CITATION: Houle v. Hayes, 2010 ONSC 924
COURT FILE NO.: DC09-00089-00
DATE: 20100218
DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Greg Houle and Wendy Houle v Edward Hayes a.k.a. David Jons
BEFORE: The Honourable Mr. Justice P.D. Lauwers
HEARD: February 3, 2010
COUNSEL: Greg Houle and Wendy Houle, Self-represented
William Doodnauth, for the Respondent
ENDORSEMENT
[1] The appellants, Greg Houle and Wendy Houle, are tenants of 480 Brenda Crescent, Peterborough, Ontario. They rent the property from the owner, Edward Hayes, also known as David Jons. They paid rent from December 8, 2008 bi-weekly at the rate of $600 but stopped paying rent and have not paid from June 19, 2009 to the present.
[2] Mr. Hayes brought the matter to the Landlord and Tenant Board for termination of the tenancy and payment of rent. The hearing was held on September 17, 2009 and the appellants were ordered to pay to the respondent rent owing up to September 28, 2009 in the amount of $2,755.15 and $42.74 per day starting September 29, 2009 to the date that they move out.
[3] On October 8, 2009, the appellants requested a review of the order. This was denied by the Landlord and Tenant Board on October 9, 2009.
[4] On October 20, 2009, the appellants filed an appeal to the Divisional Court. Under section 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), there may be an appeal to the Divisional Court, “but only on a question of law”.
[5] Mr. Hayes seeks to quash the appeal on the grounds that the appeal does not involve a question of law, is frivolous, vexatious and without merit. He asks that the automatic stay of eviction be lifted.
[6] The court can quash the appeal pursuant to s. 134(3) of the Courts of Justice Act, R. S. O. 1990, c. C.43: “On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.”
[7] In Schmidt et al. v. Toronto-Dominion Bank, 1995 3502 (ON CA), [1995] O.J. No. 1604 at para. 6, 24 O.R. (3d) 1 the Court of Appeal commented:
The very nature of this power, however, dictates that it will seldom be exercised. It is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without first hearing the entire appeal. Where, as here, the ultimate merits of the appeal require a consideration of a lengthy trial record, numerous issues, and detailed reasons for judgment, it is virtually inevitable that an inquiry into the question of whether the appeal has any merit will involve extensive written submissions and considerable oral argument.
[8] Although Mr. Houle rented the property from Mr. Hayes, the written residential rental agreement is in Mr. Hayes’ alias, “David Jons”. The issue is whether Mr. Hayes’ use of an alias means that he is not in compliance with subsection 12(1).
[9] Mr. Houle submits that Mr. Hayes is in breach of section 12 of the RTA, which provides:
- (1) Every written tenancy agreement entered into on or after June 17, 1998 shall set out the legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act.
Copy of tenancy agreement
(2) If a tenancy agreement entered into on or after June 17, 1998 is in writing, the landlord shall give a copy of the agreement, signed by the landlord and the tenant, to the tenant within 21 days after the tenant signs it and gives it to the landlord.
Notice if agreement not in writing
(3) If a tenancy agreement entered into on or after June 17, 1998 is not in writing, the landlord shall, within 21 days after the tenancy begins, give to the tenant written notice of the legal name and address of the landlord to be used for giving notices and other documents under this Act.
Failure to comply
(4) Until a landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be,
(a) the tenant’s obligation to pay rent is suspended; and
(b) the landlord shall not require the tenant to pay rent.
After compliance
(5) After the landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be, the landlord may require the tenant to pay any rent withheld by the tenant under subsection (4).
[10] Mr. Houle relies on subsection 12(4), which operates to suspend his rent, but as subsection 12(5) notes, there is no escaping the obligation to pay all the rent he owes once he has a written tenancy agreement setting out the legal name and address of the landlord to the use for purpose of giving notice or other documents under the RTA.
[11] It appears that Mr. Hayes did identify himself to Mr. Houle as David Jons. Mr. Houle alleges that the use of an alias was part of Mr. Hayes’ effort to avoid accounting for assets in the course of a matrimonial dispute, which is the subject of a separate proceeding between Mr. Hayes and his spouse. At no relevant point, however, was Mr. Houle under any misapprehension about Mr. Hayes’ true identity. The affidavit of Mr. Hayes in support of the motion, on which there was no cross-examination, notes: “The appellant, Greg Houle, raised the issue of my identity at the Landlord and Tenant Tribunal hearing and it was deemed irrelevant. I disclosed my real name to Greg Houle. There is no issue with my identity”. There is no contrary evidence about the state of Mr. Houle’s knowledge.
[12] The purpose for section 12 has clearly been met. There is no doubt that Mr. Houle knows that Mr. Hayes owns the property and is the person with whom he has been dealing. The relevance of the identity issue is perhaps a legal issue; it is the sole possible legal issue in this appeal. But its importance dissolves on the facts.
[13] Assuming that the use of an alias means that there was technical noncompliance with section 12, it could easily be remedied by having Mr. Hayes deliver another copy of the residential rental agreement amended by the substitution of the name, “Edward Hayes” for that of “David Jons”. He should deliver such an amended copy forthwith, using the copy that Mr. Houle has signed already. Even without the order of the Landlord and Tenant Board, Mr. Houle would then immediately be liable under section 12(5) of the RTA for all rent owing. The argument advanced by Mr. Houle is therefore a mere technicality and has no effect on his ultimate liability. See Nicholls v. Tepperman, [2008] O.J. No. 4123 (Div. Ct.).
[14] Further, Mr. Houle did not raise this issue when given the chance. In the review decision, the member of the Landlord and Tenant Board determined: “One of the main issues that the tenants raised and the request to review, the order centered on the name of the landlord. At no time in the request is it stated why this information could not have been brought forward at the hearing.”
[15] Mr. Houle said in oral argument that at the first hearing before Claudette Leslie, he was prevented from adducing evidence about the landlord’s identity but there is no evidence to support this statement. The appellant should not be allowed to use an appeal as a new forum in which to present his case: Moscarelli v. Aetna Life Insurance Co. of Canada, [1995] O.J. No. 3997, 87 O.A.C. 314 (Gen. Div.). Nor should the court condone the filing of an appeal whose sole purpose is to delay eviction or avoid paying rent; this is an abuse of process: Haley v. Morra, [2001] O.J. No. 134 (Div. Ct.); Minto Yorkville Inc. v. Trattoria Fieramosca Inc., [1997] O.J. No. 5247 (Div. Ct.).
[16] Courts have found that “the proper case” in which an appeal may be quashed is one where the appeal is “manifestly devoid of merit”, as stated in Lesyork Holdings Ltd. et al. v. Munden Acres Ltd. et al. (1976), 1976 793 (ON CA), 13 O.R. (2d) 430 (C.A.) and Oatway v. Canadian Wheat Board, 1945 43 (SCC), [1945] S.C.R. 204 at 213.
[17] This is such a case. On the legal issue of identity, I find that the appeal is manifestly devoid of merit. On the evidence before me the appeal is frivolous and vexatious. The appellants’ appeal to the Divisional Court from the Landlord Tenant Tribunal Order dated September 28, 2009 is quashed and the automatic stay of the eviction order is lifted.
P.D. Lauwers J.
DATE: February 18, 2010