Arsenault v. Thevathurai, 2015 ONSC 5357
CITATION: Arsenault v. Thevathurai, 2015 ONSC 5357
COURT FILE NO.: 15-DC-2110
DATE: 2015/08/25
DIVISIONAL COURT OF JUSTICE - ONTARIO
RE: Pierre Arsenault, Tenant (Appellant)
AND
Akilan Thevathurai, Landlord (Respondent)
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Pierre Arsenault, self-represented Tenant (Appellant) S. David Lyman, for the Landlord (Respondent)
HEARD: July 3 and 8, 2015
ENDORSEMENT
[1] On April 9, 2015, the Landlord and Tenant Board ordered that the appellant, Pierre Arsenault be evicted from the premises which he had for several years been renting from the respondent, Akilan Thevathurai. Mr. Arsenault is appealing from that order. Mr. Thevathurai brings this motion for an order:
Quashing the appeal; or
Lifting the stay of the April 2015 order of the Landlord and Tenant Board (“the Board”) pending the outcome of the appeal.
Background
[2] The history of the landlord-tenant relationship between the parties and the circumstances leading to the April 2015 eviction order are set out in: a) the affidavit of Mr. Thevathurai sworn on May 15, 2015 (“the Thevathurai affidavit”); and b) the April 9, 2015 order of the Board signed by Member Sylvie Charron (“the Eviction Order”). Mr. Arsenault did not file any responding affidavit materials and did not cross-examine Mr. Thevathurai on his affidavit. The evidence of Mr. Thevathurai is un-contradicted.
[3] Based on the contents of the Thevathurai affidavit, the circumstances leading to the Eviction Order are as follows:
• Commencing in 2012, Mr. Arsenault rents a room in a single-family home owned by Mr. Thevathurai but in which the latter does not live. Mr. Thevathurai lives in another home located on the same street as the rental property.
• In 2014 and for personal reasons, Mr. Thevathurai decides that he no longer wants to own two homes on the same street. His plan is to sell one of the homes and live in the other. The tenancies of Mr. Arsenault and the other individual living in the rental property therefore have to be brought to an end.
• In the spring of 2014, Mr. Thevathurai reaches an agreement with both Mr. Arsenault and the only other tenant that their respective tenancies are to be terminated effective April 30, 2015. Each tenant signs a notice of termination of tenancy to that effect.
• The other tenant moves out on or before April 30, 2015.
• In the fall of 2014, Mr. Thevathurai takes the requisite steps to notify Mr. Arsenault of an increase in rent from $550 to $698 per month effective January 1, 2015.
• Commencing in October 2014, Mr. Arsenault stops paying the monthly rent of $550. From October 2014 through April 2015, Mr. Arsenault pays $500 per month in rent.
• Based on the failure of Mr. Arsenault to pay the monthly rent in full, Mr. Thevathurai serves a notice to terminate Mr. Arsenault’s tenancy. Mr. Thevathurai applies to the Board for an eviction order.
[4] In addition to the application by Mr. Thevathurai for an eviction order, there were a total of seven applications on behalf of Mr. Arsenault and former tenants. It is Mr. Thevathurai’s belief that Mr. Arsenault prepared each of the tenant applications. Mr. Arsenault acted as agent for the former tenants on the applications.
Proceedings before the Board
[5] The proceedings before the Board are summarised in the Thevathurai affidavit. The application for an eviction order was scheduled for January 27, 2015. Mr. Thevathurai attends with counsel. Mr. Arsenault represents himself on this date.
[6] Mr. Arsenault requests that the hearing be adjourned to March 2015, and the adjudicator adjourns the hearing. The seven tenant applications and the application for an eviction order are heard in March 2015 as scheduled. Mr. Arsenault is self-represented at that hearing.
[7] In March 2015 the Board hears evidence from: a) one former tenant; b) the individual who drove Mr. Arsenault to look at the rental property in October 2012; and c) Mr. Arsenault.
[8] All of the tenant applications are dismissed. In addition the Board:
a) Finds that the filing of the tenant applications by Mr. Arsenault was an abuse of process;
b) Finds Mr. Arsenault to be a vexatious litigant; and
c) Orders Mr. Arsenault to pay costs of $500 to Mr. Thevathurai.
These determinations are made in one of the tenant application files and do not form part of the Eviction Order which Mr. Arsenault is appealing.
[9] The Eviction Order from which Mr. Arsenault appeals, provides as follows:
The tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before April 30, 2015.
The Tenant shall pay to the Landlord $368.41, which represents the amount of rent owing and compensation up to April 9, 2015, less the rent deposit and interest the Landlord owes on the rent deposit.
