Thompson v. Parish of Hastings, 2013 ONSC 6829

CITATION: Thompson v. Parish of Hastings, 2013 ONSC 6829

DIVISIONAL COURT FILE NO.: DC-13-00594-00

DATE: 20131104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Debbie Thompson and Helen Thompson, Tenants (Appellants) Tenants/Appellants

– and –

Parish of Hastings for the Incumbent and Churchwardens of St. George Anglican Church Hastings and the Incumbent and Churchwardens of St. James Anglican Church Roseneath Landlords/Respondents

COUNSEL:

Nathan Ross, for the Tenants/Appellants/Responding Parties

Jason Schmidt, for the Landlords/Respondents/Moving Parties

HEARD: October 25, 2013

REASONS FOR DECISION

GILMORE J.:

Overview

[1] The Parish of Hastings for the Incumbent and Churchwardens of St. George Anglican Church Hastings and the Incumbent and Churchwardens of St. James Anglican Church Roseneath (the “landlords”) bring a motion to quash the notice of appeal of the applicant/tenants, Debbie Thompson and Helen Thompson (the “tenants”), or in the alternative, lift the stay of the order of the Landlord and Tenant Board (“LTB”) pursuant to the appeal.

Background Facts

[2] The landlords own property known municipally as 46 Bridge Street in Hastings, Ontario. At one time, this property was the rectory for St. George’s Anglican Church, which is located next door.

[3] The tenants, Debbie Thompson and her mother, Helen Thompson, have lived at the property since May 1993. They have paid $700 per month in rent without increase during the term of their tenancy.

[4] In 2012, the landlord decided to sell the property. There is some dispute on the evidence as to the discussion related to the possibility of the tenants purchasing the property, but ultimately the tenants determined that they did not wish to purchase the property. As such, the property was listed for sale on July 23, 2012. The landlord submits that the tenants did not cooperate with the sale, such that they had to take the property off the market. That evidence is disputed. In any event, unable to sell the property, the landlord took it off the market in January 2013.

[5] The property was re-listed in the spring of 2013 and on July 24, 2013, the landlord entered into an agreement of purchase and sale with Angele Barraball (the “purchaser”), who wanted the property for her own use. The closing date for the purchase was October 1, 2013.

[6] On July 29, 2013, the landlord served the tenants with an N12 notice to terminate. On August 7, 2013, the LTB issued a notice of hearing for August 29, 2013. On August 29, 2013, the landlord filed an affidavit of the purchaser and the matter was adjourned to September 10, 2013. The landlord argued that the tenants made no attempt until September 9, 2013, the day before the hearing, to obtain a summons with respect to the purchaser. The tenants argued that the landlord made it difficult, if not impossible, to obtain a summons because they refused to provide particulars as to the purchaser’s address.

[7] On September 10, 2013, a hearing was held before the LTB and Member Burke ordered the eviction of the tenants on or before September 30, 2013.

[8] On September 26, 2013, the appellants served the respondents with the notice of appeal, appealing Member Burke’s decision, dated September 17, 2013. As a result of the appeal, the purchaser agreed to extend the closing date to November 1, 2013 and the purchaser obtained alternate temporary accommodation pending the new closing date.

[9] This matter came before me on October 25, 2013. After hearing submissions from both parties, I ordered that the certificate of stay be lifted and I granted the landlord’s motion to quash the notice of appeal on the grounds that the appeal was devoid of merit. These are my reasons in relation to that decision.

[10] The tenants appealed the decision of Member Burke, dated September 17, 2013, on several grounds, including:

(a) The member erred in “law” by not interpreting the requirements of section 72 of the Residential Tenancies Act 2006 (“RTA”);

(b) The member violated the procedural fairness owed to the appellants when an order was not made to have the both of their outstanding applications heard together;

(c) The member erred in law by not considering, and failing to mention in his reasons, that the appellants lived in the rental unit for over twenty-two years;

(d) The member violated the procedural fairness owed to the appellants when an order was not made permitting the appellants to cross examine the purchaser; and,

(e) The member erred by failing to make a finding of collusion between the solicitors for the purchaser and the respondents.

Authority and Test to Quash an Appeal

[11] Section 134(3) of the Courts of Justice Act empowers a court to which an appeal is taken to quash the appeal in a proper case. The test to do so is whether the appeal is manifestly devoid of merit: Lesyork Holdings Ltd. v. Munden Acres Ltd. et al[^1]. An appeal to the Divisional Court with respect to an order of the LTB may only be made on a question of law: RTA[^2].

Position of the Landlord

[12] The landlord disputed that Member Burke erred in law by not interpreting the requirements of section 72 of the RTA. Section 72(1) of the RTA sets out as follows:

72(1) The board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 48 or 49 unless the landlord has filed with the board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use.

