CITATION: Cottle v. Atkinson Housing Co-operative Inc., 2015 ONSC 7320
DIVISIONAL COURT FILE NO.: 145/14
DATE: 20151125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, CORBETT and RAY JJ.
BETWEEN:
CHARLENE COTTLE
Appellant
– and –
ATKINSON HOUSING CO-OPERATIVE INC. c/o COMMUNITY FIRST DEVELOPMENTS INC.
Respondent
Peter I. Waldman, for the Appellant
Derrick M. Fulton, for the Respondent
HEARD: November 23, 2015 in Toronto
MOLLOY J.:
REASONS FOR DECISION
The Appeal
[1] Charlene Cottle appeals from: (a) an Order of the Landlord and Tenant Board (“the Board”) dated January 16, 2014 (“the Arrears Order”) ordering payment of rent arrears and eviction; and (b) an Order of the Board dated March 19, 2014 (“the Review Order”) upholding the Arrears Order.
Background Facts
[2] The initial hearing arose from an application by Atkinson Housing Co-operative Inc. (“Atkinson Housing”) in which Atkinson Housing (as landlord) alleged that Ms. Cottle was a tenant who was in arrears of her rent. Atkinson Housing sought payment of arrears and an order terminating the tenancy. The matter proceeded before the Board on January 13, 2014. Ms. Cottle did not appear and an order was made in her absence, finding her to be in arrears of rent in the amount of $1475.36 for the period from July 1, 2013 to January 16, 2014, and further finding that the tenancy would be terminated if she failed to pay the total sum of $2135.00 on or before January 27, 2014.
[3] Ms. Cottle sought a review of the Arrears Order on the grounds that: (1) she is a member of the co-operative and not a tenant; (2) she did not receive notice of the January 13, 2014 hearing until the day after the hearing; and (3) she was not in arrears of rent. Ms. Cottle produced copies of the money orders she had obtained, payable to Atkinson Housing, for all of the months in which she was alleged to have defaulted in paying her rent. She maintained that she had delivered those money orders to Atkinson Housing.
[4] It is common ground between the parties that, at the time in question, the Board had no jurisdiction to evict a member of the co-operative absent proscribed steps taken by the housing co-operative. If Ms. Cottle was a co-operative member (as she alleged), rather than a tenant (as Atkinson Housing represented to the Board), the Board’s Arrears Order was made without jurisdiction.
[5] The review hearing was scheduled for January 20, 2014, but was adjourned on that date on consent so that the parties could explore mediation. Ms. Cottle was represented by Thomas Sieber, an articling student from the office of Peter I. Waldmann Professional Corporation. Atkinson Housing was represented by a paralegal, Leo Corsetti. The parties then proceeded to a mediation session and their representatives had some resolution discussions. Ms. Cottle produced evidence from her bank that she had actually obtained the money orders and that they had never been cashed. However, the bank rules required a six month waiting period from the date of the issuance of any money order before the bank could reimburse Ms. Cottle for the amounts she paid to obtain them.
[6] The review hearing was scheduled for March 18, 2014. On March 12, 2014, Mr. Sieber (on behalf of Ms. Cottle) sent an email to Mr. Corsetti advising him about the six month waiting period to secure the return of monies paid for the money orders. He said Ms. Cottle had now received back $350.00, which he proposed would be held by his law firm in trust and remitted to Atkinson Housing. Mr. Sieber also advised that he was in another trial on March 18, 2014 and unable to attend before the Board. He asked Mr. Corsetti how he wished to proceed.
[7] Mr. Corsetti responded by email dated March 13 stating, “Now that Ms. Cottle has admitted the m/o’s were never cashed the original order is correct and perhaps the reasons for the review are no longer valid and we can consent to a withdrawal and therefore no reason for a hearing.” Mr. Corsetti also advised that he would be following up with Ms. Cottle’s bank to verify the information she had provided.