The Tenant shall also pay to the Landlord $22.95 per day for compensation for the use of the unit starting April 10, 2015 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 April 20, 2015, the Tenant will start to owe interest. This will be simple interest calculated from April 21, 2015 at 2.00% annually on the balance outstanding.
If the unit is not vacated on or before April 30, 2015, then starting May 1, 2015, 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 Office (Sheriff) is directed to give vacant possession of the unit to the Landlord, on or after May 1, 2015.
Notice of Appeal
[10] The notice of appeal delivered by Mr. Arsenault is 29 pages in length and lists nine grounds of appeal. The grounds of appeal are attached at Schedule ‘A’. When considered as a whole, the grounds of appeal are essentially that the manner in which the application for an eviction order was conducted by the Board:
• Was not in keeping with Mr. Arsenault’s rights of procedural fairness; and
• Was in breach of the Human Rights Code (“the Code”), including the provisions of the Code to be applied by the Board.
As a result of Mr. Arsenault delivering a notice of appeal, the Eviction Order is stayed pending the outcome of the appeal unless otherwise ordered by this Court.
The Issues
[11] The primary issue to be determined is whether Mr. Thevathurai is entitled to an order quashing Mr. Arsenault’s appeal from the April 9, 2015 order of the Board. If so, the secondary issue is moot – as the stay pending appeal of the Eviction Order would not remain in place. Otherwise, the secondary issue to be determined is whether the stay pending the outcome of the appeal is to be lifted.
Decision and Analysis
[12] The appeal by Mr. Arsenault from the Eviction Order is quashed.
a) Right of Appeal – From an Order of the Board
[13] The right of appeal from an order of the Board is addressed in section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 which provides as follows; “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.”
b) Position of the Parties
[14] Mr. Arsenault did not file any evidence on the motion. The materials upon which Mr. Arsenault relies are a factum and an untitled brief of documents. The most appropriate description of the latter is a book of authorities. The factum is 40 pages in length. It is replete with references to matters which are either irrelevant to the issues on the motion or otherwise unsubstantiated by the evidence filed on the motion.
[15] In his submissions, Mr. Arsenault placed a great deal of emphasis on the application of the Ontario Human Rights Code, R.S.O. 1990, c. H-19 (“the Code”) to the proceedings of the Board. On the return of the motion, Mr. Arsenault requested and was given consent by Mr. Thevathurai to: a) file with the Court a transcript of portions of the hearing before the Board; and b) refer to the transcript in attempting to identify how the Board failed to meet its obligations pursuant to the Code.
[16] Mr. Thevathurai’s position is that the nine grounds of appeal upon which Mr. Arsenault relies do not raise a question of law. Mr. Thevathurai also takes the position that the appeal is frivolous, vexatious, without merit, and bordering on an abuse of process.
c) Analysis
[17] Do the grounds of appeal enumerated by Mr. Arsenault raise a question of law? If the grounds do not raise a question of law, then the appeal cannot proceed. If the grounds raise a question of law it then becomes necessary to consider whether, as submitted by Mr. Thevathurai, the appeal is in any event manifestly devoid of merit or substance.
[18] In summary, there is no basis for a finding that the March 2015 hearing was conducted in a manner which was procedurally unfair generally to Mr. Arsenault or specifically in the context of his rights pursuant to the Code. Based on the transcript filed, I find that Board Member Charron was respectful of and patient with Mr. Arsenault.
[19] Mr. Thevathurai’s position is that procedural unfairness, even were there evidence of such unfairness, is not a ‘question of law’ as required on an appeal of the Eviction Order. I agree.
[20] Grounds ‘a’ and ‘b’ from the notice of appeal relate to the manner in which the hearing on January 27, 2105 was conducted by Board Member Nolan. The interim order made on that date is not the subject of appeal. I find that grounds ‘a’ and ‘b’ do not raise a question of law with respect to the Eviction Order.
[21] In ground ‘c’, Mr. Arsenault submits that Board Member Charron, who made the Eviction Order, was required to inform Mr. Arsenault of events which occurred on or before January 27, 2015 (when the interim order was made). Mr. Arsenault also complains of adjournments granted, prior to March 2015, of the hearing of the eight applications (the seven tenant applications and the application for an eviction order). There is no evidence in support of the matters raised in ground ‘c’. Even if there were evidence of some kind, I find that ground ‘c’ does not raise a question of law.
[22] Grounds ‘d’ through ‘i’ are premised on Mr. Arsenault’s right to procedural fairness and delineate reasons why that right was violated by Board Member Charron during the hearing in March 2015 upon the conclusion of which the Eviction Order was made.
