Corbett v. Lanterra Developments The Britt Ltd., 2014 ONSC 3297

CITATION: Corbett v. Lanterra Developments The Britt Ltd., 2014 ONSC 3297

COURT FILE NO.: 142/14

DATE: 2014-05-30

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE DIVISIONAL COURT AT TORONTO

RE: Cara Corbett, Tenant, Appellant, Respondent in the Motion

AND:

Lanterra Developments The Britt Ltd., Landlord, Respondent in the Appeal, Moving Party

BEFORE: Kiteley J.

COUNSEL: David S. Strashin, for the Tenant, Appellant; Respondent in the motion

Tom Halinski, for the Landlord, Respondent in the Appeal; Moving Party

HEARD: May 15, 2014

ENDORSEMENT

[1] This is a motion by the Landlord to quash the appeal of the Tenant. For reasons that follow, the motion is granted, the appeal is quashed and the Certificate of Stay is lifted.

Background

[2] Ms. Corbett has been a tenant at 965 Bay St., the former Sutton Place Hotel, since 1987. The landlord has obtained approvals of amendments to the City of Toronto Official Plan and Zoning By-Law to redevelop the building, which will include demolition of all rental residential units, the construction of a 9 storey addition to the top of the existing building, and a new rental residential wing. The Landlord’s application to demolish was approved by Council of the City of Toronto subject to the owner meeting a number of conditions, including providing a generous tenant compensation package.

[3] On September 26, 2013, the Landlord served the Tenant with a Notice to Terminate a Tenancy at the end of the Term for Conversion, Demolition or Repairs (Form N13) which set out a termination date of March 31, 2014.

[4] In early January 2014, the Tenant served her Notice to Terminate (Form N9) effective January 31, 2014. The Landlord accepted the Tenant’s Notice to Terminate.

[5] The Tenant decided not to move out and instead, on Saturday February 1st, she left a rent cheque for February with the security desk and she contacted the Landlord’s agent on Monday February 3rd to rescind her N9 notice. On February 4th, the Landlord’s agent informed the Tenant that the request to rescind had been refused.

[6] The Landlord immediately brought an application to Terminate a Tenancy on the basis of the Tenant’s agreement (Form L3) and on February 7, 2014, the Landlord and Tenant Board made an ex parte order pursuant to s. 77 of the Residential Tenancies Act terminating the tenancy and ordering the Tenant to move out on or before February 18, 2014. The tenant received that order on February 10th.

[7] On February 14th, the Tenant brought a motion pursuant to s. 77(8) to set aside that order which motion was heard February 25, 2014. On February 26, 2014, the Board dismissed the motion to set aside and lifted the stay of the February 7th order effective March 31, 2014.

[8] On or about March 17th, counsel for the Tenant served a Notice of Appeal in which the Tenant seeks an order setting aside the orders issued February 7, 2014 and February 26, 2014 or alternatively, that the matter be remitted back to the Board for a new hearing. The several grounds of appeal revolve around the assertion that s. 51 of the Residential Tenancies Act gives the Tenant absolute security of tenure and the failure of the Board to consider s. 202 of the Act which requires the Board to ascertain the real substance of all transactions and the good faith of the participants which she asserted was critical since the Landlord had not been transparent as to its true intentions.

[9] On March 26, 2014, the Assistant Registrar issued a Certificate of Stay with respect to the order dated February 26, 2014. The tenant did not vacate on March 31st.

[10] On May 6th, the Landlord’s motion to quash the appeal was served on the Tenant’s counsel. In response the Tenant’s affidavit sworn April 30th was served. In that affidavit, the Tenant set out some of the background and deposed that at no time during the entirety of the matter had she been advised by the Landlord or by anyone from the City that existing tenants in a condominium conversion have their security of tenure statutorily protected pursuant to the Residential Tenancies Act. Had she been advised of that statutory protection she would not have tendered a Notice of Termination. Since she believed she had no choice but to move out, she agreed to leave by March 31st. She deposed that she believed the Landlord had characterized the process as a demolition so as to avoid the statutory protection provided to tenants in the context of condominium conversions.

Motion to Quash

[11] Counsel for the Landlord made a preliminary motion to strike the affidavit of the Tenant. I declined to strike the affidavit but confirmed that it did not constitute fresh evidence on the appeal. It has been filed solely for this motion.

