CITATION: Levine v. Jack Aaron and Company Ltd., 2011 ONSC 1173
COURT FILE NO.: 10-DV-1664
DATE: 2011/02/24
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAM C. LEVINE
Michael K. E. Thiele, for the Appellant/Responding Party
Appellant/Responding Party
- and -
JACK AARON AND COMPANY LTD.
Kathryn G. Sutherland, for the Respondent/Moving Party
Respondent/Moving Party
HEARD: February 18, 2011
REASONS FOR DECISION
Power J.
[1] On November 11, 2004, William C. Levine, as tenant, entered into a residential lease agreement with Jack Aaron and Company Ltd. as landlord. The leased premises are located at 325C Craig Henry Drive, Ottawa. Since entering into the lease Mr. Levine has frequently been in arrears in payment of his rent. Between June, 2007 and September, 2010 the Landlord and Tenant Board made a total of six orders terminating the said tenancy together with eviction orders for non-payment of rent. On each occasion, except for the last, the appellant made last-minute payments to avoid eviction. On September 13, 2010 the Landlord and Tenant Board issued a consent order as follows:
The tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before September 29, 2010.
The Tenant shall pay to the Landlord $1,097.26, which represents the amount of rent owing and compensation up to September 13, 2010, less the rent deposit and interest the Landlord owes on the rent deposit.
The Tenant shall also pay to the Landlord $34.22 per day for compensation for the use of the unit starting September 14, 2010 to the date he moves out of the unit.
The Tenant shall also pay to the Landlord $170.00 for the cost of filing the application.
If the Tenant does not pay the Landlord the full amount owing on or before September 24, 2010, the Tenant will start to owe interest. This will be simple interest calculated from September 25, 2010 at 2.00% annually on the balance outstanding.
If the unit is not vacated on or before September 29, 2010, then starting September 30, 2010, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.
Upon receipt of this order, the Court Enforcement Officer (Sheriff) is directed to give vacant possession of the unit to the landlord, on or after September 30, 2010.
If, on or before September 29, 2010, the Tenant pays in guaranteed funds the amount of $2,823.00 to the Landlord or to the Board in trust, this order for eviction will be void. This means that the tenancy would not be terminated and the Tenant could remain in the unit. If this payment is not made in full and on time, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.
The Tenant may make a motion to the Board under subsection 74(11) of the Act to set aside this order if they pay the amount required under that subsection on or after September 30, 2010 but before the Sheriff gives vacant possession to the Landlord. The Tenant is only entitled to make this motion once during the period of the tenancy agreement with the Landlord.
[2] Mr. Levine did not comply with the aforesaid order and was then served with a Notice to Vacate issued by the Sheriff’s Office of the Ontario Superior Court of Justice, commanding the appellant to vacate the premises by October 8, 2010.
[3] Mr. Levine did not vacate the rental premises as directed in the Notice to Vacate. He did, however, commence an appeal to this Court with respect to the September 13, 2010 order and, in his appeal, he asked that the order be set aside and the Notice to Vacate be stayed. His grounds of appeal were that he did not possess sufficient funds to pay the rent and that he suffered from various health problems. It is clear that the appeal was filed simply as a tactic to delay his eviction, i.e., to obtain the benefit of the automatic stay of the Board order.
[4] The landlord moved to quash the appeal on the grounds that the appeal had no merit and that, in addition, Mr. Levine had failed to perfect the appeal.
[5] On December 17, 2010, I allowed the landlord’s motion. I asked counsel for the landlord whether the landlord would agree, as a term of my order, that Mr. Levine be allowed to remain in the premises until the end of the year. The landlord agreed.
[6] I then made the following order:
- That the Appellant’s tenancy is terminated and the Appellant is required to vacate the rental unit on or before Jan 1, 2011 failing which the Respondent shall have the right to seek an order that the Appellant is in contempt of this order.
[7] I also ordered that Mr. Levine be required to pay arrears of rent at that time and I ordered him to pay costs to the landlord fixed in the amount of $2,500.
[8] Mr. Levine is still in the premises. Before me for decision at this time is a motion by the landlord for a contempt order against Mr. Levine for failure to vacate and an order that the Court Enforcement Officer (Sheriff’s Office) be directed to forthwith give vacant possession of the premises to the landlord.
[9] Mr. Levine has not sought leave to appeal my decision of December 17, 2010.
[10] Rule 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the delivery of a Notice of Appeal stays the Board order until the appeal is disposed of. Counsel for Mr. Levine concedes that the quashing of an appeal results in the lifting of the automatic stay because the quashing of an appeal is a “disposition” of the appeal as contemplated in the rule. He also concedes that the tenancy remained terminated under the Board order of September 13, 2010, and that it, the order, again became enforceable due to the lifting of the stay.