[23] Mr. Arsenault’s position is that the procedural unfairness relates to:
• His cognitive health (ground ‘d’)
• Commentary about his health (ground ‘e’)
• Evidentiary issues (ground ‘f’)
• Video evidence of alleged racism on the part of the landlord (ground ‘g’)
• Alleged violations by the landlord of the Residential Tenancies Act (ground ‘i’)
• Issuing the Eviction Order (ground ‘i’); and
• Human Rights Code Interpretation Guideline #17 (ground ‘i’).
[24] As noted above, Mr. Arsenault filed no affidavit evidence in response to the motion to quash. On the consent of Mr. Thevathurai, Mr. Arsenault was permitted to file 43 pages of transcript - a series of extracts from the March 2015 hearing. The transcript does not include any evidence in support of a finding that the conduct of the hearing in March 2015 resulted in any procedural unfairness to Mr. Arsenault, either generally or as alleged in grounds ‘d’ through ‘i’.
[25] Mr. Arsenault placed significant emphasis on the Board’s Interpretation Guideline #17 titled, “Human Rights” (“the Guideline”). The Guideline identifies the Code issues that may arise in Board proceedings. The issues include:
A person requires accommodation from the Board in order to access the Board’s services and participate in the Board’s proceedings; and
A tenant asserts that the Member should grant relief from eviction because they are covered by one or more of the categories in subsection 2(1) of the Code, such as disability, and the landlord has not accommodated them to the point of undue hardship.
[26] With respect to item 1, there is no evidence that Mr. Arsenault was requested and denied any accommodation he required for the March 2015 hearing. The Guideline requires that the Member “be attentive to indications which suggest a party may require accommodations in order to participate in the hearing even if the party does not request any accommodations from the Board.” Mr. Arsenault relies upon the transcript as evidence that Board Member Charron failed to be sufficiently attentive to Mr. Arsenault’s condition and provide accommodations to him. Mr. Arsenault refers for example to the following:
• At least three references which Mr. Arsenault made during the hearing to the fact that he did not get a lot of sleep the night before the hearing, and was tired the day of the hearing. (pp. 7, 9 and 17 of the transcript).
• His statement that, “I’m not having a good day.” (p. 33 of the transcript).
• His statement, “Oh my head.” (p. 34 of the transcript).
[27] When the transcript extracts are reviewed in their entirety it is clear that Mr. Arsenault was capable of speaking at length, making submissions on a number of points, and able to recall in detail events from throughout the landlord-tenant relationship. The transcript does not support a finding that the Board and/or Board Member Charron failed to comply with the Guideline as it relates to accommodation.
[28] With respect to item 2, the only grounds relied upon by Mr. Thevathurai in support of his application for an eviction order was arrears of rent. Mr. Arsenault attempted to establish before the Board and to convince this Court that Mr. Thevathurai’s efforts to bring the Arsenault tenancy to an end are evidence of the former’s discriminatory behaviour towards Mr. Arsenault because he is a person with a disability. Interpretation Guideline #17 addresses the scenario suggested by Mr. Arsenault. Section 2 of the Guideline deals with landlord applications and provides as follows:
If the grounds for eviction contained in the landlord’s application are unrelated to the tenant’s membership within one or more of the categories contained in subsection 2(1) of the Code, the Member cannot find that the tenant has been discriminated against by the landlord. For example, if the landlord has filed an application for termination of the tenancy based on arrears of rent, the fact that the tenant has a hearing impairment is likely not relevant to the Member’s determination of the merits of the landlord’s application.
[29] The Board considered Mr. Thevathurai’s application for an eviction order based solely on Mr. Arsenault’s failure to pay rent. As a result, there was no basis for a finding that Mr. Arsenault was discriminated against by his landlord. With respect to the second portion of the paragraph from the Guidelines quoted above, there is no evidence to support a finding that the Board failed to take into consideration Mr. Arsenault’s circumstances when considering whether or not to grant relief from eviction.
d) Motion to Quash – The Law
[30] 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.”
[31] Mr. Thevathurai relies upon the decision of the Supreme Court of Canada in National Life Assurance Company of Canada v. McCoubrey, [1926] S.C.R. 277 as setting out the test to be applied on a motion to quash:
Upon the argument of the motion, however, it was suggested to counsel for the respondent that he should consider the advisability of asking that the appeal be quashed for such manifest lack of substance as would bring it within the character of vexatious proceedings designed merely to delay the plaintiff’s recovery – “proceedings against good faith.” … Every court of justice has an inherent jurisdiction to prevent such abuse of its own procedure … If an appeal, though within its jurisdiction, be manifestly entirely devoid of merit or substance, this court will entertain favourably a motion to quash it, as it does in cases where costs only are involved … as a convenient way of disposing of the appeal before further costs have been incurred.
