Law360 Canada (October 14, 2026, 1:40 PM EDT) --
 |
| Balvinder Kumar |
In this case, the Divisional Court upheld the housing rights of a tenant who is a survivor of intimate partner violence. The tenants in this case were a married couple, Denise Browne and Ricky Browne, who had two children. They resided in the rented unit for more than 10 years.
A domestic violence incident removed Ricky from the rental unit. Only Ricky was named on the lease. He signed a notice to end the tenancy after five months of leaving the unit. Based on this notice, the landlord, Henley Crescent, obtained an
ex parte eviction order from the Landlord and Tenant Board. Denise was able to set aside this order as the board decided that she was a tenant and could remain in the unit (Set Aside Decision). Obviously, the landlord wasn’t happy and he applied for a review of the Set Aside Decision. The landlord was successful (First Review Decision). Denise filed for a second review. The board dismissed her request to review the First Review Decision (Second Review Decision). The appeal to the Divisional Court is from these two review decisions:
Browne v. Henley Crescent, 2026 ONSC 455.
Velvet R: ISTOCKPHOTO.COM
The Divisional Court allowed the appeal and set aside the First and the Second Review Decisions. Questions of law and procedural fairness are reviewed on a standard of correctness in any appeal. The divisional clerk held that the First and the Second Review Decisions erred in law, which was sufficient to set aside the two review decisions. The board made two errors in law, which were:
1. The board erred in conducting a review in the absence of a serious error;
2. The board erred in its interpretation of s. 3(2) of the Regulations.
Let’s look at some of the provisions of the board and its jurisdiction to review an order stated by the court to help understand the case.
1. Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 provides that “[a] tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.”
2. Rule 26 of the Landlord and Tenant Board Rules of Procedure grants the board the discretion to review its orders. Rule 26.8 makes it clear that a request to review an order must provide “sufficient information to support a preliminary finding of an alleged serious error or an explanation as to why the requestor was not reasonably able to participate in the hearing.”
3. The board’s Interpretation Guideline 8 makes it clear that the board will only exercise its discretion to review an order if one of these two conditions exist. The guideline also makes it clear that a review is not an opportunity for the parties to present a better or different case than was presented at the hearing. Absent an application of improper principles or insufficient evidence to support the board’s conclusions the review should not be granted.
4. Guideline 8 also gives examples of what is a serious error. They include an error of jurisdiction, a procedural error that raises issues of natural justice, an unreasonable finding of fact on a material issue, new evidence that was unavailable at the hearing and could affect the result, an error in law and an unreasonable exercise of discretion that results in an order outside the “usual range of remedies or results and where there are no reasons explaining the results.”
5. Section 2(1) of the Act defines a tenant as including “a person who pays rent in return for the right to occupy the unit.” The definition of “rent” in s. 2(1) includes consideration paid on behalf of a tenant.
The board’s jurisprudence on who is a tenant and who is an occupant is well established, and it applies to Denise. The First Review Decision found the facts of the case to be insufficient to support the finding that she was a tenant; there is no basis for finding that the Set Aside Decision’s conclusion on the issue was unreasonable. It was consistent with the statutory scheme of the Act, it was consistent with the remedial and tenant protection purpose of the Act, and it was consistent with the board’s jurisprudence on implied tenancy agreement. The definition of “tenant” in the Act is “broad and inclusive and should be broadly and liberally construed.” As such, the Set Aside Decision meets all the hallmarks of a reasonable decision and that cannot be dismissed. The threshold for review was not met, and the Set Aside Decision should be restored.
The board also erred in its interpretation of s. 3(2) of the Regulation.
Subsection 3(2) of the Regulation provides that if a tenant vacates a rental unit without giving notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act.
The Regulation also provides a number of circumstances where this provision would not apply. None of the circumstances enumerated in the Regulations are applicable to this case. The express wording of s. 3(2) of the Regulation requires:
(a) That the tenant spouse vacate the unit without giving notice to terminate or entering into an agreement to terminate the tenancy under the Act; and
(b) That the unit be the principal residence of the tenant’s spouse.
Both these conditions are satisfied in this case. Section 3(1) of the Regulation is further designed to protect the spouse of a tenant if the tenant dies. Subsection 3(1) states that if a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in ss. 2(1) of the Act, unless the spouse vacates the unit within the 30-day prescribed period in subsection 91(1) of the Act. Section 3 of the Regulation is designed to offer the spouses of tenants who occupy a rental unit that is their principal residence protection in the event that the tenant spouse is no longer around, either because they have died or because they have vacated the unit.
As this case revolves around the definition of a tenant, the decision reinforces and interprets the tenant protection clauses of the legislation and is a reminder that adequate protection is required to the tenants who are survivors of domestic violence in their rental properties.
Balvinder Kumar practises real estate law (residential and commercial) and is a freelance writer and author with LexisNexis.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.