CITATION: Toronto Community Housing Corporation v. McGowan, 2016 ONSC 172

DIVISIONAL COURT FILE NO.: 107/15 TSL-37833-13, TSL-40637-13 and TSL-41159-13 DATE: 20160107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, PATTILLO AND ABRAMS JJ.

BETWEEN:

TORONTO COMMUNITY HOUSING CORPORATION Applicant/Respondent

– and –

CANDICE MCGOWAN Respondent/Appellant

Robert G. Doumani and Lauren Chee-Hing, for the Applicant/Respondent, Toronto Community Housing Corporation Susan Jane von Achten, for the Respondent/ Appellant Linda H-C Chen, for the Landlord and Tenant Board, Intervenor

HEARD at Toronto: January 7, 2016

SACHS J. (ORALLY)

Introduction

[1] The appellant is a long standing tenant of a unit run by the respondent, Toronto Community Housing Corporation.

[2] By order dated February 17, 2015, the Landlord and Tenant Board (the “Board”), among other things, terminated the appellant’s tenancy as of February 28, 2015 pursuant to the grounds for termination of tenancy in ss. 60(1), 61(1) and 66(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”), namely knowingly and materially misrepresenting income, permitting illegal acts and the impairment of the safety of others.

[3] The appellant appeals the order and seeks an order setting aside the termination.

Jurisdiction and Standard of Review

[4] Section 210(1) of the Act provides that appeals to this court from an order of the Board are only on a question of law. The standard of review is reasonableness: First Ontario Realty Corp., v. Deng, 2011 ONCA 54, [2011] O.J. No. 260 (C.A.).

Facts

[5] The essential facts, as noted in the reasons of the Board, are not in dispute.

[6] In the early hours of February 2, 2013, the Toronto Police executed a search warrant on the appellant’s unit. The target of the search warrant was Otis McLeod, the appellant’s then boyfriend. The appellant, her two minor children, ages 11 and 13, and Mr. McLeod were found in the unit. The police discovered three handguns in the master bedroom, one in the gym bag near the dresser and two in a dresser drawer next to the bed. The gun in the gym bag and one of the guns in the drawer were loaded with ammunition. None of the occupants were registered or licensed to possess a gun. Mr. McLeod was subsequently charged and convicted on two counts of unauthorized possession of a firearm. The appellant was not charged in connection with the guns.

[7] Mr. McLeod lived in the unit from January 2012 to July 2012 while recovering from a bullet wound to the leg. He went back to work in July 2012. At the time of the search warrant, a quantity of men’s clothing and shoes were found in the unit. At no time did the appellant notify the respondent that the household composition and household income had changed as she is required to do under both the Housing Services Act, 2011, S.O. 2011, c. 6, Part v and her tenancy agreement.

[8] The appellant testified at the hearing that Mr. McLeod did not reside with her. She said he in fact lived with another woman and his mother and that the clothes found did not belong to him.

The Position of the Appellant

[9] On this appeal the appellant makes the following submissions:

(i) The Board erred in law in exercising its discretion under s. 83 of the Act by failing to consider the best interests of the children as that term is defined by the Children’s Law Reform Act, R.S.O. 1990, c. 12 and the Child and Family Services Act, R.S.O. 1990, c. 11.

(ii) The Board erred in law by failing to apply the appropriate burden of proof when it came to its finding that the appellant had permitted the commission of an illegal act. According to the appellant, when a criminal act is alleged in a civil context, a higher burden of proof than balance of probabilities applies.

(iii) The appellant argues that if the appropriate burden of proof is a balance of probabilities, while the Board may have articulated the correct burden of proof when it came to its findings, it in fact applied the lesser standard of suspicion.

Analysis

Failure to Consider Best Interests of the Children

[10] Section 83(1) gives the Board the authority upon an application for an order to evict a tenant, despite any other provision of the Act or tenancy agreement, to refuse to grant the application “unless satisfied, having regard to all the circumstances, that it would be unfair to refuse.” The exercise of the authority is discretionary. The consideration is fairness.

[11] As indicated, the appellant submits that in the course of its s. 83(1) analysis, the Board ought to have considered the best interests of her children as set out in the Children’s Law Reform Act and the Child and Family Services Act.

[12] We note that this submission was not made before the Board. More importantly, while it is fair to argue that the Board, in exercising its discretion under s. 83, should consider the effects of the eviction order on the appellant and her children, the “best interests” test set out in the Children’s Law Reform Act and the Child and Family Services Act does not apply to proceedings before the Board.

[13] The Board in conducting its s. 83 analysis considered the circumstances as presented by both the appellant and the landlord. It recognized the hardship to the appellant and her children, but weighed this hardship against the risk to the safety of the other tenants in the complex (who include children).

Applicable Burden of Proof

[14] The appellant submits that the allegations of criminal conduct on the part of the tenant require a higher standard of proof than “balance of probabilities”. Proceedings under the Act are civil in nature. It has long been settled that there is only one standard of proof in civil matters, the balance of probabilities: F. H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40, 45-46 and 49.

