CITATION: Billion v. Vaillancourt, 2016 ONSC 5820
DIVISIONAL COURT FILE NO.: DC-14-733 DATE: 20160916
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
- Molloy, C. Horkins, J.P.R. Howard, JJ.
BETWEEN:
Albert Alexander Billion
Applicant/Respondent on Appeal
– and –
Edward Vaillancourt
Respondent/Appellant
I. Greenway, for the Respondent
B. Carmichael, for the Appellant
B. Blumenthal, for the Landlord and Tenant Board
HEARD at Oshawa: September 16, 2016
THE COURT
INTRODUCTION
[1] Edward Vaillancourt (“the landlord”) appeals from the decision of the Landlord and Tenant Board Member Claudette Leslie, dated October 9, 2014 ordering the landlord to pay $25,000.00 to Albert Billion (“the tenant”) as compensation for the property of the tenant, which the landlord threw in the garbage after evicting the tenant.
[2] The Member found that the actions of the landlord constituted an abuse of process of the board and given the value of the tenant’s property awarded the maximum amount of compensation allowed under the Residential Tenancies Act, 2006 S.O.C. 17 (“the Act”). The landlord sought a review of the decision, which was dismissed by Vice-Chair Fellman on October 30, 2014.
[3] The landlord points out, correctly, that he complied with all of the technical requirements of the Act with respect to: service of a Notice of Eviction for non-payment of rent; service of a Notice of Hearing and the Eviction Order that issued from that hearing; arranging with the sheriff for posting of a Notice to Vacate; enforcing the Eviction Order; and waiting 72 hours until disposing of the tenant’s property. The landlord therefore argues that there was no basis upon which the Member could order him to pay compensation to the tenant.
BACKGROUND FACTS
[4] The tenant and the landlord entered into a Tenancy Agreement in July, 2009. The tenant’s parents, Albert and Marianne Billion, co-signed the Tenancy Agreement on June 30, 2009. An employee of the landlord, his administrative assistant, witnessed the tenant’s parents’ signatures on June 30, 2009 for the Tenancy Agreement.
[5] The tenant was incarcerated from July 22, 2010 to November 14, 2010 for breaching terms of a recognizance.
[6] The tenant had asked his parents to take care of his rent and his parents made efforts to pay rent to the landlord and to his assistant in August and September, 2010. The tenant’s parents testified that they made the landlord aware of their son’s incarceration and their willingness to pay the rent for the unit. They further testified that they left a cheque for the August rent in the landlord’s mailbox and made repeated phone calls to the landlord about this. When the landlord failed to return their calls, they checked their bank records and learned that the cheque had not been cashed. In September they went to the landlord’s plumbing business office and attempted to pay the August and September rents in cash. However, the landlord’s office assistant refused to accept the payment. Although the tenant’s parents left their contact information with the landlord’s assistant and in telephone messages to the landlord, and although they were guarantors on the lease with their contact information also on the lease, the landlord took no steps to contact them. The landlord denied receiving the cheque or the telephone messages or any information from his office assistant. He also denied knowing that the tenant had been incarcerated.
ADEQUACY OF THE RECORD
[7] The Landlord and Tenant Board tape records its’ proceedings. The quality of these recordings has often been poor, as has been commented on in many Divisional Court appeal decisions. In this case, the recording system malfunctioned badly such that the only voice recorded was that of the Member. There is no statutory or common law requirement for a board to produce a recording of its proceedings capable of generating a full transcript. However, if the quality of the record is sufficiently poor that proper appellate review is compromised, this can be the basis for the reviewing court to order a new hearing. It is regrettable that there is no proper audio recording of this particular hearing. However, in this case the ability of this court to review the decision is not undermined. In her reasons for decision, the Member summarized the evidence of all of the witnesses and made clear findings of fact based on that evidence. In the circumstances, full appellate review is possible, particularly given the fact that an appeal lies only on a question of law.
JURISDICTION AND STANDARD OF REVIEW
[8] An appeal lies to this court from the decision of the Landlord and Tenant Board pursuant to s. 210 of the Act, but only on a question of law. What can constitute an abuse of process under the Act, and what can be a positive obligation to contact a tenant before disposing of property, may be characterized as questions of law. However, they are issues that relate directly to the core expertise of the Board, involving the duties of a landlord to a tenant and circumstances in which the Board may consider that its own process is being abused even where the letter of the law is being complied with. As such, the standard of review for this decision is that of reasonableness: First Ontario Realty Corp v. Deng, 2011 ONCA 54, 330 DLR(4th) 461; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654.
