Lingbaoah v. Abagi, 2016 ONSC 3474
DIVISIONAL COURT FILE NO.: 121/16
LTB FILE NO.: TSL-68528-15
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Lorna Lingbaoah, Landlord/Moving Party
AND:
Andrew Abagi, Tenant/Responding Party
BEFORE: Thorburn J.
COUNSEL: Jane Ferguson, for the Landlord/Moving Party
Mr. Abagi, Self-represented
HEARD at Toronto: May 24, 2016
ENDORSEMENT
OVERVIEW
1This is a motion by the Landlord to quash the Tenant, Andrew Abagi’s, appeal from an Order made by the Landlord and Tenant Board (“the Board”) on February 24, 2016. The Landlord claims the Tenant’s appeal is without merit and is brought solely to permit him to live rent-free in the premises and to delay his eviction.
2The Tenant resides in an apartment at Unit #1 – 355 Vaughan Road, Toronto.
3The Tenant did not attend the hearing before the Board. The Landlord elected to proceed with the arrears and withdrew the portion of the application based on the Tenant’s conduct.
4On February 24, 2016, the Board terminated the tenancy agreement because of rental arrears.
5The Tenant appealed the Termination Order on March 10, 2016, thereby obtaining an automatic stay of enforcement, including eviction, of the Termination Order.
6The Tenant has yet to provide the transcript of the Board’s hearing for review by the Appeal Panel.
THE TEST ON A MOTION TO QUASH AN APPEAL
7An appeal lies to the Divisional Court from a decision of the Board but only on a question of law. (Residential Tenancies Act, 2006, S.O. 2006, c. 17.) The Board is required to be correct on issues of law. (Dollimore v. Azuria, [2002] O.J. No. 4408 (Div. Ct.); Samuel Property Management v. Nicholson (2002), 2002 45065 (ON CA), 61 O.R. (3d) 470(C.A.).)
8This Court has jurisdiction to quash an appeal under section 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, such relief should only be granted where it is demonstrated that the appeal is “manifestly devoid of merit” or where the appeal can be said to be an abuse of process because it has been brought solely for the purpose of delay. (Oatway v. Canada, [1945] S.C.R. 203; Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 1976 793 (ON CA), 13 O.R. (2d) 430 (C.A.); Hornstein v. Royal Bank, 2007 CarswellOnt 2413 (Ont. Div. Ct.).)
GROUNDS OF APPEAL
9The following issues must be determined:
a) Did the Board make an error of law?
b) Is the appeal manifestly devoid of merit and/or an abuse of process?
THE FACTUAL BACKGROUND
10The Tenant entered into a lease agreement with the Landlord on July 15, 2015 and took possession of the Rental Unit on or about July 20, 2015.
11He entered into a one-year lease agreement commencing July 20, 2015. He agreed to pay rent in the amount of $1,400.00 payable on the 20th day of each month. The Lease provides that natural gas, heat, water and garbage collection are included. Each unit has its own electrical meter. The Landlord contends that the Tenant is responsible for setting up and paying for his electricity consumption. The Tenant arranged his own hydro/electricity account.
12The Tenant paid first and last month’s rent but has failed to make any further rental payments although he has resided in the apartment since July 2015.
13The amount now owing on account of rental arrears is $14,000.
14The Tenant brought his own Application before the Board claiming damages from the Landlord for damage allegedly caused by the Landlord’s handling of the Tenant’s possessions and harassment and sought to set off those amounts as against the rental arrears.
15The Tenant failed to attend the Case Management Hearing scheduled by the Board for his Application on November 17, 2015, and as a result, his Application to the Board to deal with those issues was dismissed as abandoned. The Tenant has taken no steps to address this issue with the Board or to Appeal the Board’s ruling.
16These issues are the same as the ones he now seeks to raise on this Appeal.
17The Landlord’s Application was adjourned on December 18, 2016. On January 15, 2016, the Board rescheduled the matter to February 23, 2016.
18The Tenant failed to attend the hearing of the Landlord’s Application on February 23, 2016. He claims not to have received the Notice of Hearing although,
a) notice was mailed by the Board,
b) it is the Board’s practice to mail notices to parties. A new date was set for the middle of January 2016, and notice of the hearing date was mailed out by the Board according to the Board’s records,
c) the Board advised that it had not received any return mail indicating the Tenant had not been served,
d) the new hearing date was posted on the Board’s website, and
e) the Landlord’s legal representative called the Tenant’s apartment and spoke with someone there.