[13] The landlord argues that no interpretation is necessary, and in any event, the tenants are appealing a finding of fact, which is not a permitted ground of appeal. The landlord submits that Member Burke, at page 2 of his decision dated September 17, 2013, specifically turns his mind to the requirements of section 72(1). Not only does he recite the section, but he confirms that the purchaser had prepared and sworn an affidavit indicating that she required the unit for her personal use. He goes on to indicate that the fact that the affidavit does not contain any further details does not invalidate it. Member Burke accepted that the evidence supplied showed that the purchaser intended to live in the residence when the sale closed. The tenants do not dispute that a proper N12 notice of termination was served on them. Member Burke found that the affidavit had complied with section 72 of the RTA and nothing further is required.

[14] The landlord denies that Member Burke violated procedural fairness when he refused to have the current application and another pending application heard by the appellants together. The landlord submits that the issue of whether or not the application should be heard together was properly considered by Member Burke. At page 2 of his decision, he specifically addresses this when the tenants ask for the matter to be adjourned and heard with another application they had filed against the landlord related to different subject matter.

[15] Further, the tenants did not mention this request when they were before the LTB on August 29, 2013, setting the date of September 10, 2013. According to Member Burke, “the issues are not connected, and based on a brief submission by the tenants, does not appear to allege serious enough allegations that may require me to deny the eviction under section 83 of the [RTA].”

[16] Finally, when the matter was before Member Graham on August 29, 2013, he considered and denied the same request by the tenants. As such, the landlord argues that the matter was dealt with on two separate occasions and both Members Burke and Graham determined there was insufficient nexus between the two applications to require that they be heard together.

[17] The landlord denies that Member Burke erred in law by not considering, and failing to mention in his reasons, that the appellants lived in the rental unit for over twenty-two years. In his decision of September 17, 2013, he indicates at page 3 that he has “considered all of the disclosed circumstances in accordance with subsection 83(2) of the [RTA] 2006 and find it would be unfair to grant relief from the eviction pursuant to subsection 83(1) of the Act”.

[18] An examination of the transcript of the hearing before Member Burke on September 10, 2013 demonstrates that there were several references by both Member Burke and counsel with respect to the length of time the tenants resided in the subject property. Counsel for the tenants mentioned at various places on page 18 of the transcript[^3] that the tenants had been in the property for twenty years, twenty-one years and twenty-three years. As well in the transcript, counsel for the tenants mentions that the tenants have “twenty-two years of furniture to try to move out”[^4]. Most importantly, Member Burke adverts to the length of the tenancy during the hearing when he says, “…he is looking for relief pursuant to section 83 of the [RTA] because of the tenure of twenty-two years”[^5]. As well, Member Burke adverts to the length of the tenancy when he says, “we have people who have health issues, we have people who have been there for twenty-two years, and it is going to be difficult to find a place to go”[^6].

[19] The landlord denies that Member Burke violated procedural fairness to the tenants when he did not permit them to cross examine the purchaser. The landlord submits that there is no requirement of the RTA that a purchaser attend a hearing to give viva voce evidence unless they have been properly summonsed. The purchaser had not been summonsed to the September 10, 2013 hearing. While the tenants complained that the landlord was uncooperative in providing particulars for service of a summons on the purchaser, the landlord’s position was that a copy of the agreement of purchase and sale and the purchaser’s name was provided to counsel for the tenants on July 30, 2013 and a summons could have been issued at any time after that date. In any event, prior to the hearing of this motion, the purchaser was cross-examined on her affidavit of October 2, 2013.

[20] The landlord denies that Member Burke erred in failing to make a finding of collusion between the solicitors for the purchaser and the landlord. Such an accusation is extremely serious, and in addition, there was no request by the tenant that the Member make such a finding. This accusation came up only following the August 29, 2013 hearing, as no request for such a finding was made, there is no reference to it in the decision of Member Burke on September 17, 2013. Alternatively, the landlord argues that Member Burke’s silence on the issue is an indication of no finding, which is still a finding of fact and not appealable to the Divisional Court.

[21] The landlord argues that the notice of appeal is an attempt to delay eviction, given that the requirements of the RTA have been complied with and the findings of fact made by Member Burke were made in support. Finally, there is substantial inconvenience to an innocent third party, namely the purchaser. Her circumstances are such that she has had to obtain temporary accommodation for herself and her children of which there is no ongoing guarantee of availability.

[22] Given all of the above, the landlord seeks that the certificate of stay be lifted and that the notice of appeal be quashed.

Position of the Tenants

[23] The tenants argue that it would be premature to quash the appeal given that it has not been perfected, and further that appellant need only raise sufficient legal issues based on the grounds put forward in order to defeat a motion to quash.

[24] The tenants sought an interim structuring and expedited hearing of the appeal, with a short continuation of the certificate of stay of eviction.

[25] The tenants submitted that they have never been in arrears of rent and the court should allow the tenants and their counsel a fulsome opportunity to review the transcripts which only recently became available. As per Cooper v Conres II GP Number One Inc.[^7], the court held that even where it was doubtful there was merit to the appeal, quashing an appeal requires a high standard and the court allowed the appeal to be perfected.

[26] The tenants argue that it is an error of law that the affidavit pursuant to section 72 of the RTA was signed after the N12 notice to vacate was issued. This is because the landlord may only issue the N12 notice if the purchaser in good faith requires possession of the unit for his or her personal use. Where there is no evidence confirming that this is the case for the purposes of section 49 of the RTA, the N12 is then a nullity.

