CITATION: Terra Bella Non-Profit Housing Corporation v. Fischbach, 2012 ONSC 5133

DIVISIONAL COURT FILE NO.: 111/12

LTB File Nos.: TSL-15373-11, TSL 15373-11-RV

DATE: 20120912

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Terra Bella non-profit housing corporation, Landlord/Applicant on Motion (Respondent in Appeal)

and:

robert fischbach,

Tenant/Respondent on Motion (Appellant)

BEFORE: LAX J.

COUNSEL: Laura Bowman, for the Applicant

Joan C. Manafa, for the Respondent

HEARD: September 10, 2012

ENDORSEMENT

[1] The landlord brings this motion to quash the tenant’s appeal from the orders of the Landlord and Tenant Board dated January 12, 2012 and February 14, 2012, in which the Board granted the landlord’s application for an order terminating the tenancy and evicting the tenant and denied the tenant’s request for review.

[2] The tenant and the landlord have been in conflict with one another for several years about maintenance and repair issues in the tenant’s unit and the tenant’s reluctance to grant access to the landlord to complete the repairs. The deficiencies are subject to outstanding work orders from the City of Toronto. The premises are social housing where the tenant has resided for about 20 years. It is not disputed that he has a psychiatric disability requiring medication for anxiety and depression and panic attacks.

[3] A prior Board order (the Access Order), dismissed the landlord’s application to terminate the tenancy on the condition that “For a period of 12 months commencing July 1, 2010, the Tenant shall not impede or interfere with the Landlord’s efforts to maintain the rental unit.” In February 2011, following an incident with the landlord’s property manager, the Board of Directors of the landlord agreed to accommodate the tenant temporarily “to the next court date”. In April, 2011, the tenant provided the landlord with a letter from his physician dated April 10, 2011, stating that Mr. Fischbach required complete rest and recommending that all renovations, repairs and legal proceedings cease for a period of at least three months until July 10, 2011.

[4] The Board concluded that the physician’s letter “extended a continuing breach of the (Access) Order”. It also found that the landlord had accommodated the tenant to the point of undue hardship and terminated the tenancy.

[5] An appeal lies to the Divisional Court from a decision of the Board, but only on a question of law. The landlord submits that the appeal raises no question of law and is devoid of merit. This court has jurisdiction to quash an appeal, but this power is exercised sparingly as it is usually difficult to determine the merits of an appeal without hearing it. This is the role of a panel: See Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.); Clarke v. Fok, [2003] O.J. No. 489 (Div. Ct.).

[6] The tenant submits that the Board erred in finding that a breach of the Access Order occurred within the statutory period and asserts that the Board misapprehended the evidence it relied on to support its finding that the landlord accommodated the tenant to the point of undue hardship. The tenant also raises procedural fairness issues.

[7] It is the landlord’s position that the appeal has no merit because it is based on an attack on the underlying factual findings of the Board. The landlord characterizes the tenant’s natural justice issues as a “kitchen sink approach” and disputes that any have merit.

[8] Notwithstanding the skilful argument of Ms. Bowman, only a minimal level of merit is needed to defeat a motion to quash. It is not my task to weigh the relative merits of the parties’ arguments. In my opinion, the appellant has raised sufficient legal characteristics in the grounds put forward that it would be premature for a single judge to dismiss the appeal on grounds that it is manifestly devoid of merit or raises no question of law.

[9] The motion is therefore dismissed. The appeal has been perfected. The appeal is to be set down to be heard at the earliest possible date. Costs of the motion are fixed at $5,000 and payable in the cause.

LAX J.

DATE: September 12, 2012