19The Tenant admits a phone call was received but says it was his brother, not he, who answered the phone call.
20Thereafter, the Tenant took no steps to contact the Board to have the matter held down or adjourned and brought no Request to Review the Board’s decision on the basis that he was not able to attend the hearing. He offered no explanation for failing to do so.
21At the hearing, the Landlord decided not to pursue the issue of the Landlord’s reasonable enjoyment of the property and only pursued the issue of rental arrears. The Board ordered the Tenant to pay the arrears owing before March 3, 2016, failing which the Landlord would be entitled to file the Termination Order with the Sheriff for enforcement of the Order.
22The Tenant failed to pay the arrears and the Landlord therefore filed the Termination Order with the Sheriff, which was served on the Tenant on March 4, 2016. The Tenant did not vacate and instead filed this Notice of Appeal on March 10, 2016.
23Instead, he commenced this Appeal, by which he also obtained an automatic stay of the eviction order that was part of the Board’s Termination Order.
24On March 22, the Landlord’s counsel asked the Tenant to provide dates in March and April for hearing the motion to quash the appeal. The Tenant responded that his counsel was not available until the first week of May 2016.
25The parties attended this court on May 11, 2016. The Tenant was self-represented. He claimed he did not receive the Landlord’s material and sought an adjournment. The matter was adjourned to May 24, 2016 for a hearing peremptory on the Tenant with or without counsel.
26The Tenant has been living rent-free since August 2015.
27The Landlord claims she is suffering serious financial hardship because of the conduct of the Tenant.
ANALYSIS AND CONCLUSION
28Section 210 of the Residential Tenancies Act provides that an appeal to Divisional Court may be made from a decision of the Landlord and Tenant Board but only on a question of law.
29The court must also determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. These criteria include the following:
a. the context of each case;
b. the nature of the statutory scheme in which the decision arises;
c. the importance of the decision to the individuals affected;
d. the legitimate expectations of the party challenging the decision; and
e. the duty of fairness.
30These factors are important to ensure that administrative decisions are fair and open, and provide an opportunity for those affected by the decision to put forward their views and have them considered by the decision-maker.
31Section 134(3) of the Courts of Justice Act provides that this court may quash an appeal where it is demonstrated that the appeal is “manifestly devoid of merit” or where the appeal is an abuse of process because it has been brought solely for the purpose of delay.
32There is no error of law articulated in the Notice of Appeal. A Board Member hearing an application to terminate a tenancy on the grounds of rental arrears has full discretion to set the termination date as the Member sees fit.
33Moreover, the Tenant’s
a. failure to proceed with his own Application to deal with the harm he says he has suffered at the hands of the Landlord,
b. failure to attend the hearing of the Landlord’s Application notwithstanding the many ways in which the hearing date was provided,
c. failure to pay any arrears owing,
d. decision to wait until after his eviction notice was served to file this Notice of Appeal on March 10, 2016,
e. refusal in March, 2016 to provide any dates for this motion prior to May, 2016 on the basis that his counsel was unavailable until May although it was always understood that he would appear on his own behalf,
f. failure thereafter to demonstrate his intention to proceed with the Appeal by producing transcripts of the Board hearing, and
taken together, suggest there was no breach of procedural fairness but rather, there was a deliberate attempt on the part of the Tenant to remain in the apartment without paying rent.
34The Landlord suggests this is a pattern of behaviour and produced records showing that this is the third time this Tenant has been involved in a landlord and tenant appeal following an eviction notice, allowing him to live rent free before the Appeal was quashed.
35On the evidence before me there is no error of law and the Appeal is without merit. For the reasons set out above his appeal is quashed. The decision to the Landlord and Tenant Board is therefore restored to good standing and the stay Order is lifted.
COSTS
36The Landlord filed written submissions on costs. He seeks partial indemnity costs of $7,500.00 which includes costs of this half day attendance and the prior attendance before Dambrot J. and preparation of materials.
37I have considered the factors set out in Boucher v. Public Accountants Council (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), especially the governing principles of reasonableness and proportionality, the reasonable expectations of the parties, the material filed and the complexity of the matter.
38Costs of $5,000 are reasonable given the number of attendances, and the materials produced in respect of this matter.
39Order to go as per the draft order signed by me.
Thorburn J.
Date: May 24, 2016