[27] The tenants argue that Member Burke erred in law by not allowing both of the tenant applications to be heard at the same time and that he unreasonably refused their request to do so.

[28] The tenants argue that the tribunal erred in allowing short service of the affidavit mandated by section 72 of the RTA. Specifically, that affidavit was only produced on the day of the first hearing before Member Graham, and failure to comply with section 72 should have resulted in the application being dismissed. Further, the tribunal erred in the failure to order that the contact information of the purchaser should be provided to the solicitor for the tenant so that a summons could be properly prepared. The tenants submit that they took active steps to summons the purchaser but were thwarted and obstructed by her counsel.

[29] Finally, the purchaser’s affidavit indicated that she was able to secure alternate accommodation, which may be available to her up to the beginning of December 2013. There is no reason that the agreement of purchase and sale could not have been extended to the beginning of December 2013 to allow perfection of the appeal, review of transcripts and hearing of the appeal in November 2013.

Analysis and Ruling

[30] This court has the authority to quash an appeal as per section 134(3) of the Courts of Justice Act[^8]. The test on a motion to quash requires a finding that the appeal is manifestly devoid of merit. Given the high threshold, motions to quash will rarely be successful.

[31] It is generally recognized that most appeals contain some meritorious ground of appeal which deserves a hearing for determination. However, this is one of those rare cases in which I find that the appeal taken by the tenants is devoid of merit. I further find that the appeal is intended to delay their eviction in the face of the landlord’s compliance with the requirements of the RTA and the well reasoned decision of Member Burke in which, after reviewing the evidence and considering the circumstances in accordance with subsection 83(2) of the RTA, he ordered that the tenancy be terminated.

[32] More specifically, I find that the grounds of appeal of the tenants are either devoid of merit or they are an appeal of a finding of fact and therefore contrary to the provisions of section 210(1) of the RTA.

[33] Member Burke did not make an error in law with respect to the requirements of section 72 of the RTA. The affidavit was provided in accordance with the RTA and there is nothing in the legislation that requires that the N12 be served on the instruction of the purchaser. Member Burke made a finding of fact that the purchase was made in good faith and that the purchaser intended to use the residence for her own personal use. In my view, there is no requirement for interpretation. In any event, the appeal would be in relation to that finding of fact and therefore an impermissible ground of appeal.

[34] With respect to the tenants’ complaint about their two applications not being heard together, I do not find that there is any merit to this ground of the appeal. The matter was dealt with by both Members Burke and Graham who made the same decision on the same facts. The two applications related to different issues and should not have been heard together. If there was any error on the part of the Members in this regard, it would not be an error of law.

[35] There is also no merit in the ground of appeal that the member erred in law by not considering the length of the tenancy. As per the summary of the submissions of the landlord above, there were references in the course of the hearing on September 10, 2013 by both counsel for the tenants and by Member Burke himself with respect to the length of the tenancy. There is nothing to indicate that, in considering all of the circumstances as Member Burke was required to do, that the length of the tenancy would not have been one of them given the number of times it was mentioned during the hearing.

[36] With respect to the tenant’s ability to cross-examine the purchaser, there is nothing in the RTA that permits or requires cross-examination. In any event, in accordance with the endorsement of Vallee J., the tenants were afforded an opportunity to cross-examine the purchaser on her second affidavit. That transcript was before the court on the motion to quash. The hearing was not intended to challenge the credibility of the purchaser. Member Burke made a finding that she was a bona fide purchaser who required the property for her personal use. Anything beyond this would be an appeal of that finding of fact, which is not permitted as a ground of appeal, pursuant to the RTA.

[37] Any failure by the member to make a finding of collusion between the solicitors for the purchaser and respondents is also devoid of merit. Such a finding was not requested to be made by the tenants. In any event, such an accusation is a serious one and is devoid of merit in the face of Member Burke having already found that the purchaser was bona fide and intended to use the property for her personal use.

[38] Given all of the above, there is no need to address any prejudice that would be experienced by the purchaser or the landlord with respect to extending the closing date. For all of the above reasons, the tenant’s appeal is therefore quashed and the certificate of stay of eviction is lifted.

[39] If the parties cannot agree on costs, I will receive written submissions on a seven day turnaround, commencing with the moving parties, followed by responding submissions, then reply submissions, if any, commencing fourteen days from the date of release of these Reasons. Cost submissions shall be no more than two pages in length, exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at jennifer.beattie@ontario.ca.

Justice C.A. Gilmore

Released: November 4, 2013

[^1]: [1976] O.J. No. 2225. [^2]: 2006, S.O. 2006 c.17 s.210 (1). [^3]: Transcript of the Landlord and Tenant Board hearing on September 10, 2013, page 18, lines 10 and 25. [^4]: Ibid, page 85, lines 17 and 18. [^5]: Ibid, page 41, lines 2 to 6. [^6]: Ibid, page 91, lines 23 to 25. [^7]: (2013) ONSC 316 Div Crt. [^8]: R.S.O. 1990 c.43.