[11] However, it is the position of Mr. Levine on this motion that the quashing of his appeal “did not quash nor declare that my rights under s. 74(11) of the Residential Tenancies Act and paragraph 9 of the Landlord and Tenant Board order were unavailable to me.” Section 74(11) of the Residential Tenancies Act, 2006, S.O. 2006, c. 8 s. 39 reads as follows:
Payment after order becomes enforceable
(11) A tenant may make a motion to the Board, on notice to the landlord, to set aside an eviction order referred to in subsection (3) if, after the order becomes enforceable but before it is executed, the tenant pays an amount to the landlord or to the Board and files an affidavit sworn by the tenant stating that the amount, together with any amounts previously paid to the landlord or to the Board, is at least the sum of the following amounts:
The amount of rent that is in arrears under the tenancy agreement.
The amount of additional rent that would have been due under the tenancy agreement as at the date of payment by the tenant had notice of termination not been given.
The amount of NSF cheque charges charged by financial institutions to the landlord in respect of cheques tendered to the landlord by or on behalf of the tenant, as allowed by the Board in an application by the landlord under section 87.
The amount of administration charges payable by the tenant for the NSF cheques, as allowed by the Board in an application by the landlord under section 87.
The costs ordered by the Board.
[12] On December 22, 2010, Mr. Levine filed a motion with the Board to void its earlier eviction order on the grounds that he had, by then, paid the rent arrears. There is an issue between the parties as to whether all arrears have been paid. However, for the purposes of this preliminary ruling on this motion, I will assume that all of the arrears were paid.
[13] Both Mr. Levine and the landlord were represented by counsel on the return of that motion on January 12, 2010. The Board issued an interim order on January 13, 2010. In the interim order, the Board member said:
In view that the Ontario Divisional Court decision states that ‘the Tenant shall vacate the rental unit on or before January 1, 2011 failing which the respondent shall have the right to seek an order that the Appellant is in contempt of this Order’ and the fact that the Tenant filed a motion to quash the Ontario Divisional Court decision issued on December 17, 2010, I opted to adjourn and reschedule this matter after the Ontario Divisional Court has made a decision on the Tenant’s motion to prevent any legal confusion.
[14] The Board member was mistaken in noting that the tenant had filed a motion to quash my decision. No such motion was made. In any event the Board went on to make some findings concerning financial issues. It concluded its interim order as follows:
It is ordered that:
The Landlord and the Tenant shall provide the Board with the Ontario Divisional Court’s decision.
The Board shall pay the Landlord $1,044.00 immediately.
[15] Apparently, at the hearing before the Board, there was a discussion about the meaning of my order following which the Board member indicated that while he would normally proceed with the motion (i.e., the motion before the Board) he would not do so in this matter because of the “legal confusion.”
[16] In the light of this background information I, on the return of the motion before me on February 18, 2011, advised counsel that I was not satisfied that a contempt order should issue at this time. I concluded that it was not clear that Mr. Levine’s conduct was contemptuous. Indeed, Mr. Thiele, counsel for Mr. Levine, made the following submission in his factum filed on this motion:
The tenant does not believe that he is in contempt of the Court Order because he is exercising his legal rights as set out in the Landlord and Tenant Board Order at paragraph 9 of the Order. While the Court Order quashed the tenant’s appeal, it did not quash nor declare that the tenant’s rights under section 74(11) of the Residential Tenancies Act and paragraph 9 of the Landlord and Tenant Board Order were unavailable to him.
[17] In other words, it is the position of Mr. Levine’s counsel that Mr. Levine, notwithstanding my order, has the right to bring an application to the Board under s. 74(11) of the Act.
[18] Mr. Levine’s counsel argues that the Residential Tenancies Act “operates to oust the jurisdiction of the Supreme Court to terminate a residential tenancy and evict a tenant.” He relies on the Ontario Court of Appeal’s decision in Fraser v. Beach, 2005 14309. That case involved an action in the Superior Court of Justice between the residential tenants of an illegal rooming house and their neighbours. The neighbours brought an action against the landlords seeking damages for nuisance and for an interim and final injunction restraining them from operating the rooming house. The Court of Appeal set out the issue as follows:
[2] The single legal issue in this appeal is whether the Superior Court of Justice has jurisdiction to order the eviction of the tenants, or whether the Ontario Rental Housing Tribunal has exclusive jurisdiction to do so.
[19] The Court held that the Superior Court of Justice’s jurisdiction to grant an injunction was limited by statute. The Court then said: “[t]he question on this appeal is whether the Tenant Protection Act, 1997, S.O. 1997, c. 24, unequivocally indicates the Legislature’s intent to limit the court’s jurisdiction to make an order evicting a residential tenant.”
[20] The Court concluded that the Act applied to the relationship between the landlords and the tenants. It held that, indeed, the Board did have exclusive jurisdiction over termination of residential leases. The Court quoted from s. 39(1) as follows: “A tenancy may be terminated only in accordance with this Act.” It also relied on s. 41(b) which provided: “A landlord shall not recover possession of a rental unit subject to a tenancy unless …an order of the Tribunal evicting the tenant has authorized the possession.” It relied on s. 157(2) which provided that “[t]he Tribunal has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act” and s. 2(1) which provided that the Act applied with respect to rental units in residential complexes “despite any other Act.” Finally, it cited s. 2(4) which provided that if a provision of the Act conflicted with a provision of another Act, the Tenant Protection Act prevailed.