[12] Pursuant to s. 210 of the Residential Tenancies Act, there is a right of appeal to the Divisional Court only on a question of law. Pursuant to s. 134(3) of the Courts of Justice Act, this court has the power to quash an appeal “in a proper case” which includes an appeal that is manifestly devoid of merit.[^1] The power to quash is seldom exercised.[^2]

[13] The Tenant contends that the actual purpose of the Landlord’s undertaking is to convert the premises to a condominium and that, pursuant to s. 51 of the Residential Tenancies Act, “sitting tenants” are provided with absolute security of tenure. She takes the position that her appeal raises legitimate questions of law including her assertion that the Board erred in failing to determine that (a) the Form N9 was voluntarily given and (b) the consent to terminate the tenancy was based upon the Landlord’s full disclosure of all material circumstances. She argues that the Board had an obligation pursuant to s. 202 to investigate and determine whether she understood her rights and accordingly, she was denied procedural fairness and natural justice because the Board failed to canvass deficiencies in the Landlord’s application.

[14] Those submissions are manifestly devoid of merit. The record before the Board and before this court clearly indicates that this project is a demolition, not a condominium conversion. Section 51 does not apply. The Board did not deny the Tenant procedural fairness and natural justice. Unlike the situation in Schmidt or in Wismer, this court can make the determination of merit on a motion to quash.

[15] Counsel for the Landlord also made submissions that the appeal was devoid of merit in that none of the grounds raised in the Notice of Appeal were advanced before the Board; that it seeks to overturn findings of fact by the Board that were based on the totality of the evidence and the submissions before it; that the Tenant’s allegation that the Landlord failed to make full and complete disclosure in its application to the Board is incorrect and based on no evidence; and that the appeal is frivolous, vexatious and initiated solely for the purpose of delaying eviction and achieving a collateral purpose. Counsel for the Tenant focused on challenging the decision of the Board to uphold the Tenant’s Form N9 but he did agree that the standard of review is reasonableness and he confirmed that he was not asking this court to revisit the exercise of discretion by the Board. On that basis, I infer that he conceded that the decisions of the Board dated February 9, 2014 and February 26, 2014 were within the range of reasonable outcomes. Having concluded that the Tenant’s appeal should be quashed because it is manifestly devoid of merit, I need not consider the alternate grounds of this motion. However, I am satisfied that the appeal does not involve a question of law and could be quashed for that reason.

[16] Pursuant to s. 210(5) of the Residential Tenancies Act, this court may make any order that it considers proper which includes setting the date for the lifting of the Certificate of Stay. At the hearing on February 25th, the Tenant asked that she be permitted to remain until March 31st (the original date on the Form N13) and the Board accepted that position. It is now two months past that date and four months past the date in her Form N9. In her evidence on February 25th, the Tenant spoke of her expectation that she would vacate, it was just a question of how soon. The Tenant provided a rent cheque for February, 2014 which the agent for the Landlord indicated at the hearing on February 25th that she intended to return. I was given no evidence or information as to whether she offered a rent cheque for April or May but I assume that if she did, the Landlord would not have cashed any cheques in view of these proceedings. I assume that the Tenant has continued in occupation while not paying compensation. In his submissions, Mr. Strashin conceded that her continued occupation puts her in the way of the Landlord’s long approved plans. In the circumstances of this case, there is no basis to delay lifting the Certificate of Stay. I will also authorize counsel for the Landlord to take out the signed and entered order without approval as to form and content by counsel for the Tenant.

[17] Mr. Halinski brought with him a costs outline but Mr. Strashin was not prepared to make submissions as to costs and accordingly asked to make written submissions. In matters such as this, counsel are expected to be prepared to make oral submissions and indeed, in the majority of cases, counsel agree as to the amount of costs subject to success. The Landlord was successful and is entitled to costs, the only issue is the amount. Accordingly, I will require immediate written submissions so that this final step in the proceedings can be accomplished in the near future.

ORDER TO GO AS FOLLOWS:

[18] The appeal by the Tenant from the orders of the Landlord and Tenant Board dated February 7, 2014 and February 26, 2014 is quashed.

[19] The Certificate of Stay that was issued as a result of the filing of the Notice of Appeal is lifted effective May 30, 2014.

[20] Counsel for the Landlord may take out this order without approval as to form and content by counsel for the Tenant.

[21] Counsel shall make written submissions as to costs as follows: for the Landlord by June 4, 2014; for the Tenant by June 9, 2014.

Kiteley J.

Date: May 30, 2014

[^1]: Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976) 1976 793 (ON CA), 13 O.R. (2d) 430 (OCA) [^2]: Schmidt v. Toronto-Dominion Bank (1995) 1995 3502 (ON CA), 24 O.R. (3d) 1; Wismer Markham Developments Inc. v. MacDonald 2006 O.J. No. 1374