Editor’s note: Corrigendum released on August 22, 2016. Original judgment has been corrected with text of corrigendum appended.
CITATION: Shields v. Lancelotte, 2016 ONSC 4433
DIVISIONAL COURT FILE NO.: 188/16
LANDLORD AND TENANT BOARD FILE NO.: TEL-63917-15
DATE: 20160706
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Alan Shields and LLoy-ann shields, Landlords/respondents
AND:
Chris Lancelotte and Nina willis (aka nay willis, nay lancelotte, Tenants/ appellants
BEFORE: C. Horkins J.
COUNSEL: David Strashin, for the Landlords/respondents
Nina Willis and Chris Lancelotte, acting in person for Tenants/appellants
HEARD at Toronto: June 29, 2016
ENDORSEMENT
introduction
[1] The appellants Chris Lancelotte and Nina Willis (aka Nay Willis, Nay Lancellote) (“the tenants”) occupy rental premises located at 77 Mossbank Drive in Scarborough Ontario (“the premises”).
[2] The respondents Alan Shields and Lloy-Ann Shields (“landlords”) bring this motion to quash the tenant’s appeal from the Order of the Landlord and Tenant Board ("the Board") dated March 23, 2016.
[3] The landlords state the tenants’ appeal is devoid of merit and is brought solely to permit them to live rent free in the premises and to delay their eviction. As a result, the landlords bring this motion for an order quashing or dismissing the appeal under ss. 134(3) and 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
factual background
[4] As a result of the tenants’ failure to pay monthly rent of $1,650 to the landlords, the landlords initiated an application before the Board seeking an order terminating the tenancy for arrears of rent. They also sought an order evicting the tenants. The tenants had not paid rent from May 1, 2015 to December 31, 2015.
[5] The hearing before the Board was scheduled for November 25, 2015. At the start of the hearing, the tenants requested an adjournment to retain counsel. The Board granted their request subject to conditions that were set out in an interim order. Specifically, the Board ordered the tenants to pay the landlords $1,650 as a credit against past rent that was owed. This was to be paid by December 16, 2015. As well, the Board ordered the tenants to pay the monthly rent to the landlords as it became due. In bold print the order included the following term:
If a party does not comply, the [Board] may refuse to accept or consider the party’s evidence and submissions. [Emphasis in original.]
[6] The Board adjourned the hearing to March 16, 2016. When the hearing resumed, the Board found that the tenants had not complied with the interim order because they had not paid rent for the months of January, February and March 2016.
[7] As a result of the tenants’ non-compliance with the interim order, the bolded term in the interim order was triggered. The Board ruled that no further evidence would be accepted from the tenants, except with respect to s. 83 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. As the Board stated, “[t]o do otherwise would constitute an abuse of process from the landlords perspective”.
[8] Section 83 deals with an application to evict a tenant and states:
- (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[9] The Board permitted the tenants to give evidence concerning the request for eviction. The tenants testified about two points. First, they said they were having difficulty finding suitable alternative accommodation because of the “female tenant’s multiple appearances in the newspapers and the labels that have been placed on her”. Second, the tenants said that they have a relative living with them who has mental health issues. The Board noted that there was no evidence to verify the second point.
[10] The Board weighed this evidence against the circumstances of the landlords. The landlords are a retired couple who partially depend on the rental income and the “ongoing ordeal over rent is having a profound impact on them.”
[11] The Board considered all of the circumstances and decided that it would not be unfair to postpone the eviction until April 15, 2016 pursuant to s. 83(1)(b) of the Act. The Board explained the postponement of the eviction as follows (at p. 3):
I have picked this date to give the Tenants more time than would normally be given on an order such as this but hopefully not enough time that might cause the Landlords significant financial hardship.
[12] The Board made several orders. The tenancy was terminated and the tenants were ordered to move out of the premises by April 15, 2016. The Sheriff was directed to give vacant possession of the premises to the landlords on or after April 16, 2016.
[13] The Board found that the tenants owed the landlords $8,770 in rent through to March 31, 2016, inclusive of the Board’s filing fee of $170.
[14] The tenants were ordered to pay a per diem fee of $54.25 for use of the premises starting March 23, 2016 through to the date of eviction on April 15, 2016.
[15] The Board ordered that the tenants could void the order on or before April 15, 2016 if the tenants paid $10,420 in rent arrears for the period May 1, 2015 to April 30 2016, less $3,300 that the tenants had paid, plus the Board’s filing fee. If the monies were paid on or before March 31, 2016, the amount owing was $8,770.
[16] The tenants did not comply with any part of the Board’s order. Instead, they filed a notice of appeal on April 20, 2016. This automatically granted them a stay of the Board’s eviction order.
[17] The tenants continue to reside in the premises. As of June 30, 2016, the tenants owed the landlords rent arrears of $13,720.
[18] The notice of appeal sets out three grounds of appeal:
The Board erred in terminating the tenancy and evicting the tenants “by failing to apply the appropriate procedure which prejudiced a party (e.g.) Failing to ensure that a party had a proper opportunity to participate in a Hearing or to comply with the rules of natural justice in some other way.”
