Collins v. BCIMC Realty Corporation, 2009 CanLII 66620 (ON SCDC)

COURT FILE NO.: DC-09-00000066

DATE: 20091119

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISONAL COURT)

RE: REBECCA MAXINE COLLINS

Appellant/Tenant

and

BCIMC REALTY CORPORATION

Respondent/Landlord

BEFORE: MACKENZIE J.

COUNSEL: Rebecca Maxine Collins, Appellant/responding to the motion to quash the appeal

J.S. Wenus, for the Respondent/moving to quash the appeal

HEARD: October 23, 2009

E N D O R S E M E N T

MacKenzie J.

Background

1On August 19, 2009, the Landlord and Tenant Board (Board) made an Interim Order (the Order) under the Residential Tenancies Act (the Act) granting the relief sought by BCIMC Realty Corporation (the Landlord) (a) terminating the tenancy between the Landlord and Ms. R.M. Collins (the Tenant) and requiring the Tenant to deliver vacant possession of the rental unit to the Landlord on or before September 5, 2009; (b) fixing the rental arrears for the period up to August 25, 2009 at $3,969.92 and fixing daily occupancy rent payable by the Tenant at $34.03 per day from August 26, 2009 to the date of delivery of vacant possession, plus costs of the application fixed at $170.00 payable by the Tenant to the Landlord.

2The Order was made interim in nature since the Tenant raised issues under s.82 of the Act relating to the alleged unfitness of the rental premises, in respect of which allegations the Tenant was seeking an abatement and set-off against the rental arrears.

3The Board decided that an adjournment was appropriate to permit a review and disposition of the s.82 issues raised by the Tenant and that on the return date, any abatement of rent to which the Tenant might be entitled would be granted in a final order pursuant to s.69 of the Act. The Order granting the Landlord the relief was determined by the Board to be appropriate on the basis that having regard to the substantial amount of rent arrears owing to date, the prejudice to the Landlord would be greater than the prejudice to the Tenant. A hearing date for the Tenant’s s.82 application was set.

4Before the hearing date for the Tenant’s s.82 application, the Tenant issued a Notice of Appeal on or about September 2, 2009 and obtained a Certificate of Stay of the Order from this Court.

5In its Notice of Motion dated October 7, 2009, the Landlord seeks an order quashing the Tenant’s appeal and vacating the stay of the Order, plus costs, on several grounds as stipulated in the Notice of Motion, the most cogent of which is that the Tenant’s Notice of Appeal fails to raise a question of law as required by s.210 of the Act.

6By a supplementary Notice of Appeal dated October 1, 2009, the Tenant seeks to add as a ground of appeal that s.195(4) of the Act violates s.7 of the Canadian Charter of Rights and Freedoms.

7The Tenant brings a further motion to strike the affidavit of one David Rubin, sworn October 8, 2009 in support of the Landlord’s motion to quash the Tenant’s appeal. This motion of the Tenant is made on the basis that the subject matter of the affidavit of Mr. Rubin is expert testimony and is inadmissible inasmuch as Mr. Rubin was not qualified as an expert witness to give opinion evidence. (Other grounds are stipulated such as that Mr. Rubin is not a lawyer nor an employee of the Board, however, these grounds are not apposite to the issue.)

Preliminary Issues

The Alleged Violation of s.7 of the Charter of Rights

of the Tenant by s.295(4) of the Act.

8In her motion materials relating to the amendment of the Notice of Appeal, the Tenant gives no offer of proof or basis for this position although in her oral submissions the Tenant stated, in effect, that section of the Act denies her as a tenant a right to make representations thereby enabling the Board to proceed under the Act notwithstanding the lack of representations that any tenant could make.

9I have reviewed the transcript of the hearing and the reasons for the Order; on my analysis there is no evidentiary basis for this contention. In any event, the issue raised is more a question of legislative invalidity under s.52(1) of the Charter rather than a question of the s. 7 Charter rights of an individual being infringed by a state actor.

10In these circumstances, the motion to amend the Notice of Appeal on the basis set out in the Supplementary Notice of Appeal is dismissed.

The Tenant’s Motion to Strike the Affidavit of Mr. Rubin

11The subject matter of Mr. Rubin’s affidavit is his description of the procedural steps at the hearing before the Board on August 19, 2009 and his statement of belief, particularly in paragraph 10, that “the Tenant’s ongoing failure to pay rent and her ongoing occupation of the rental premises are prejudicial to the Landlord.”

12In these circumstances, the subject matter of Mr. Rubin’s affidavit is not opinion evidence solely within the purview of an expert but rather matters of fact containing the procedural steps in the Board’s hearing and the fact of his belief that a failure to pay ongoing rent for the rental unit would be prejudicial to the Landlord. In this situation, the Tenant’s motion to strike the affidavit of Mr. Rubin in support of the Landlord’s motion to quash the appeal and vacate the stay is dismissed.

The Motion to Quash by the Landlord

13I turn now to the essential question to be decided on the Landlord’s motion to quash the Tenant’s appeal;

Did the Board in arriving at its interim disposition, i.e., the eviction order, and fixing the arrears while severing the issue of whether an abatement of rent pursuant to s.82 of the Act make an error in law thereby raising a question of law that affects the grounds of appeal as set out in the Tenant’s Notice of Appeal?

