COURT FILE NO.: DC-06-0012
DATE: 2007-01-19
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
GREAT UNION HOLDINGS LIMITED
Michael Harris, for the Respondent in Appeal
Plaintiff
- and -
RICHARD J. PALOVICK
Richard Palovick, personally
Defendant
HEARD: December 7, 2006, at Thunder Bay, Ontario
Platana J.
Motion on Appeal
BACKGROUND
[1] Prior to rendering the reasons in this matter, I am of the view that it is important to highlight the history of this case in as much as it demonstrates rather remarkably in my view, the difficulties courts can experience when there are self-represented individuals who know little of procedure and who themselves may have some personal difficulties.
[2] On July 10, 2006 the Ontario Rental Housing Tribunal issued a decision terminating the tenancy between the Landlord, Great Union Holdings Ltd., and the Tenant, Richard J. Palovick.
[3] On July 25, Mr. Palovick filed a "Notice of Appeal" seeking that an order be granted:
Replacing the said order of the Tribunal with an order setting aside the order of the Tribunal and dismissing the Landlord's application;
Alternatively, directing that the matters in issue in the proceeding be submitted for rehearing by the Tribunal for determination in accordance with the judgment of this court.
[4] On August 25 a Notice of Dismissal was issued indicating that the appeal had not been perfected within 30 days and that no order of the court had been obtained extending the time prescribed for the perfecting of the appeal.
[5] On August 31, the Respondent Landlord brought a motion to lift the automatic stay, or in the alternative, requiring the Tenant to vacate the premises pending the appeal. That motion was adjourned to September 7. On September 7 the matter was adjourned to September 21 preemptory on the Respondent with an order that the Respondent in the motion file material by September 14.
[6] On September 14, Mr. Palovick filed a "motion record" asking "that the Landlord's August 25 motion record be withdrawn or voided." On the same date, he brought what in essence was a motion to extend the time for the filing of the appeal. The motion to lift the stay was adjourned to September 21.
[7] On September 19, Mr. Palovick filed what he termed "Amending-Notice of Appeal." That appeared to be an attempt to get the extension of time saying that the motion should not be heard because of a pending appeal.
[8] On September 21, Justice Wright made an order extending the time for the perfecting of the appeal to October 12 and denied the Landlord's application to lift the automatic stay. He further indicated that the Landlord may apply for the matter on the understanding that the Landlord can apply for the matter to be heard by a single judge of the Divisional Court. If that consent were not obtained, the endorsement indicated that the motion could be renewed.
[9] On October 17, Mr. Palovick filed a motion which he described as "requesting extension in motions court on Tuesday, 17th October, 2006 to 22 February 2007." He stated in the grounds that he was going to see his family doctor and "I will ask him to request adjournment procedure to about 22 February 2007." An Affidavit filed contained a one paragraph comment"statements, disclosures, and request in my said 12 October 2006, requesting extension application, are the absolute truth."
[10] On October 17 the matter was adjourned to October 26 on consent. On October 30, Mr. Palovick filed what he described as "memo #5-Notice of Appeal regarding: a request for Mr. Geoffrey Filmore, building manager, for Great Union Holdings Ltd." That was adjourned to November 16.
[11] On November 16, the Landlord appeared before me on a motion seeking that this matter be heard by a single judge of the Divisional Court pursuant to Section 21(2)(c) of the Courts of Justice Act. Recognizing the difficulty that the Appellant was having in processing this appeal, and recognizing indeed that the appeal still had not at this time been perfected, Mr. Harris appearing for the Respondent, suggested nonetheless that it might be appropriate to permit the Appellant to argue the matter. I obtained confirmation from the Associate Chief Justice that in the circumstances, the matter could be dealt with by a single judge. No transcript was yet filed. The Appellant, Mr. Palovick, indicated that it had been prepared but that he had not paid for it, but that he would do so immediately. Mr. Harris made representations to the fact that he was prepared to deal with the appeal as the Respondent, without the necessity of the transcript and also without the requirement of having the Appellant file appropriate materials.