The Board “erred in law, but the [Board] will not normally review a reasonable interpretation of the Statute by a Member, by doing so the Tenants … are seeking to have case heard by the other Courts which don’t share the same views”.
An error of fact that is “material to the decision and which was clearly an unreasonable finding considering the evidence which was before the [Board].”
[19] The date for the landlords’ motion to quash the appeal was scheduled to accommodate the tenants. However, the tenants did not file any responding material. There is no affidavit explaining what steps, if any, the tenants have taken to perfect their appeal. The tenant, Ms. Willis, gave the court a copy of a form showing that she has ordered the transcript from the hearing before the Board. She advised the court that she has paid for the transcript. However, she then conceded that she has only paid a deposit. Either way there is no evidence of what, if anything, the tenants have paid to order the transcript.
the legal framework
[20] An appeal lies to the Divisional Court from a decision of the Board, but only on a question of law (s. 210(1) of the Residential Tenancies Act).
[21] This Court has jurisdiction to quash an appeal under s. 134 of the Courts of Justice Act. 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. (See Oatway v. Canada (Wheat Board), [1945] S.C.R. 204; Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 13 O.R. (2d) 430 (C.A.); Hornstein v. Royal Bank, 2007 CarswellOnt 2413 (Ont. Div. Ct.).) This court also has the power to dismiss an appeal as an abuse of process under s. 140(5) of the Courts of Justice Act.
analysis and conclusion
[22] For the reasons that follow, I find that the tenants’ appeal to the Divisional Court should be quashed.
[23] There are three grounds of appeal. Each lacks substance and only one is framed as an error of law.
[24] The focus of Ground #1 is an allegation that the Board did not “comply with the rules of natural justice”. The notice of appeal alleges a failure to “apply the appropriate procedure” and a failure to ensure that “a party” had a proper opportunity to participate.
[25] The tenants do not identify a procedure that they allege resulted in a denial of natural justice. The reasons of the Board reveal that the Board gave the tenants an opportunity to participate. The tenants requested an adjournment and the Board granted the adjournment on terms. This interim order was clear and fair. When the hearing commenced, the tenants’ right to participate was limited because they had not complied with any part the interim order. The tenants’ allegation that they were denied natural justice is manifestly devoid of merit.
[26] Ground #2 is framed as a question of law. Simply naming a ground of appeal as a question of law does not make it so. It is impossible to decipher what the error of law is alleged. In essence, these tenants do not like the outcome of the hearing before the Board and are seeking a rehearing. This is not an error of law.
[27] Ground #3 is an alleged error of fact. Since there is only a right to appeal on a question of law, this ground is struck.
[28] This is an appeal that is manifestly devoid of merit and an abuse of the court’s process. The tenants owe the landlords rental arrears and the tenants have not paid. The tenants have had ample opportunity to pay the arrears and have not done so.
[29] As Ms. Willis stated before the Board and this court, she has had “multiple appearances in the newspapers” and was convicted in 2015 for defrauding two former landlords. She has appealed many Board orders to the Divisional Court that have been quashed.
[30] The landlord Ms. Shields states in her affidavit, that the tenant Ms. Willis has a well formulated modus operandi that involves victimizing small landlords by failing to pay rent and then utilizing the process before the Board and the court, to remain in possession of the rental premises for as long as possible without paying rent. I find that this is exactly what the tenants have done to the landlords in this case.
[31] In summary, this appeal is manifestly devoid of merit. It is also an abuse of process because it has been brought solely for the purpose of delay to enable the tenants to remain in the premises without paying rent. Quashing this appeal is justified (see Solomon v. Levy, 2015 ONSC 2556, at paras. 31-36; Houle v. Hayes, 2010 ONSC 924, at paras. 16-17; Lingbaoah v. Abagi, 2016 ONSC 3474).
orders
[32] The appellants appeal is quashed.
[33] The appellants shall pay the respondents costs fixed at $2,500 inclusive of disbursements and HST.
C. Horkins J.
Date: July 6, 2016
CITATION: Shields v. Lancelotte, 2016 ONSC 4433
DIVISIONAL COURT FILE NO.: 188/16
LANDLORD AND TENANT BOARD FILE NO.: TEL-63917-15
DATE: 20160822
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Alan Shields and LLoy-ann shields, Landlords/respondents
AND:
Chris Lancelotte and Nina willis (aka nay willis, nay lancelotte, Tenants/ appellants
BEFORE: C. Horkins J.
COUNSEL: David Strashin, for the Landlords/respondents
Nina Willis and Chris Lancelotte, acting in person for Tenants/appellants
HEARD at Toronto: June 29, 2016
ERRATUM OF ENDORSEMENT RELEASED JULY 6, 2016
[34] The following is inserted underneath the “DIVISIONAL COURT FILE NO.: 188/16” on the top right hand corner of the first page of the original endorsement issued on July 6, 2016
LANDLORD AND TENANT BOARD FILE NO.: TEL-63917-15
[35] All other contents in the endorsement remain unchanged.
C. Horkins J.
Date: August 22, 2016