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  • Petar Guzina

Jurisdiction to Reinstate a Residential Tenancy

A tenant may challenge an eviction order by requesting that the Landlord and Tenant Board Review the order or by filing an Appeal to the Divisional Court of the Superior Court of Justice for Ontario. Occasionally, the Review request or Appeal is filed after the eviction has already been enforced. The tenant may, in certain circumstances, seek to be reinstated to the rental unit.

Divisional Court

In the recent Divisional Court case of Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244 the tenant made the request to be reinstated and the Court considered its Jurisdiction to reinstate and the requirements for interim relief pending an appeal.

The Court in Ali v. New Spadina followed the reasoning in the recent case of Young v. CRC Self-Help, 2020 ONSC 1874 which was covered briefly in these blog pages here. The Court's jurisdiction is found in section 134(2) of the Courts of Justice Act, which provides: On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.

Once satisfied that it has jurisdiction to reinstate, the Court in both Ali v. New Spadina and Young v. CRC Self-Help applied the three part test for injunctive relief set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC). The three part test is a) Is there a serious issue to be tried? b) Will the moving party suffer irreparable harm if the motion is refused? c) Does the balance of convenience favour granting the motion?

In Ali v. New Spadina the Court denied the motion to reinstate the tenant. The main factor mitigating against reinstatement appears to be the fact that another tenant was already residing in the rental unit with a valid lease; although there were other factors that favoured not reinstating as well.

Landlord and Tenant Board

The Board's jurisdiction to reinstate a tenant into a rental unit after the tenant has been evicted by the Court Enforcement Office (Sheriff) is found in section 23(1) of the Statutory Powers Procedure Act. Section 23(1) provides: A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

This authority was affirmed by the Divisional Court in Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692 (Div. Ct.). The Board has long relied on section 23(1) as providing jurisdiction to reinstate a tenant after eviction has been enforced.

Although I am unaware of any Board order that specifically uses the three part test in RJR-MacDonald, I see no reason why it should not also apply when the Board is considering reinstating a tenant pending a review hearing.

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