[12] I then made an endorsement that Rule 61.09(4) could be applied and that the appeal could be heard in the interests of justice, and with the Respondent consenting, that the Appellant need not file an appeal book or compendium, exhibit book, or a copy of the transcript. Furthermore he need not file a factum although if he chose to do so one should be filed at least two days prior to the appeal being heard. The Respondent was required to file a factum. The appeal was then fixed to be heard on November 30.
[13] On November 20, Mr. Palovick filed what he described as a Notice of Motion "Review of Single Judge's Order" or Rule 61.16(6). New trial – or CGA – 134(6)(7). Accompanying that Notice of Motion was an Affidavit sworn November 20 stating in its entirety"statements, disclosures, and requests in my said 20 November 2006 Notice of Motion, are the absolute truth."
[14] That motion was on the list in Motions Court on November 30. No one appeared in as much as my earlier endorsement of November 16 had fixed the matter for the appeal to be heard at 2:00 PM on that date. The matter was struck from the motions court list.
[15] On the afternoon of November 30, Mr. Harris appeared ready to deal with the appeal. The Notice of Motion previously referred to had been served, however, no time was stated on it and Mr. Harris indicated that he assumed that the motion was going to be heard at the time fixed for the appeal. As a result of that confusion, the matter was adjourned to December 4 before me.
[16] On December 4, the matter was further adjourned to December 7.
[17] On December 7, Mr. Harris appeared, as did Mr. Palovick. He again raised some issues with respect to health, however, there was no evidence before me of any kind which would suggest that Mr. Palovick was incapable of proceeding at that time. He has stated in previous Affidavits that he had been hospitalized for the 13 day period prior to the hearing of the appeal, however, his own information notes that there were occasions where he was in his own apartment. The only general requests of any medical information were that the matters be adjourned to February or March.
[18] Mr. Harris took the position that there were a number of complicating factors in this proceeding. To begin with, the appeal had still not yet been perfected, and as a matter of normal course ought to have been dismissed on that basis alone. Secondly, he noted, despite my previous endorsements giving Mr. Palovick an opportunity to file materials, nothing further had been filed. Mr. Palovick did attempt to file a factum at the very last minute. Mr. Harris had not seen the document which was entitled "Brief Factum of Tenant (A) New Trial – CJA 134 R61.16(6) and (B) 04 December 2006 Letter from Mr. Dennis Roddy is Redundant." Mr. Palovick again filed a one sentence letter from a doctor simply recommending that for medical reasons his court date be postponed until March, 2007. There were no specific reasons given and Mr. Palovick then refiled a fax which had been received by the Registrar's Office from the Thunder Bay Regional Health Sciences Centre on previous occasions.
[19] Mr. Harris took the position that the Landlord had already stretched itself sufficiently to permit Mr. Palovick to even be heard in court and that the matter should proceed. On that basis, I heard the appeal. The following is the disposition.
DISPOSITION
[20] This is an Appeal by the Tenant from a Decision and Order of the Ontario Rental Housing Tribunal dated July 10, 2004 whereby the tenancy between the parties was terminated and the Tenant was ordered to move out of the rental unit on or before July 21, 2006. In addition the Tenant was required to pay the Landlord costs of $150.00 for filing the application and $17.19 per day for the use of the unit from June 1, 2006 to the date he moved out. If the Tenant did not vacate the unit on July 21, 2006, as ordered, the Landlord was entitled to file the Order with the Court Enforcement Office to enforce the eviction and the Court Enforcement Office was directed to give vacant possession of the unit to the Landlord upon receipt of the Order.
[21] The Tenant appealed from the decision by way of a Notice of Appeal dated July 19, 2006. The stated grounds for the Appeal are that the Tribunal erred in law. The Appeal automatically stayed the Order of the Tribunal pursuant to Rule 63.01(3) of the Rules of Civil Procedure.
[22] On September 21, 2006 the Wright, J. allowed the Tenant an extension of time to prefect the Appeal and denied the Landlord's Motion to lift the Stay. The denial was made on the understanding that the Landlord could apply for the matter to be heard by a single Judge of the Divisional Court.