[21] The Residential Tenancies Act, 2006, of course, was adopted subsequent to the Court of Appeal’s decision in Fraser, supra. The relevant sections of the current Act are as follows:
Application of Act
- (1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
Conflict with other Acts
(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.
Termination only in accordance with Act
- (1) A tenancy may be terminated only in accordance with this Act.
Application by landlord
- (1) A landlord may apply to the Board for an order terminating a tenancy and evicting the tenant if the landlord has given notice to terminate the tenancy under this Act or the Tenant Protection Act, 1997.
Board’s jurisdiction
- (2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
[22] Section 210 of the Act deals with “Appeal rights”. I will deal with that section later in these reasons.
[23] At para. 15 the Court in Fraser, supra, concluded as follows:
I am satisfied that the combined effect of these provisions is to oust the jurisdiction of the Superior Court to make an order requiring the tenants to vacate the premises. The statute clearly provides that only the Tribunal may make an order terminating a tenancy and evicting a tenant.
[24] Counsel for the landlord relies on a later decision by Cumming J. in Falconer v. The Manufacturers Life Insurance Co., 2008, 9368 (Ont. Sup. Ct.). As in the present case, the Court was concerned with a motion to quash an appeal to the Divisional Court from an eviction order granted by the Board. While the landlord was represented by counsel, no one appeared on the argument of the motion on behalf of the tenant. Apparently, the jurisdictional issue with which we are concerned was not raised ─ at least, there is no mention in the reasons that it was raised. Cumming J. held that the appeal was manifestly devoid of any merit and quashed it. He then said:
[25] For the reasons given, the Landlord's motion is granted. The appeal is quashed and the certificate of stay is lifted. In my view, given the history and circumstances of this matter, it is proper to exercise the authority conferred under s. 210(5) of the Residential Tenancies Act to direct the Sheriff's Office to forthwith give possession of the premises in question.
[25] Accordingly, Cumming J. as an adjunct to quashing the appeal to the Divisional Court made an order under s. 210(5). For clarity, set out hereunder is the entire section:
Appeal rights
- (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
Board to receive notice
(2) A person appealing an order under this section shall give to the Board any documents relating to the appeal.
Board may be heard by counsel
(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.
Powers of Court
(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Board with the opinion of the Divisional Court.
Same
(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.
[26] While the order of Cumming J. was different from the order I made, both orders had the same intent and both were made, of course, by judges of this Court rather than Board members. Both of us purported to act pursuant to the authority in s. 210(5). In my opinion, that subsection clearly bestows on a judge of this Court when dealing with an appeal from the Board to this Court, jurisdiction to “make any other order in relation to the matter that it considers proper.” In my opinion, while I have no difficulty whatsoever with the reasoning of the Court of Appeal in Fraser, supra, the reasoning in that case does not foreclose this Court from making an order such as the order I made. I made that order in the context of the disposition of an appeal to this Court. The Court of Appeal in Fraser, supra, did not consider the provision of s. 210(5) or its predecessor.
[27] I am further of the opinion that my order is also authorized by Rule 60.05 of the Rules of Civil Procedure which provides as follows:
ENFORCEMENT OF ORDER TO DO OR ABSTAIN FROM DOING ANY ACT
60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.
[28] I find that there is no conflict between subsections (4) and (5) of s. 210 of the Residential Tenancies Act and Rule 60.05. My order, in my opinion, is a termination of the tenancy “in accordance with this Act” i.e., the Residential Tenancies Act and, in particular, s. 210(5) thereof.
[29] Section 134(1)(c) of the Courts of Justice Act, R.S.O. 1990, c. 43 is also relevant. Subsection (1) of that section authorizes a court to which an appeal is taken to “make any other order or decision that is considered just” (i.e., in addition to its power to make any order or decision that ought to or could have been made by the court or tribunal appealed from).
[30] Notwithstanding that I am of the opinion that I had jurisdiction to make the order I made on December 17, 2010, I am satisfied, as aforesaid, that Mr. Levine’s conduct since the making of that order was not contemptuous. He acted on the advice of counsel in circumstances where he had been advised that there was an issue with respect to my jurisdiction.
[31] However, my order remains and is binding on Mr. Levine.
[32] On February 18, 2011, after hearing submissions from counsel on the jurisdictional issue, I adjourned this contempt motion in order to consider their submissions.
[33] Should counsel wish to make further submissions to me on this motion, they should contact me immediately as I will be leaving at the end of this week on an extended leave.
Power J.
Released: February 24, 2011
CITATION: Levine v. Jack Aaron and Company Ltd., 2011 ONSC 1173
COURT FILE NO.: 10-DV-1664
DATE: 2011/02/24
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAM C. LEVINE
Appellant/Responding Party
- and –
JACK AARON AND COMPANY LTD.
Respondent/Moving Party
REASONS FOR DECISION
Power J.
Released: February 24, 2011