[8] Mr. Corsetti did not respond to a further email from Mr. Sieber. Therefore, Mr. Sieber faxed a letter to Mr. Corsetti on March 17, 2014 (the day before the hearing), as follows:
I have had no response to my email of last Friday. I like to inform you again that I agree to your consent on withdrawing your hearing scheduled tomorrow at the Landlord and Tenant Board. I also reiterate I will not able to attend the hearing this week, as I’m in the middle of a trial at the Ontario Superior Court. I believe that a solution to the money due in respect to Ms. Cottle’s rent can be worked out amicably.
Please confirm as soon as possible.
[9] Mr. Corsetti did not respond to this letter. Instead, Mr. Corsetti attended before the Board on March 18, 2014 and advised the presiding Member, Mr. Pilon, “I believe we have a withdrawal.” He referred the Member to his email to Mr. Sieber on March 13 and also Mr. Sieber’s letter to him dated March 17. The Member noted that the letter was ambiguous and that it was “debatable” whether Mr. Sieber was actually agreeing to withdraw the review application. The Member then stated that Mr. Sieber had not contacted the Board, to which Mr. Corsetti agreed. When the Member proposed denying the request for a review, Mr. Corsetti stated, “That’s fine by me.” The Member then asked Mr. Corsetti about the issue of Ms. Cottle being a member of the co-operative, to which Mr. Corsetti stated, “Oh, but that part of the, that was resolved, I mean, she’s not a member of the Co-op, period.”
Analysis: The Review Order
[10] The appellant submits that the Review Order should be set aside because it was obtained in breach of Ms. Cottle’s rights to procedural fairness and natural justice. I agree.
[11] In support of the arguments with respect to procedural fairness and natural justice, the appellant filed the affidavit of Mr. Sieber. He attests in that affidavit to his belief that there was a tentative settlement between the parties that upon Ms. Cottle paying the arrears of rent, Atkinson Housing would withdraw its eviction order. Because Mr. Corsetti failed to respond to Mr. Sieber’s letter seeking confirmation, Mr. Sieber arranged for a colleague to attend at the hearing on behalf of Ms. Cottle. Unfortunately, that colleague did not attend due to illness, which Mr. Sieber did not find out about until it was too late.
[12] Mr. Sieber categorically denied that there was any resolution of the issue of Ms. Cottle being a member of the co-operative. She continues to assert that she is a member of the co-operative, and not a tenant. She has been a resident in this housing complex for 40 years.
[13] Mr. Sieber was not cross-examined on his affidavit. No responding affidavit material was filed on behalf of Atkinson Housing.
[14] In my view, Mr. Corsetti, as agent of Atkinson Housing, was less than candid with the Member at the review hearing. I agree that the letter sent by Mr. Sieber was somewhat ambiguous. Nevertheless, given the context in which the communications between Mr. Corsetti and Mr. Sieber arose, it is difficult to see how Mr. Corsetti could have understood that Ms. Cottle was intending to withdraw her request for a review and leave the eviction order in place. It is clear that the parties contemplated ongoing discussions about the arrears, including the correct amounts and the timing of payment. Those discussions are consistent with the review hearing being adjourned, or at the very least withdrawn without prejudice to its being renewed. There was certainly no discussion of the review being denied, to which Mr. Corsetti readily agreed. I also believe that it was incumbent upon Mr. Corsetti to be more forthcoming with the Board about the several communications he had received from Mr. Sieber explaining the conflict in his schedule and the reason he was unable attend before the Board, rather than simply agreeing with the Member that Mr. Sieber had failed to contact the Board itself.
[15] Most egregious of all, however, is that the Member was clearly concerned about the jurisdictional issue. Notwithstanding this, Mr. Corsetti advised the Member in a definitive manner that the issue had been resolved, which was not the case. At the very least, this constitutes sharp practice by Mr. Corsetti.
[16] The decision, having been obtained in that manner, is unfair to Ms. Cottle and breaches her rights to natural justice. Accordingly, it is set aside.