[23] On November 16, 2006, I heard the Landlord's Motion to have the matter expedited and heard by a single Judge of the Divisional Court pursuant to section 21(2)(c) of the Courts of Justice Act and the Tenant's Motion for a further extension of time to perfect the Appeal. The Parties agreed at that time that the Appeal could be heard by a single Judge sitting as a Judge of the Divisional Court. I recognized that the Applicant, who was appearing on his own behalf, was experiencing some difficulty understanding the process of the appeal and what the appeal could focus on. Mr. Harris was concerned that the matter would drag on indefinitely while waiting for the appeal to be perfected. He took the position that as the appeal had not been perfected and proper documentation not filed the appeal could have been immediately dismissed. However, he was also concerned that the tenant be given the opportunity to be heard in order that he might better understand the nature of the Tribunal ruling. He therefore suggested that he would not object to the matter proceeding without the necessity of the Appellant filing proper documentation but that he would file responding materials and the Appellant could be relieved from filing the documentation required to perfect the Appeal pursuant to Rule 61.09(4) of the Rules of Civil Procedure. I agreed with the foregoing and the Record was endorsed accordingly. The Landlord was required to file a Factum for the assistance of the Court and if the Appellant wished to rely on the transcript of the Tribunal Hearing it had to be filed by November 27, 2006.
[24] The reasons of the Tribunal found as a matter of fact that at the time of the Hearing on June 30, 2006, the Tenant had been a tenant in Unit 13 at 307 Bay Street in Thunder Bay for approximately 10 years. He had also taken on the role of tenant advocate which had brought him into ongoing discussions with the Landlord's agent and the building superintendent.
[25] The Landlord applied to the Tribunal for an Order terminating the tenancy of the Tenant pursuant to section 65 of the Tenant Protection Act, whereby the Landlord alleged that the Tenant was or had seriously impaired the safety of another person. Initially the Landlord had also sought to have the Tenant evicted because of damage and substantial interference with reasonable enjoyment, but it did not pursue these issues at the hearing.
[26] The Tenant applied for an Order determining that John B. Baxter, Great Union Holdings and Geoff Filmore had illegally entered his apartment, harassed, threatened or interfered with him, withheld a reasonable supply of a vital service that the Landlord's agents are obligated to supply under the tenancy agreement and because they had interfered with his reasonable enjoyment of his unit.
[27] Appearing on behalf of the Landlord were Mr. John B. Baxter, the Landlord's Agent and Mr. Geoffery Filmore, the Superintendent/Building Manager. Mr. D. Nyman, a former tenant in Unit 10 was called as a witness for the Landlord. The Tenant appeared on his own behalf and did not call any witnesses.
[28] Upon hearing the evidence of the Mr. Baxter, Mr. Filmore, Mr. Nyman and the Tenant, as well as reviewing correspondence from the Health Unit, the Fire Department and 6 tenants in the building, the Tribunal found in favour of the Landlord. In doing so it ruled that the termination of the tenancy was necessary to protect the health and safety of other tenants in the residential complex. The decision was based on the fact that the Tenant had, for the previous 12 months, continued to accumulate items and debris in his unit to the point that he created a fire hazard, caused a risk to the health of others, presumably from the insect and rodent infestation and that he escalated the risk by not permitting pest control or the public health inspector into his unit.
[29] The Tribunal also decided that the Tenant's applications were without merit for the following reasons:
a) Illegal entry – the Tribunal ruled that the Tenant had given permission for the Superintendent and the Public Heath Inspector to look into his apartment.
b) Vital Services – Member Metzler found that the service allegedly being with held; the provision of rent receipts, was not a vital service as described by the Act.
c) Harassment and Interference with Reasonable Enjoyment – as the incident complained of occurred in 2001, the Tribunal held that it was unable to rule on this matter because the application was not filed within 1 year of the incident as required by the Tenant Protection Act. However, Member Metzler did receive evidence on the complaint of the Tenant that the Landlord was harassing him through the issuing of Notices of Termination and applications to the Tribunal for his termination. She went on to rule that the Landlord had only filed one other application in the previous year and had acted reasonable in providing the notices and filing the Application and was proceeding in good faith and they were not brought to confuse the Tenant.
d) Harassment – The Tribunal found that the Superintendent was not stalking the Tenant and that the Tenants own evidence on this issue was contradictory and inconsistent. She also preferred the Superintendent's evidence on this issue.
e) Interference with Reasonable Enjoyment – the Tribunal found that the Landlord acted with diligence when the Tenant complained that a massage parlour was being run in the apartment next to his by determining that there was not excessive traffic into that apartment and therefore no massage parlour.
