s.83 Discretion Framework
"Having Regard to All the Circumstances"
s.83(1): "Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement, refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse."
Broad discretion: LTB considers all circumstances (not limited to statutory factors)
Outcomes:
- Grant eviction: Order eviction (standard or delayed by 11 days minimum)
- Refuse eviction: Dismiss application (tenancy continues)
- Conditional order: Eviction stayed if tenant complies (payment plan, behavior modification)
LTB Can Refuse Eviction or Delay Eviction
Refuse eviction: Tenancy continues despite proven grounds
Example:
- L1 (arrears $3,000): Landlord proves arrears, but LTB refuses eviction
- Reasons: Tenant lost job due to illness (2 months), now re-employed, offers payment plan, 8-year tenancy with perfect payment history until crisis
- Order: Tenant pays arrears over 6 months ($500/month), eviction refused
Delay eviction: Grant eviction but postpone enforcement date
Example:
- L2 (damage): Landlord proves substantial damage, eviction granted
- Delay: Tenant has 3 children in school (June hearing), LTB delays eviction to September 1 (allows children to finish school year)
Mandatory Consideration Factors + Discretionary Factors
Mandatory factors (s.83(2)):
- Tenant's payment history (pattern of on-time payments vs. chronic lateness)
- Tenant's conduct (complied with lease terms vs. repeat violations)
Discretionary factors (not exhaustive):
- Length of tenancy
- Personal circumstances (illness, job loss, family crisis)
- Children or vulnerable persons
- Difficulty finding alternative housing
- Landlord's circumstances
- Prejudice to landlord
- Payment plan proposal
- Likelihood of compliance
Factors Favoring Relief
Circumstances that increase likelihood LTB will refuse or delay eviction.
Tenant Circumstances
Length of tenancy (long-term tenants favored):
- <1 year: Short tenancy, less weight
- 1-5 years: Moderate weight
- 5-10 years: Significant weight (established tenancy)
- >10 years: Strong weight (long-term stable tenant)
Example:
- 15-year tenancy: Tenant in unit since 2010, perfect payment history until 2024 job loss
- Relief likelihood: High (long-term tenant, isolated crisis)
Payment history (first-time arrears vs. chronic):
- First default: Isolated incident (job loss, medical emergency) → relief likely
- Chronic default: Late every 3-4 months for years → relief unlikely
Example:
- Tenant A: 5 years in unit, first late payment (COVID job loss, 2 months arrears)
- Tenant B: 2 years in unit, late payments 8 times (paid eventually, but chronic lateness)
- Relief: Tenant A likely (crisis), Tenant B unlikely (pattern)
Personal circumstances (illness, job loss, family crisis):
- Medical emergency: Hospitalization, surgery (could not work, pay rent)
- Job loss: Layoff, business closure (not voluntary quit)
- Family crisis: Death, divorce, family member illness
Evidence required: Medical notes, termination letter, death certificate (prove circumstances)
Example:
- Tenant: 3 months arrears ($6,000), explains hospitalization for cancer treatment (unable to work)
- Evidence: Doctor's note confirming treatment dates, medical leave documentation
- Relief likelihood: High (medical crisis, not willful default)
Children/vulnerable persons (school disruption, disabilities):
- Children: Eviction mid-school-year disrupts education
- Elderly: Relocation stress, health impacts
- Disabilities: Accessible unit difficult to replace
Example:
- Tenant: Single mother, 2 children (ages 8, 11) in local school
- Eviction date: March (mid-school-year)
- Relief argument: Delay eviction to June 30 (end of school year) to minimize disruption
Difficulty finding alternate housing (affordability crisis, discrimination):
- Affordability: Current rent $1,200/month (below market), comparable units $1,800/month (tenant cannot afford)
- Discrimination: Tenant faces barriers (single mother, social assistance, poor credit) - hard to find landlord
Example:
- Tenant on ODSP: Current rent $1,200 (rent-controlled), ODSP shelter allowance $600/month
- Market rent: $1,800/month (tenant cannot afford even with subsidy)
- Relief likelihood: High (eviction effectively renders tenant homeless)
Landlord Circumstances
Financial position (can afford delayed payment):
- Small landlord (1-2 units, relies on rent for mortgage): Less discretion (prejudice if delayed)
- Large landlord (50+ units, corporate owner): More discretion (can absorb short delay)
Example:
- Landlord: Individual owner, 1 rental property, mortgage $2,500/month (relies on tenant's $2,000 rent to cover 80%)
- Arrears: $6,000 (3 months)
- Prejudice: Landlord facing own financial hardship (may lose property if tenant not paying)
- Relief likelihood: Reduced (landlord needs rent to survive)
Good faith issues (landlord contributed to problem):
- Landlord breached obligations: Failed to maintain, harassed tenant (contributed to tenant's stress, job loss)
- Illegal actions: Landlord illegally entered unit, changed locks
Example:
- Tenant arrears: $3,000
- Tenant explanation: Landlord failed to provide heat (January-February), tenant withheld rent pending repairs
- Landlord filed L1: Despite not fixing heat
- Relief likelihood: High (landlord's breach contributed to arrears - LTB may order heat repair + refuse eviction)
Alternative remedies (payment plan vs. eviction):
- Payment plan proposed: Tenant offers realistic plan to repay arrears over 6-12 months
- Landlord refuses: Insists on immediate eviction
- LTB: May impose payment plan over landlord's objection (alternative to eviction)
Factors Against Relief
Circumstances that decrease likelihood of relief (eviction more likely).