Analysis: The Arrears Order
[17] Ms. Cottle has asserted that she received notice of the January 13, 2014 hearing on January 14, 2014. Mr. Sieber’s affidavit attests to his belief in that fact. There is no evidence to rebut that assertion. The only proof of service offered by Atkinson Housing is a Board form entitled “Certificate of Service” signed by Mr. Corsetti in which he states that on December 20, 2013, the Application Form L1 and Notice of Hearing were served on Charlene Cottle by sending the documents by “mail or Xpresspost” to her last known address. The Certificate does not specify which means, regular mail or Xpresspost, was chosen in this instance.
[18] In the materials filed by Atkinson Housing on this appeal, the L1 form that accompanies the Certificate of Service states that a hearing will be held at a time, date and location set out in the “attached Notice of Hearing.” However, there is no Notice of Hearing attached.
[19] In these circumstances, it is by no means clear that Ms. Cottle received notice of the hearing.
[20] There are also matters important to the Board’s exercise of its discretion that were not brought to the attention of the Board. In particular, Ms. Cottle asserts that she was not a tenant, but rather a member of the co-operative. If so, the Board was without jurisdiction to make the order it did.
[21] Further, Ms. Cottle has produced proof that she obtained money orders payable to Atkinson Housing to cover her rent for all of the months in dispute. There would be no reason for Ms. Cottle to pay cash for those money orders every month for a period of six months and then not give them to Atkinson Housing. The fact that the money orders were not cashed suggests they were not stolen. If Atkinson Housing received the money orders, and deliberately did not cash them so as to put Ms. Cottle into arrears, that could be a factor relevant to the Board’s decision. In particular, it could well affect the Board’s decision under s. 83 (1)(a) of the Residential Tenancies Act[^1] which provides that notwithstanding anything else in the legislation or tenancy agreement, the Board may “refuse to grant [the landlord’s] application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse.” Thus, a manufactured arrears situation could well be regarded by the Board as a fairness issue that would justify refusing an eviction order.
[22] In all of these circumstances, I find that the Arrears Order cannot stand and it is therefore set aside.
Conclusion and Order
[23] In the result both Orders of the Board under appeal dated January 16, 2014 and March 18, 2014 are set aside. This is without prejudice to Atkinson Housing to bring whatever new application it considers appropriate in respect of outstanding arrears.
[24] Both counsel before us on the appeal took the position that the Board now has jurisdiction to deal with the arrears and eviction issue due to recent amendments to the legislation bringing members of co-operatives within the jurisdiction of the Board on these issues, in the same manner as tenants. Counsel also agreed that in order to determine the rent due and whether an eviction order should issue, the Board would no longer be required to determine whether Ms. Cottle is a tenant, as opposed to a member of the housing co-operative.
[25] The issue of Ms. Cottle’s status as a member of the co-operative may be relevant for other purposes. However, Ms. Cottle commenced a proceeding in the Superior Court in June 2014 seeking a declaration that she is a member of the co-operative. That matter is ongoing and is still at the pleadings stage.
[26] The parties therefore agreed that we should not remit this matter to the Board for a new hearing at this time.
[27] The successful appellant is entitled to her costs. Mr. Waldman, for Ms. Cottle seeks those costs in the amount of $4,064.84, inclusive of tax and disbursements. Counsel for the respondent accepts this is a reasonable amount. Accordingly, the appellant shall have her costs fixed at $4064.84 payable forthwith.
MOLLOY J.
CORBETT J.
RAY J.
Released: November 25, 2015
CITATION: Cottle v. Atkinson Housing Co-operative Inc., 2015 ONSC 7320
DIVISIONAL COURT FILE NO.: 145/14
DATE: 20151125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, CORBETT and RAY JJ.
BETWEEN:
CHARLENE COTTLE
Appellant
– and –
ATKINSON HOUSING CO-OPERATIVE INC. c/o COMMUNITY FIRST DEVELOPMENTS INC.
Respondent
REASONS FOR DECISION
Molloy J.
Released: November 25, 2015
[^1]: Residential Tenancies Act, 2006, SO 2006, c 17