Executive Summary: Key Legal and Evidentiary Issues

• Scope of appellate review confined to questions of law under s. 210 of the Residential Tenancies Act, limiting the court’s ability to reweigh factual findings made by the Landlord and Tenant Board.
• Adequacy of the LTB’s assessment of evidence regarding the condition of the unit, hoarding, health and safety risks, and the member’s medical issues and efforts to arrange “extreme cleaning.”
• Sufficiency of evidence supporting the arrears finding, including reliance on the co-op’s ledger and testimony versus the member’s claim that he lacked clarity on the arrears and sought a meeting to resolve them.
• Application and exercise of discretion under s. 94.12 (analogous to s. 83) of the Residential Tenancies Act in balancing long-term tenancy, poverty, and medical issues against ongoing health and safety concerns in the unit.
• Procedural fairness and discretion in refusing adjournments in the face of repeated, inadequately supported medical-based delay requests, both at the LTB and on appeal.
• Fairness of the LTB’s procedural decision to revive and continue the hearing after the co-op’s missed appearance, in light of its authority to control its own process and the absence of demonstrated prejudice to the member.

Background and parties

The case concerns a long-term member of City Park Co-operative Apartments Inc., a housing co-operative incorporated under the Co-operative Corporations Act, who had lived in his unit for about 21 years. The co-op commenced eviction proceedings before the Landlord and Tenant Board (LTB) in October 2023, relying on two main grounds: significant arrears of housing charges and the deteriorated, hazardous condition of the member’s unit. Those LTB proceedings ultimately led to an eviction order, a failed review request, and then this statutory appeal to the Ontario Divisional Court.

Facts leading to the LTB eviction order

The co-op’s evidence described the unit as being in a state of extreme clutter and hoarding, with no clear pathways, no visible free kitchen surfaces, and a balcony completely filled with objects. Photographs were tendered to corroborate this account. Co-op witnesses testified that, despite an “extreme clean” in April 2023, the unit reverted within a few months to a condition they considered unclean and unsafe, including pest issues and the presence of dead bedbugs reported by pest control. The co-op also issued two N5C notices of termination (clutter/hoarding/unsafe conditions) in 2023, and testified that the unit did not improve during or after the voiding period. Notices of entry for inspections in mid-2024 and late 2024 were allegedly met with refusals, with witnesses stating that they could still see the unit remained substantially unchanged from the doorway.
The member did not accept the “hoarder” label and asserted that the co-op had exaggerated the state of the unit. He explained that he had undergone an extreme clean in April 2023, had thrown out many items over the past two years, and had tried to create pathways. He pointed to serious medical issues, including a history of multiple cancers and current health limitations, and said his health and fatigue prevented him from keeping the unit as the co-op demanded. He also expressed fear of using his locker for storage. Nonetheless, he acknowledged the unit needed a deep clean and indicated willingness to have another extreme cleaning.

Financial difficulties and arrears

On the arrears issue, the co-op relied on its ledger and testimony that arrears notices were sent monthly, inviting the member to come to the office to discuss repayment and payment plans. According to the co-op, the member did not attend the office to negotiate repayment. The co-op’s representative also said efforts were made to discuss restoring the member’s subsidy. The ledger and evidence led the LTB to find that, as of December 31, 2024, the member owed $7,848.00, consisting of unpaid housing charges, other unpaid charges, and the LTB filing fee, less refundable deposits. The member’s position was that he had asked for proof and a meeting to understand the arrears and work out a solution, and that economic problems in the film industry and the aftermath of receiving CERB had undermined his ability to pay.
The LTB accepted that the member had very limited income, sometimes relied on free food, and believed he could not afford alternative housing. It nevertheless concluded that he had persistently made late payments and was in arrears in the quantified amount.

The LTB’s decision on eviction and statutory discretion

The LTB determined that the member’s conduct—keeping the unit in extreme clutter and denying co-op access—substantially interfered with the reasonable enjoyment and lawful rights of the co-op and other occupants. It found that even with support such as an extreme clean, the member was unable to maintain ordinary cleanliness for more than a short period. The LTB also observed that previous efforts, including a prior consent order in 2022 requiring the unit to be restored to a reasonable state of cleanliness, had failed to produce lasting change, and that conditions remained problematic even as the 2024 hearings proceeded.
In considering discretionary relief, the LTB turned to the equivalent of s. 83 for co-operatives—s. 94.12 of the Residential Tenancies Act—requiring consideration of all relevant circumstances in determining whether to refuse an application or to postpone enforcement of an eviction. The LTB expressly examined the member’s long tenancy (about 20 years), his role in the co-op community, his extremely limited income, and the lack of affordable alternatives. It weighed these against the longstanding health and safety concerns, the co-op’s extensive attempts to work with him, and his inability to maintain compliance. Exercising this discretion, the LTB chose not to refuse eviction but did postpone the termination date, ordering a non-remedial termination of his occupancy with a move-out deadline of May 31, 2025, and ordering payment of the quantified arrears.