[32] That test was applied in the decision of this Court in O’Regan v. Commvesco Levinson-Viner Group, 2006 CarswellOnt 5398 at paras. 39 and 40:
National Life Assurance Co. of Canada v. McCoubrey, [1926] S.C.R. 277 at p. 283 has established that where there is no proper question of law raised and an appeal is manifestly devoid of merit, i.e. where there is no prospect of finding an error by the trial judge which could lead to success on the appeal, it may properly be quashed on a motion to quash.
The National Life Assurance case also stands for the proposition that where an appeal lacks merit, every court of justice has an inherent jurisdiction to prevent such abuse of its own procedure. An appeal having a manifest lack of substance as would bring it within the character of vexatious proceedings designed merely to delay should not be entertained.
[33] The appeal by Mr. Arsenault falls within the categories of appeals described in the quote immediately above:
• There is no evidence to support the grounds of appeal delineated by Mr. Arsenault.
• Even if there were evidence in support of the grounds relied upon, the grounds when considered individually or in combination do not raise a question or questions of law.
• The appeal manifestly lacks substance and is entirely devoid of merit.
Order
[34] The appeal by Mr. Arsenault of the Eviction Order of the Board dated April 9, 2015 in File No. EAL-45056-14 is quashed. Quashing the appeal renders moot the issue of lifting of the stay pending appeal.
[35] Mr. Arsenault requested that he be granted “a reasonable time” from the date of this order, if made, within which to find another place to live. This Endorsement is dated very close to the end of a month. The Eviction Order allowed Mr. Arsenault three weeks from the date of the order within which to vacate the rental unit.
[36] In all of the circumstances it is reasonable to give Mr. Arsenault until late September (approximately one month) within which to find alternate accommodation. Mr. Arsenault must move out of the rental unit no later than 5:00 p.m. on Sunday, September 27, 2015.
[37] Mr. Thevathurai requested that if the appeal is quashed, I also make an order dispensing with the requirement to obtain the approval of Mr. Arsenault to the form and content of the order to be issued and entered. Mr. Arsenault did not consent to such an order and wants the opportunity to review the draft order and provide his approval as to form and content.
[38] Based on the history of the landlord-tenant relationship, to and including the hearing of the motion to quash the tenant’s appeal, I find that Mr. Thevathurai has a validly held concern with respect to securing Mr. Arsenault’s approval of the draft order. The order to be issued and entered is straightforward. The order requires my signature. In the event that the order presented to me for signature does not accurately reflect the contents of this Endorsement, it remains open to me to request that the parties appear before me to settle the terms of the order. As a result, there is no prejudice to Mr. Arsenault if he is not given the opportunity to approve the draft order as to form and content.
[39] For the reasons set out above, I dispense with the requirement that Mr. Thevathurai secure the approval of Mr. Arsenault to the form and content of a draft order in the form of order to be issued and entered.
[40] In summary, the order made is as follows:
The appeal by Mr. Arsenault of the Eviction Order of the Board dated April 9, 2015 in File No. EAL-45056-14 is quashed.
Mr. Arsenault must move out of the rental unit no later than 5:00 p.m. on Sunday, September 27, 2015.
The requirement for Mr. Arsenault to approve the draft order as to form and content before the order is issued and entered is dispensed with.
[41] In the event the parties are not able to agree upon costs of the motion to quash they may make submissions in writing as follows:
The respondent shall deliver submissions with respect to costs: a) limited to a maximum of three-pages; and b) no later than 10 business days following the date of release of this Endorsement;
The appellant shall deliver submissions with respect to costs: a) limited to a maximum of three-pages; and b) no later than 15 business days following the date of release of this Endorsement; and
All costs submissions shall comply with Rule 4 of the Rules of Civil Procedure.
Date: August 25, 2015
Justice S. Corthorn
CITATION: Arsenault v. Thevathurai, 2015 ONSC 5357
COURT FILE NO.: 15-DC-2110
DATE: 2015/08/25
ONTARIO
DIVISIONAL COURT OF JUSTICE
RE: Pierre Arsenault, Tenant (Appellant)
AND
Akilan Thevathurai, Landlord (Respondent)
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Pierre Arsenault, self-represented Tenant (Appellant)
S. David Lyman, for the Landlord (Respondent)
ENDORSEMENT
Justice S. Corthorn
Released: August 26, 2015