ANALYSIS OF DECISION UNDER REVIEW
[9] The Member rejected the evidence of the landlord as lacking in credibility. The Member noted that the testimony of the tenant’s parents as to the phone calls they made to the landlord was corroborated by telephone records. She found as fact that the landlord refused to communicate with the tenant’s parents and refused the payment of rent. She found it likely that the landlord’s assistant told the landlord that the tenant’s parents were trying to pay the tenant’s rent because the tenant was in jail. She held that the landlord’s assistant was unlikely to have refused to accept payment unless she had been instructed to do so by the landlord. She held that the landlord, at the very least, was wilfully blind to the tenant’s whereabouts and wilfully blind to the rent payments tendered by the tenant’s parents. These are all findings of fact that were open to the Member on the record before her and which are not subject to appeal in this court.
[10] Based on those facts, the Member found that the manner in which the landlord proceeded to obtain an Eviction Order without any attempt to notify the tenant’s parents was an abuse of process. This is a conclusion that was open to the Member in light of the factual findings she had made. There is no error in law in finding that such conduct can amount to an abuse of process. Even on a correctness standard, we would uphold that conclusion. However, the standard is reasonableness and it is easily met.
[11] Although the landlord testified that the property he found in the tenant’s apartment was junk, the landlord did bring in Ronald Branton (described as “an entrepreneur, percussionist and recorded music producer”) to do an appraisal of the property. Based on the seven or eight items he looked at, Mr. Branton said the tenant’s property was worth well over $10,000.00. On the tenant’s evidence, the monetary value of his collection was over $70,000.00 and there were also many items of great sentimental value. The Member held that in these circumstances the landlord had an obligation to notify the tenant’s parents before simply throwing away the tenant’s property, particularly given his knowledge that the tenant’s parents had been trying to reach him and that he had contact information for them.
[12] It is not clear that this finding is a question of law. It seems to us that it is at best a question of mixed fact and law and that any legal principle is inextricably bound up with facts. However, even if there is an extricable question of law (which we believe there is not) and even if the standard of review is correctness (which we say it is not) we would uphold it.
[13] This decision must be viewed in light of its underlying and unique facts. In Mputu v. Wright, [2004] O.J. No. 6055 (S.C.J.) Wilson J. held at paragraph 41 that: “Landlords that fail to act reasonably in the circumstances face risk of liability.” She further held at paragraph 39 that circumstances of the case before her that, “reasonable positive steps should be taken to make arrangements for the tenants to remove their belongings.” While the Member in this case appears to have misquoted Mputu somewhat, her decision is fully consistent with the principles established in that case. A landlord must act reasonably. A landlord cannot simply ignore attempts on behalf of the tenant to contact him or turn a blind eye to what he knows is not simple abandonment of property. The landlord’s conduct in this case was egregious and easily meets any test for abuse of process. Such a finding is also supported by the case law, see Mputu v. Wright; Cruickshank v. Mobal Khan Enterprises, [2002] O.J. No. 3355 (S.C.J.); Maturell v. Dunelm Holdings [2000] O.J. No. 1880 (S.C.J.).
[14] Accordingly, we find that to the extent any findings made by the Member were questions of law, such findings were reasonable. Indeed, we find them to be correct and amply supported by the evidence.
CONCLUSION
[15] Accordingly, the appeal is dismissed. The respondent, Albert Billion, shall have his costs fixed at $4,000.00 payable by the appellant, Vaillancourt, forthwith.
___________________________ A. Molloy J.
- Horkins J.
J.P.R. Howard J.
Date of Reasons for Judgment: September 16, 2016
Date of Release: September 16, 2016
CITATION: Billion v. Vaillancourt, 2016 ONSC 5820
DIVISIONAL COURT FILE NO.: DC-14-733 DATE: 20160916
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Molloy, C. Horkins, Howard, JJ.
BETWEEN:
Albert Alexander Billion
Respondent
– and –
Edward Vaillancourt
Appellant
ORAL REASONS FOR JUDGMENT
THE COURT
Date of Reasons for Judgment: September 16, 2016
Date of Release: September 16, 2016