Procedural history, adjournment requests, and review

The procedural history was marked by repeated adjournment and extension requests, almost all grounded in medical reasons. At the LTB, an initial adjournment was granted in January 2024 on the basis that the member said he had to be in hospital, with the return date made peremptory on him. A further adjournment request in July 2024, based on a “massive headache,” was denied because there was no contemporaneous medical documentation and because of the co-op’s evidence of serious safety concerns if the proceeding were further delayed. Another adjournment request in December 2024, again on medical grounds, was denied before the hearing.
After the March 26, 2025 LTB order, the member sought review. The LTB dismissed the review request on May 8, 2025, finding there was no serious error in the decision and that he was mainly trying to re-argue the merits. A request for extended time to provide additional written submissions was refused because the member waited until day 29 after the order to request the audio recordings, a day before the 30-day review deadline, and did not offer a reasonable explanation for having failed to act earlier. The LTB concluded that the extension request was unreasonable and that upcoming hospital visits did not justify the late efforts.

Appeal to the Divisional Court and standard of review

The member appealed to the Divisional Court under s. 210 of the Residential Tenancies Act, which restricts the court to questions of law only. The standard of review for such questions is correctness. This meant the court could not reweigh evidence or substitute its own view of the facts; it could only intervene if the LTB applied the wrong legal test, made legal errors, or made a factual finding in the complete absence of evidence. The appellant advanced several grounds: failure to consider medical and financial evidence properly; lack of proof of arrears; improper handling of statutory relief under s. 94.12; error in reviving the hearing after the co-op’s missed appearance; and failure to properly consider his medical situation when refusing adjournments.
The court also had to address a preliminary issue: a last-minute adjournment request at the appeal hearing. The appellant participated by telephone from a hospital, citing severe night and day sweats and pending blood work, but offered no contemporaneous medical documentation and declined the court’s suggestion to have someone at the hospital explain the expected timing of his tests. Given the long history of similar requests, minimal corroboration, and substantial delay in a case involving health and safety concerns in the unit, the court refused the adjournment. A later note from his family physician, submitted after the hearing, confirmed long-standing sweating issues but did not show an inability to attend or participate that day; the judge held that it would not have changed the outcome on the adjournment.

Analysis of the evidentiary and legal issues on appeal

On the allegation that the LTB failed to consider medical evidence and the member’s efforts to arrange extreme cleaning, the Divisional Court found the LTB had in fact canvassed that evidence in detail. The LTB summarized the co-op’s inspection evidence, the photographs, the repeated denials of entry, and the prior extreme clean, as well as the member’s testimony about his cancer history, fatigue, cleaning efforts, and desire for further extreme cleaning. It then drew conclusions that even with support, the unit was quickly reverting to an unacceptably cluttered, hazardous condition and that the member effectively acknowledged the unit’s unacceptable state. The appellate court held that this was a permissible factual assessment and did not involve ignoring relevant evidence or making findings unsupported by the record.
Regarding arrears, the court accepted that the LTB had before it the co-op’s ledger and testimony about arrears notices, attempts to discuss repayment and subsidy, and the member’s pattern of late payment. The LTB’s conclusion that the member owed $7,848.00 as of December 31, 2024 was treated as a factual finding rooted in evidence, leaving no question of law for the court to reconsider. The court emphasized that disagreements with how the LTB weighed competing testimony and documents do not, without more, raise legal errors.
On discretionary relief under s. 94.12, the court noted that the LTB expressly identified and weighed the relevant circumstances: length of occupancy, the member’s role in the community, his very low income and lack of alternatives, and the long-standing, unresolved health and safety problems in the unit. The LTB exercised its discretion by postponing, but not refusing, the eviction. The Divisional Court found no error of law in this reasoning and confirmed that merely disagreeing with how the factors were balanced is insufficient to overturn the decision.
The appellant also challenged the LTB’s choice to revive the hearing after the co-op and its counsel missed an April 11, 2025 date. After about half an hour, the LTB had indicated the application would be dismissed as abandoned, but before any formal order issued, the co-op’s counsel explained that the date was missed inadvertently and asked that the matter proceed. The LTB granted a new hearing date. The Divisional Court held that the LTB has broad procedural authority to manage its own process and that such decisions attract deference. In this case, the member received notice of and attended the subsequent hearing and was able to participate; no unfairness or prejudice was demonstrated.
Finally, the court rejected the argument that the LTB’s refusal of adjournments was procedurally unfair. It accepted that the Board was entitled to consider the pattern of repeated, inadequately documented medical-based delay requests and the co-op’s ongoing evidence of serious unit-related risks. It found the LTB’s conclusion that these were persistent attempts to delay the proceedings was reasonably open on the record and that denying further adjournments was not a breach of fairness. The Divisional Court likewise refused to admit new materials the member filed on appeal, holding they did not meet the strict test for fresh evidence and, in any event, would not affect the result.

Outcome and financial consequences

In the end, the Divisional Court dismissed the appeal and left the LTB’s eviction and monetary orders undisturbed. The co-op remained entitled to terminate the member’s occupancy, enforce the move-out order, and recover the arrears of $7,848.00 that the LTB had found owing as of December 31, 2024. On the appeal itself, the court awarded the co-op partial indemnity costs of $1,000.00, inclusive of HST and disbursements. Combining the LTB arrears award and the Divisional Court costs order, the successful party—City Park Co-operative Apartments Inc.—had a total of $8,848.00 ordered in its favour, with no further quantifiable monetary relief identified beyond those amounts.