Application of the Wrong Burden of Proof

Impaired Safety Finding

[15] There is no issue that the appellant permitted Mr. McLeod to be in the unit or that Mr. McLeod had brought firearms into the unit when young children were present. In our view, this evidence along with the unsecure location of loaded firearms, was sufficient to support the Board’s finding on this issue.

[16] In this regard we note that s. 66(1) of the Act requires proof only that a tenant permitted a person to be in the residential complex who committed an act that seriously impaired the safety of another person; there is no requirement of fault on the part of the tenant: Harris v. Toronto Community Housing Corp. (2009), 2009 34989 (ON SCDC), 178 A.C.W.S. (3d) 1041 (Ont. Div. Ct.), at paras. 17-19 and 21.

Illegal Act

[17] In concluding that the appellant’s tenancy should be terminated pursuant to s. 61(1), the Board relied on the portion of the section where the tenant permits another occupant of the unit to commit an illegal act.

[18] The Board found that it was satisfied on a balance of probabilities both that Mr. McLeod was an occupant of the unit and that the appellant was aware that he had guns in the unit. At para. 11 of its decision the Board states as follows:

Given that two of the guns were found in the Tenant’s drawer in the master bedroom next to the bed and not in some out of the way or hidden area, I find it more likely than not that the Tenant was aware of their presence in the unit and by not requiring OM to remove them effectively allowed or permitted OM to keep them there. As a result, I find on the balance of probabilities that the Tenant permitted OM to commit an illegal act and this act occurred in the rental unit.

[19] The appellant submits that while the Board was aware of their proper burden of proof it had to apply, it did not in fact apply that burden. Rather, it acted on suspicion only. In making this submission the appellant emphasizes the complete lack of evidence as to when Mr. McLeod placed the guns in the drawer (according to the appellant he could have done so just before the police arrived) and the Board’s apparent disregard both of the evidence of the police as to her shock and surprise when the guns were found in her unit and the evidence of the police that she was a witness for the Crown in Mr. McLeod’s criminal proceeding.

[20] It must first be emphasized that our own jurisdiction is to intervene on questions of law. As such, it is not this Court’s task to reweigh evidence. Absent an error of law we cannot interfere with the Board’s factual findings. Further, in our view there was sufficient evidence for the Board to come to the conclusions it did.

[21] In regard to its finding that Mr. McLeod was an occupant of the unit, the Board heard evidence that Mr. McLeod provided first responders with the address of the unit as his address after he was shot and that he had been living there at least since his shooting until the police raid when he was arrested. There was evidence from one of the police officers who testified at the Board that Mr. McLeod referred to the bedroom in the unit as “our bedroom”. There was evidence that the police found a substantial quantity of men’s clothing, shoes as well as cologne and toiletries in the unit, including the bedroom. The size of the clothing corresponded to a man as Mr. McLeod’s build. There was evidence that the police found Mr. McLeod’s passport in the dresser drawer where the guns were located. There was evidence that after being detained in the police raid, Mr. McLeod indicated that he would like to leave his personal belongings including his wallet with the appellant.

[22] In regard to the appellant’s knowledge that there were guns in the apartment, it is important to note that two of the guns were found in a dresser beside the bed sandwiched between men’s clothing with Mr. McLeod’s passport on top of the clothing. It is counter-intuitive to suggest that Mr. McLeod would have placed guns in this location with his passport on top immediately prior to the police raid.

[23] In our view, the Board had sufficient circumstantial evidence before it from which it could draw the inference that it was more likely than not that the appellant knew that there were guns in the unit.

Misrepresentation of Income

[24] The appellant submits that the Board erred in holding that she “knowingly and materially” misrepresented her income in the absence of any evidence she received any income either or indirectly from Mr. McLeod and in the absence of any evidence that the misrepresentation was “material”. Section 60(1) of the Act does not require the landlord to demonstrate that the appellant received any income from Mr. McLeod. If the appellant materially misrepresented the income of any members of the household to occupy the unit, that is a sufficient basis for the landlord to seek to terminate the tenant’s tenancy.

[25] The tenant admitted that Mr. McLeod was working after July 2012 and there is no issue that his income was not disclosed to the landlord. These facts, plus the facts that supported the Board’s finding that Mr. McLeod was an occupant of the unit, were sufficient to justify the Board’s conclusion with respect to misrepresentation of income.

Conclusion

[26] For these reasons the appeal is dismissed.

Costs

[27] I have endorsed the Appeal Book, “For reasons given orally by Sachs J. this appeal is dismissed. In viewing the circumstances of this case this court declines to make an order as to costs against the appellant.”

___________________________ SACHS J.

PATTILLO J.

ABRAMS J.

Date of Reasons for Judgment: January 7, 2016 Date of Release: January 12, 2016

CITATION: Toronto Community Housing Corporation v. McGowan, 2016 ONSC 172 DIVISIONAL COURT FILE NO.: 107/15 TSL-37833-13, TSL-40637-13 and TSL-41159-13 DATE: 20160107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, PATTILLO AND ABRAMS JJ.

BETWEEN:

TORONTO COMMUNITY HOUSING CORPORATION Applicant/Respondent – and – CANDICE MCGOWAN Respondent/Appellant

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: January 7, 2016 Date of Release: January 12, 2016