14In summary, the Tenant’s position as set out in her Notice of Appeal and oral submissions at the hearing of the motion to quash is that the Board misinterpreted the interplay between sections 82 and 83 of the Act by severing the question of her s.82 issues from the question of the termination of the tenancy and the fixing of rental arrears and occupancy rent. She argues that the Board erred in law by not deferring the question of termination of the tenancy and her eviction until the Board could hear at the same time her s.82 issues.

15The Landlord’s position is that s.82(2) and 83(1) of the Act convey a broad discretion on the Board and permit the severance of the tenant’s issues (entitlement to rent abatement) from the Landlord’s issues (the termination of tenancy and eviction with rental arrears and occupancy rent being fixed). Counsel submits that such discretion enables the Board to make an interim order postponing the enforcement of eviction arising from the termination of the tenancy so as to permit the Tenant to proceed with a separate hearing of her s.82 issues.

Analysis

16The statutory provisions of the sections in question are set out below:

Section 82

(1) At a hearing of an application by a Landlord under s.69 for an order terminating a tenancy and evicting a Tenant based on the notice of termination under s.59, the Board shall permit the Tenant to raise any issue that could the subject of an application made by the Tenant under this Act. (My emphasis).

(2) If a Tenant raises an issue under subsection [1], the Board may make any order in respect of the issue that it could have made had the Tenant made an application under this Act. (My emphasis)

Section 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,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time. (My emphasis)

17Counsel for the Landlord contends that on any fair reading of the reasons set out in the Order, the Board expressly addressed the interplay between sections 82 and 83, by stating that the Tenant was at liberty to seek a setoff or a rent abatement at any subsequent hearing of her claims that the rental was in an uninhabitable state.

18The Board in the Order sets out the following facts that engaged the interplay of sections 82 and 83 of the Act:

1. The Tenant raised claims under s.82 of the Act.

2. The Landlord at that time requested an adjournment in order to prepare for the s.82 issues raised by the Tenant.

3. The Board considered the prejudice that the adjournment could cause to the parties and found as a fact that “given the substantial amount of rent arrears owing to date and the rent that would accrue by the next hearing date the prejudice towards the Landlord is much greater [than the prejudice to the Tenant]”.

4. To balance the prejudice that an adjournment would cause the Landlord and, after determining that the Tenant testified her financial circumstances prevented her from paying two months of rent in trust to the credit of the application before the Board, an adjournment would be allowed solely for the purpose of dealing with the s.82 issues raised by the Tenant.

5. The Board recognized its obligation to permit the Tenant to raise the s.82 issues at a hearing on application made under s.69 of the Act and concluded that there would be no prejudice to the parties by allowing the Tenant’s s.82 issues to be determined at the next hearing and that if the Tenant were entitled to an abatement under s.82, it would be granted in a final Order made under s.69 at the following hearing.

19The conclusions reached by the Board (Determinations, page 2 of the Order) that are relevant to this issue are found in item 4. as set out below:

“I have considered all of the disclosed circumstances in accordance with s.83(2) of the Act and find that it would be unfair to grant relief from eviction pursuant to s.83(1) of the Act. Firstly, the Tenant testified that she was withholding he rent due to her s.82 issues. Later I learned, based on the Tenant’s testimony, that her financial circumstances are preventing her from the affordability of the rental unit because her monthly income is only $500 and she does not have any other financial support. The Tenant’s financial circumstances existed prior to the Tenant moving into the rental unit.”

20I am persuaded that the Board made no error in law in misinterpreting the interaction of sections 82 and 83 of the Act. The Board’s assessment of the combined effect of the two sections and the exercising of the discretion vested in it in relation to the facts disclosed in the record cannot be construed as an error in law. The discretion exercised by the Board in granting the Order for termination of the tenancy and eviction with the fixing of rental arrears was mindful of the Tenant’s rights in that enforcement of the eviction in the Order was postponed from the day of the hearing (August 25, 2009) to September 6, 2009, a period of 12 days.

Disposition

21In the result, I conclude that the Tenant’s Notice of Appeal has failed to raise a question of law in accordance with s.210(1) of the Act. The Landlord’s motion to quash the appeal is granted and the stay in respect of the appeal is vacated.

22I will entertain written submissions from the parties on the question of costs of the proceeding. The form and content of written submissions shall be in accordance with the Rules of Civil Procedure in that regard but shall not exceed four pages, exclusive of supporting materials, according to the following schedule.

(a) By the Landlord, within 14 days of the date of issuance of this Endorsement;

(b) By the Tenant, within 10 days of receipt of the Landlord’s written submissions; and

(c) Reply, if any, by the Landlord, within 7 days of receipt of the Tenant’s submissions.

23Approval of the form and content of the resulting Order by the Tenant is dispensed with. A copy of the issued Order shall be mailed by regular post to the Tenant at her address of record.

MacKenzie J.

DATE: November 19, 2009

COURT FILE NO.: DC-09-00000066

DATE: 20091119

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISONAL COURT)

RE: