DIVISIONAL COURT FILE NO.: 150/16
LTB File No. TSL-68679-15 DATE: 20160603
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
TOM CHUONG
Moving Party Landlord
(Respondent in Appeal)
– and –
GREGORY GOODRIDGE
Responding Tenant
(Appellant in Appeal)
Peter D. Woloshyn, for the Moving Party Landlord (Respondent in Appeal)
Gregory Goodridge, In Person
HEARD at Toronto: June 3, 2016
L.A. PATTILLO J. (ORALLY)
Overview
1This is a motion by the Landlord, Tom Chuong, seeking, among other things, an order quashing the Tenant, Greg Goodridge's appeal from the order of the Landlord and Tenant Board (the "Board") dated March 2, 2016, evicting the Tenant from the rented premises at #6, 280 Woodfield Road, Toronto; an order directing that the stay of the Order be lifted; and an order directing the Sheriff at the City of Toronto at the first available opportunity to enforce the Order and evict the Tenant from the rented premises.
Background
2The Tenant has not paid rent for the rented premises from November, 2015 to May, 2016 in the amount $760 per month. The amount owing up to May, 2016 is $5,490 which includes a $170 filing fee. No rent has been paid for June.
3Because of the Tenant's failure to pay rent, the Landlord served a Notice of Termination effective November 20, 2015. The Landlord next filed an application with the Board to evict the Tenant. As a result of the Landlord mistaking the spelling of the Tenant's name on the application to rent the premises, the rental agreement named Greg Goodricho as the Tenant and was signed by the Tenant that way. As a result, the application was commenced against Greg Goodricho. The Board set a hearing of the Landlord's application for January 4, 2016.
4On January 4, 2016, the Landlord and the Tenant attended at the Board. The Tenant requested an adjournment to obtain legal advice. As a result, the Board rescheduled the hearing for February 29, 2016 at 9:30 a.m. The Tenant says he raised the issue of the misnomer of his name before the Board. The Landlord says he did not. I accept that he did not for the simple reason that if he had, the Board would have corrected it.
5On February 29, 2016, the Landlord attended at the Board. The Tenant did not attend. On March 2, 2016, the Board issued an order to evict the Tenant from the rented premises unless by March 13, 2016, he paid the Landlord $3,970 which was the rent due from November 2015 to March 2016, plus the $170 application filing fee of the Board. The Board's reasons make findings of fact of failure to pay rent and consider whether relief from eviction should be granted pursuant to s. 83(1) of the Residential Tenancies Act (the Act). In calculating the rent due, the Board took into account the rent deposit paid by the Tenant and the interest thereon.
6The Tenant failed to pay any of the monies directed by the Board by March 13, 2016 and has failed to pay any money since.
7At around the same time or earlier, the Tenant filed an application with the Board alleging the Landlord interfered with the Tenant's reasonable enjoyment of the rental premises. The Tenant’s application was in his correct name. The application was to be heard on January 20, 2016 but on that date the Tenant requested an adjournment and the hearing was rescheduled to March 3, 2016. On March 3, 2016, the Landlord again attended at the Board but the Tenant did not appear again and, accordingly the Board declared the application abandoned.
8By Notice of Appeal dated March 28, 2016, the Tenant appealed the Board's February 29, 2016 Order. The appeal gives rise to an automatic stay of the eviction order. The Landlord disputes that he was ever served with the Notice of Appeal or other accompanying documents. The Landlord says that he learned of the appeal after being advised by the sheriff that the eviction order could not be executed.
Analysis
9The Notice of Appeal sets forth four grounds of appeal: "1. a factual error in law; 2. 5.04 (2) rules of civil procedure rule five; 3. Residential tenancy act 8.6 improperly filed applications; and 4. grounds the appellant may put forth and this Honorable Court may accept."
10Section 210 of the Act provides for an appeal to this court on a question of law.
11Ground 1 deals with fact or at best mixed fact and law which are not appealable under Section 210.
12Ground 2 refers to Rule 5.04(2) of the Rules of Civil Procedure which deals with the adding, deleting or substituting parties or correcting names. It does not apply to the Board.
13Ground 3 refers to 8.6 of the Act but there is no such section. Section 8.6 of the Board's Rules of Practice deals with the staff pointing out errors to applicants and giving them an opportunity to correct them. It is not applicable.
14Ground 4 is just a general ground and contains no specifics.
15The Tenant has filed no material in response to the Landlord's motion. He submits before me today that his appeal is based only on the lack of jurisdiction of the Board because of the misnomer of his name in the application. In my view, the issue of the misnomer raises no question of law nor does it raise a jurisdictional issue. The Tenant did not raise any issue of the misnomer before the Board when he first appeared on January 4, 2016 and asked for an adjournment. In such circumstances, the Board was clearly able to proceed. Further, the Tenant commenced an application against the Landlord using his correct name alleging Landlord interference. There was no issue of mistake or confusion on the Tenant’s part. The issue of the misnomer was in my view a procedural matter before the Board. Nor does it give rise to any issues of procedural unfairness. The Tenant's rights were never jeopardized by the misnomer. There is no issue of law that arises. See Houle v. Hayes, 2010 ONSC 924 (S.C.J.).
16For the above reasons therefore, I find the Tenant's appeal does not raise a question of law. Rather, it raises factual or procedural matters which this court has no jurisdiction to deal with.
17Further, on reviewing the Board's reasons for the Order, I am unable to find any error of law. The Order is based on the Board's clear findings that the Tenant failed to pay rent. The Board concluded in the circumstances, it would be unfair to grant relief from eviction pursuant to s. 83(2) of the Act as it is required to do. Finally, the Board gave the Tenant a reasonable time to pay the rent owing to avoid eviction.
18At the end of his submissions, the Tenant submitted to me today that he intended to get a lawyer as the issue had become too complicated. The time for seeking legal advice has passed. The Tenant's course of conduct throughout has been one of delay. The Tenant has had more than enough time to seek legal advice if indeed that’s really what he wanted to do.
19Accordingly, for the above reasons, I am satisfied that the Tenant's appeal is manifestly devoid of merit and should be dismissed in its entirety.
20Order to go, quashing the appeal, lifting the stay and directing the sheriff to enforce the Board's eviction order against the Tenant at the first available opportunity.
COSTS
Costs
21I have endorsed the motion record of the moving respondent Tom Chuong as follows: “For reasons given orally in court, motion allowed; order to go quashing the appeal, lifting the stay and directing the sheriff to enforce the Board’s eviction order of March 2, 2016 against the Tenant at the first available opportunity, not before June 10, 2016. Costs to the Landlord fixed at $1,000 in total. Order signed by me.”
___________________________ L.A. PATTILLO J.
Date of Reasons for Judgment: June 3, 2016
Date of Release: June 8, 2016
CITATION: Chuong v. Goodridge, 2016 ONSC 3742
DIVISIONAL COURT FILE NO.: 150/16
LTB File No. TSL-68679-15 DATE: 20160603
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
TOM CHUONG
Moving Party Landlord
(Respondent in Appeal)
– and –
GREGORY GOODRIDGE
Responding Tenant
(Appellant in Appeal
ORAL REASONS FOR JUDGMENT
l.A. pattillo J.
Date of Reasons for Judgment: June 3, 2016
Date of Release: June 8, 2016