In each case evidence was provided by both the Tenant and the Superintendent.
[30] Under section 65 of the Tenant Protection Act, a Landlord may give notice of a termination of tenancy where the tenant has, through an act or omission, seriously impairs or has seriously impaired the safety of any person.
[31] If the Landlord has given the Tenant a notice to terminate the tenancy and the Tenant has not complied with the notice, the Landlord may apply to the Tribunal for an order terminating the tenancy and evicting the tenant.
[32] Mr. Harris has relied upon Section 196(1) of the Tenant Protection Act which states that a party has a right to appeal a decision of the Tribunal to the Divisional Court on a question of law alone.[^1] He further argues that the question of whether or not there is any evidence is a question of law. What inferences can be drawn from some evidence is at best a question of mixed fact and law. He argues that factual findings of the Tribunal are not subject to review. [^2]
[33] He submits that eviction matters involve a question of mixed fact and law which is not subject to appeal under the Act. If, however, it is subject to review, matters involving eviction fall within the expertise of the Tribunal and, therefore, the Tribunal should be afforded a great deal of deference. He submits, therefore, that the standard of review, if I determine that it is a question of mixed fact and law, is "patently unreasonable." In that regard he relies upon 626114 & 626115 Ontario Ltd. v. Tirado[^3] and O'Regan v. Commvesco Levinson-Viner Group[^4].
[34] I fully recognize that this has been a unique matter of proceeding with a case such as this. As I have previously noted, it was significantly complicated by the fact that the Appellant clearly did not understand the appropriate procedures and did not file the appropriate documentation. It is clear from reading the materials in this file, and also from the court appearances, that Mr. Palovick is an individual who suffers some difficulties in understanding. The history of the file would demonstrate that courts have given him extended leeway in order to permit him to bring a matter before the court which in all appropriateness, ought to have been dismissed before reaching this stage. That factor was acknowledged by the Respondent Landlord who consented to the court applying whatever rules could be applied in order to permit Mr. Palovick to have his day in court and to have the merits of this appeal considered on an appellant basis.
[35] In that aspect I have reviewed extensively, the reasons of the Tribunal. The reasons are extensive and are all factually based. The Tribunal dealt not only with the Landlord's application to terminate the tenancy, but also Mr. Palovick's numerous applications based on tenants rights. There is no issue raised with respect to any error in law.
[36] This appeal should be dismissed on the basis that it does not allege any error in law. Furthermore, if I am in error on that position, and this is a matter of mixed fact and law, I accept that the standard is patent unreasonableness and the decisions of the Tribunal are certainly not patently unreasonable.
[37] For all of these reasons, this appeal is dismissed.
[38] If requested costs are awarded to the Respondent fixed in the amount of $1,500.00.
Mr. Justice T. A. Platana
Released: January 19, 2007
COURT FILE NO.: DC-06-0012
DATE: 2007-01-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GREAT UNION HOLDINGS
Respondent
- and –
RICHARD J. PALOVICK
Appellant
REASONS FOR JUDGMENT
Platana J.
Released: January 19, 2007
/mls
[^1]: Meredith v. Leboeuf Properties Inc., [2000] O.J. No. 209
[^2]: Longhouse Village (Thunder Bay) Inc. v. Smolcec [2001] CarswellOnt 688, 143 OAC 137
[^3]: 2005 36461 (ON SCDC), [2005] CarswellOnt 4940 35 RPR (4th 224, 203 OAC 14
[^4]: [2006] CarswellOnt 5398