) ) PENWORTH HOLDINGS INC. ) ) Martin Zarnett , for the Respondent (Landlord) ) Respondent (Landlord) ) ) – v. –, 2017 ONSC 4061

CITATION : Penworth Holdings Inc. v. Howe, 2017 ONSC 4061 DIVISIONAL COURT FILE NO.: 557/16 LTB NO.: TSL-66174-15 DATE: 20170629 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, NORDHEIMER and SPROAT JJ. BETWEEN: ) ) PENWORTH HOLDINGS INC. ) ) Martin Zarnett , for the Respondent (Landlord) ) Respondent (Landlord) ) ) – and – ) ) ALLAN HOWE ) R. Hardy , for the Appellant (Tenant) ) Appellant (Tenant) ) ) ) HEARD at Toronto: June 29, 2017 SWINTON J. (Orally) [ 1 ] The appellant, Mr.

Howe, appeals from an order of the Landlord and Tenant Board (the “Board”) dated October 18, 2016 that terminated his tenancy with the respondent landlord and ordered eviction as of March 31, 2017 based on the breach of an earlier order of the Board dated June 8, 2015, as amended. [ 2 ] In the first order, the Board found that the appellant’s abusive conduct toward the landlord’s contractor and managers amounted to harassment and substantially interfered with the landlord’s reasonable enjoyment of the complex and with the landlord’s lawful right, privilege or interest to provide a harassment-free workplace.

The Board exercised its discretion pursuant to s. 83(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) and granted relief from eviction on the condition that the appellant “shall not exhibit conduct that substantially interferes with the Landlord’s reasonable enjoyment of the premises or lawful right, privilege or interest of the Landlord, such as making insulting, rude or profane comments towards the Landlord or the Landlord’s agents.” [ 3 ] The respondent landlord subsequently applied pursuant to s. 78 of the Act to terminate the tenancy because of the appellant’s non-compliance with the condition.

At the hearing, it was not contested that the appellant uttered swear words to the superintendent twice on one occasion that were directed at a representative of the landlord who was not there. The Board concluded that this was a breach of the conditional order. See the transcript, November 17, 2015, p. 25 where the Board found: Substantial interference is specified as such as making insulting, rude or profane comments towards the landlord’s and the landlord’s agents and certainly it was rude, maybe profane, swearing at the landlord’s agents.

I mean, I do see that as substantial interference and I find that there has been substantial interference and breach of the order, and so then that brings us to

section 85 – 83 of the Act . [ 4 ] After an adjournment of many months, the Board held a further hearing where it heard evidence of incidents that occurred during the period of the adjournment. It found that there was a further incident in which the appellant yelled at and insulted the superintendent in March 2016. The Board decided that the tenancy should be terminated but postponed the eviction to March 31, 2017 because of the tenant’s lengthy occupancy of the premises and his medical issues. [ 5 ] An appeal lies to this Court only on a question of law ( s. 210(1) of the Act ).

The parties agree that the standard of review applicable to decisions of the Board is reasonableness. [ 6 ] The appellant argues that the Board erred in finding that his conduct amounted to substantial interference with the landlord’s reasonable enjoyment contrary to the condition in the first order, given that the swear words said did not amount to a significant interference, and they were not directed at the person who heard them. [ 7 ] The Board had ample evidence to find that the appellant contravened the condition in the 2015 order. There was no contest

that he made the remarks to the superintendent. The Board could reasonably conclude that there was a breach of the condition from the original order. [ 8 ] The Board reasonably exercised its discretion to refuse to grant relief from eviction, given the ongoing conduct of the appellant and the unlikelihood that conduct would change. Nevertheless, the Board postponed the eviction for several months in recognition of the appellant’s circumstances. [ 9 ] There is no basis for this Court to intervene. Among other reasons, none of the arguments raised by the appellant constitute questions of law.

In any event, the decision was reasonable in the circumstances, and accordingly, the appeal is dismissed and the stay of the Board decision is lifted. [ 10 ] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons delivered today, and the stay of the Board decision is lifted. Costs to the respondent fixed at $1,000.00 all in.” ___________________________ SWINTON J. I agree ___________________________ NORDHEIMER J. I agree ___________________________ SPROAT J.

Date of Reasons for Judgment: June 29, 2017 Date of Release: June 30, 2017 CITATION : Penworth Holdings Inc. v. Howe, 2017 ONSC 4061 DIVISIONAL COURT FILE NO.: 557/16 LTB NO.: TSL-66174-15 DATE: 20170629 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, NORDHEIMER and SPROAT JJ. BETWEEN:

PENWORTH HOLDINGS INC. Respondent (Landlord) – and – ALLAN HOWE Appellant (Tenant) ORAL REASONS FOR JUDGMENT SWINTON J. Date of Reasons for Judgment: June 29, 2017 Date of Release: June 30, 2017