Court File and Parties

COURT FILE NO.: 245/08 [Toronto] DATE: 20080715

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: TORONTO COMMUNITY HOUSING CORPORATION Landlord/Applicant (Respondent in Appeal)

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KIMBERLY JILKS and JUSTIN JILKS PETERSON Tenants/Respondents (Appellants)

BEFORE: Justice Lax

COUNSEL: F. Teixeira, for the Landlord/Applicant P. De Buono, for the Tenants/Respondents

HEARD: July 14, 2008

Endorsement

LAX J.

[1] The Landlord brings this motion to quash the Tenants’ appeal on the basis that it is manifestly devoid of merit. This power is exercised sparingly as it can be difficult to conclude that an appeal is devoid of merit without hearing it: Bank of Montreal v. Widenfeld, [2008] O.J. No. 2077 (S.C.J.) relying on Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.). I am satisfied that this is a proper case in which to exercise this power.

[2] The Tenants are mother and son. The Landlord brought an application to terminate the tenancy following a series of incidents that occurred in the early morning of July 29, 2007, which resulted in criminal charges being brought against the Tenants and a guest for, inter alia, obstructing a peace officer and assaulting a peace officer. The application to terminate the tenancy was heard over four days between November 2007 and April 2008.

[3] The Member gave comprehensive and cogent reasons and concluded that the Tenants had committed an illegal act. In reaching this conclusion, she carefully reviewed the evidence of the Tenants and their witnesses and of the Landlord and its witnesses. She was aware that in order to come to the determination that an illegal act has occurred, the proof must rise to a higher standard: Bogey Construction Ltd. v. Boileau, [2002] O.J. No. 1575 (Div. Ct.). She made adverse findings of credibility in respect of the Tenants’ evidence and explained why she preferred the evidence of the Landlord. She found the evidence “conclusive” that what occurred at the rental unit actually disturbed the Landlord and other tenants. She concluded, based on the evidence and the law, that the Landlord was entitled to an order for eviction.

[4] She then turned her mind to relief from eviction under s. 83 of the Act. She acknowledged that loss of social housing is a very serious loss of a tangible benefit that cannot easily be replaced. She took into account that an eviction order would affect a 12-year-old daughter who was innocent and that this would disrupt her life as well as the lives of the Tenants. She considered the length of the tenancy and that the tenants had not been involved in other similar incidents since the time of these events. She then wrote at para. 30:

However, I am faced with the inescapable conclusion that the Tenants have come before the Board with less than clean hands. If the Tenants had simply admitted that they drank too much and behaved foolishly by disturbing the peace and obstructing the police when they arrived, then I might seriously have considered granting the Tenants relief from eviction. But instead, the tenants deliberately tailored their evidence in order to paint themselves as entirely blameless, and pointed the finger of fault at the police who they described as “over reacting”. Given all the circumstances before me, I am of the view that it would be unfair to the Landlord to deny the eviction and as a result, the Landlord’s application should be granted.

[5] In order to resist the Landlord’s motion to quash, there must be a question of law that stands some chance of success. The Tenants focus their submissions on the Member’s failure to exercise her discretion in their favour under s. 83. They submit that in the context of public housing, the Landlord’s so-called “zero tolerance” policy when illegal acts are committed raises such an issue.

[6] Before the hearing, the Tenants sought the issuance of a summons to Derek Ballantyne, who is the Landlord’s Chief Executive Officer to question him on a press release from Toronto Community Housing that comments on the state of disrepair of Toronto’s social housing as a result of the downloading in 2001 by the provincial government of the day and includes the statement, “Housing that is falling apart leads to conditions where crime can thrive and the feeling we don’t care”.

[7] There was no evidence at the eviction hearing that the premises in question are in a state of disrepair. Before the summons request was made, a representative of the Landlord testified at the hearing, but Tenants’ counsel did not seek to cross-examine her on the statements in the press release. The Member properly denied the request for summons for written reasons dated January 21, 2008 as Mr. Ballantyne was not the author of the public statement and the summons request failed to disclose any reason why the issuance of a summons was necessary or relevant. During the hearing, the member was prepared to reconsider her decision and invited the parties to make oral submissions if they chose.

[8] More to the point, it is apparent from the Member’s reasons that assuming the zero tolerance policy applied, she did not blindly apply it in exercising her discretion under s. 83. She very clearly indicates in the passage I have earlier quoted why she found as she did. Given the findings of fact against the Tenants, it was neither unreasonable nor patently unreasonable for her to not exercise her discretion to refuse the eviction. There is no basis to interfere with her exercise of discretion, which is to be accorded deference.

[9] The appeal raises no questions of law. The appellants are seeking to overturn findings of fact and credibility following careful review of the evidence and the exercise of discretion by the Board. I conclude that the appeal is manifestly devoid of merit and has been commenced for the purpose of delay and to avoid eviction. The appeal is therefore quashed and the Certificate of Stay is vacated. The Sheriff is directed to enforce the Board’s Order dated April 21, 2008. The Moving Party has been entirely successful. I fix the costs at $ 1,750 including fees, disbursements and GST.

LAX J.

DATE: July 15, 2008