terminate the tenancy at the end of June 2024, and that the Board’s interpretation of “end of June” as June 30, 2024 was a permissible factual finding. It further held that the Board had properly considered its remedial discretion under section 83 of the RTA, taking into account both the statutory refusal criteria and the tenant’s hardships, and had reasonably decided to postpone, but not refuse, eviction.
The court added one further accommodation by delaying the effective eviction date to January 31, 2024 as stated in the reasons, thereby granting the tenant additional time beyond what the Board had ordered to find alternative accommodation. It made no order as to costs, meaning each party bore their own legal expenses. Accordingly, the successful party in the litigation was the respondent landlord, Kefah Hafez, and there was no monetary award, costs, or damages ordered in his favour, so the total amount ordered in favour of the successful party was effectively zero.