Repeat Defaults
Previous conditional orders: Tenant breached prior payment plan
Example:
- 2023: L1 application, LTB granted conditional order (tenant pays $3,000 arrears over 6 months)
- 2024: Tenant breached payment plan (missed 3 of 6 payments), new L1 filed for $5,000 arrears
- Relief likelihood: Very low (second default, breached previous conditional order)
Pattern: Second N4 within 12 months → relief rare (already had chance)
Significant Arrears (3+ Months Rent)
Magnitude of debt: LTB less likely to grant relief if arrears large (tenant unlikely to repay)
Examples:
- $2,000 arrears (1 month): Relief likely (small debt, manageable payment plan)
- $10,000 arrears (5 months): Relief unlikely (large debt, tenant demonstrated cannot afford unit)
Financial viability: Can tenant realistically repay?
- Tenant income: $2,000/month, rent $1,500/month, arrears $9,000
- Analysis: Tenant cannot afford unit ongoing ($1,500 rent + arrears repayment = unaffordable)
- Relief: Unlikely (eviction inevitable, delay only postpones)
No Payment Plan Offered or Breached Plans
No proposal: Tenant requests relief but offers no repayment plan
Example:
- Tenant: "Please don't evict me, I need more time"
- No plan: Tenant does not propose payment schedule, does not explain when can pay
- Relief likelihood: Low (LTB needs concrete plan to grant conditional order)
Breached previous plan: Tenant had payment plan, breached it
Example:
- 2023 payment plan: Pay $500/month for 10 months ($5,000 total)
- Actual payments: Paid $500 months 1-3, then stopped (breached)
- Current application: New arrears $7,000, tenant proposes new payment plan
- Relief: Unlikely (already failed to comply with prior plan - unlikely to comply with new one)
Ongoing Issues (Not Just Past Defaults)
Current non-compliance: Tenant still not paying rent, still causing damage
Example:
- L1 hearing: June 15, arrears $6,000 (Jan-June)
- Tenant: Explains job loss in January, but has not paid June rent either (still accumulating arrears)
- Relief likelihood: Low (problem ongoing, not isolated past crisis)
Contrast:
- Tenant: Arrears $4,000 (Jan-April), but has paid May and June on time (resumed payments)
- Relief likelihood: Higher (problem resolved, isolated 4-month crisis)
Prejudice to Landlord
New tenant lined up: Landlord has replacement tenant ready to move in (losing deal if current tenant stays)
Example:
- Landlord: Gave tenant N12 (own use), tenant did not vacate
- New tenant: Landlord's daughter moving from another city, job starts September 1
- Hearing: August 15
- Prejudice: If tenant stays, daughter has nowhere to live, loses job offer
- Relief: Unlikely (serious prejudice to landlord)
Landlord mortgage arrears: Landlord falling behind on mortgage due to tenant's non-payment
Example:
- Small landlord: Relies on rent ($2,000/month) to pay mortgage ($2,500/month)
- Tenant arrears: $8,000 (4 months)
- Landlord: Now 2 months behind on mortgage, facing foreclosure
- Relief: Unlikely (landlord's financial survival at stake)
Adjudicator Patterns
Empirical trends in LTB relief decisions (based on adjudicator practice, not statutory).
First N4: Relief Granted ~60% of Time (Payment Plans Common)
First-time arrears: LTB tends to give tenant one chance
Typical relief: Conditional order with payment plan
- Pay arrears over 6-12 months ($300-$500/month typical)
- Continue paying ongoing rent on time
- If breach any term → eviction without returning to LTB
Example:
- First N4: $3,000 arrears, tenant explains job loss (now re-employed)
- LTB order: "Tenant pays $3,000 as follows: $300/month for 10 months commencing July 1. Tenant must also pay monthly rent ($1,500) on 1st of each month. If tenant misses any payment, landlord may file for eviction without further hearing."
Second N4: Relief Rare Unless Extraordinary Circumstances
Second default within 12-18 months: LTB reluctant to grant relief (already had chance)
Extraordinary circumstances required:
- Severe medical emergency (hospitalization, life-threatening illness)
- Domestic violence (fled abusive partner, could not access funds)
- Natural disaster (fire, flood destroyed tenant's belongings, lost income)
Example:
- First N4 (2023): $2,000 arrears, payment plan granted
- Second N4 (2024): $4,000 arrears, tenant explains second job loss
- Relief: Unlikely (second default, pattern suggests cannot afford unit)
Exception:
- Second N4: Tenant in hospital for 3 months (coma after car accident), could not pay rent
- Relief: Possible (extraordinary circumstance beyond tenant's control)
Persistent Late Payment (N8): Relief Almost Never Granted
N8 grounds: Chronic lateness (pays eventually, but consistently late)
LTB reasoning: Tenant had multiple opportunities to pay on time, chose not to (no crisis excuse)
Relief: Rare (maybe delayed eviction to allow tenant to find new place, but eviction likely granted)
Example:
- N8: Tenant late 10 of 12 months (pays by 10th-15th each month, rent due 1st)
- Tenant explanation: "I get paid on the 10th, can't pay on 1st"
- LTB: "Tenant should arrange with employer to adjust pay schedule, or request rent due date change. Relief denied."
Landlord Own Use (N12): Cannot Delay Beyond 60 Days
N12 compensation period: Landlord gives 60 days notice + 1 month compensation
LTB discretion: Can delay eviction slightly (e.g., to end of school year), but NOT indefinitely
Maximum delay: Typically 2-3 months beyond 60-day period (allows tenant to find new place)
Cannot refuse entirely: If landlord proves good faith own use, LTB must grant eviction (only question is timing)
Example:
- N12 served: March 1 (60 days notice → May 1 termination)
- Hearing: April 15
- Tenant: Requests 6-month delay (until November) to find affordable housing
- LTB: Grants delay to July 31 (2 months beyond May 1 termination - allows tenant time to find place)
- Cannot grant: November delay (too long, prejudices landlord's own use)