Carpeit Limited Partnership v. Graff, 2016 ONSC 6977

DAMBROT J. (Orally)

1Marie Graff appeals from a decision of the Landlord and Tenant Board dated September 8, 2015, ordering the termination of her tenancy and her eviction on account of her non-payment of arrears. At the hearing, she explained the reasons for the arrears, and expressed an intention to pay them as soon as she was able to.

2Near the end of the hearing, the member said that she accepted that the appellant was sincere in wanting to save the tenancy, and indicated that she would impose something more than the “standard” eleven day order for eviction. The effect of such an order is that if a tenant pays the arrears within the eleven day period, or whatever longer period is ordered, the tenancy is not terminated and the eviction order becomes void.

3Despite having told the appellant that she would impose something more than the “standard” eleven day order for eviction, the member released a written order a few days after the hearing in which she did in fact impose a standard order.

4The appellant requested a review of the order. Her request was denied by another member of the Board on September 22, 2015. This member did not find that the imposition of an eleven day order was a serious error.

5The appellant then brought this appeal to the Divisional Court. By sometime in March, 2016, she had paid the arrears in full and the order for termination of her tenancy and eviction became void.

6Ultimately, notice was given by the Registrar to Ms. Graff, pursuant to r. 2.1.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the court was considering making an order dismissing her appeal on the basis that the proceeding appeared to be frivolous, vexatious or otherwise an abuse of the process of the court, specifically because it was moot.

7On September 27, 2016, Ms. Graff filed a short response, in which she asserted that she should be entitled to the costs of her appeal.

8On October 3, 2016, Nordheimer J. stated that he could not conclude that the appellant’s desire to make submissions on costs was frivolous, vexatious or an abuse of the court’s process. As a result, he directed the listing of this appeal, but ordered that “the only issue to be addressed before this court on this matter is the proper disposition of the costs of the appeal. No other issues may be raised before the court in respect to this file.” (See 2016 ONSC 6173.)

9Upon considering the history of this matter, it seems to us that the landlord acted precipitously in bringing its application for eviction when it did, given that the tenant was only 38 days in arrears at the time, that she had reached out to the landlord advising it that there had been a dissolution of her business of 12 years, that she had broken her arm, and only had intermittent work. It was particularly aggressive to bring the application at that time in view of the fact that, on July 17, she provided a letter to the landlord in which she explained that while she did not have rent for July, she had secured work for the beginning of August, and requested a discussion of a payment plan for arrears. She followed up with an email on July 29, but received no response.

10In addition, we note that the application for eviction was filed some 2 ½ weeks after the tenant and a group of other tenants filed a T2 application with the Board in respect of a number of maintenance issues and loss of enjoyment of their property.

11We are also of the view that it was unreasonable for the member not to have given the tenant more than 11 days to pay her arrears or face eviction.

12In view of the foregoing, the appellant understandably feels aggrieved. Nevertheless, the landlord was entitled to bring the application for eviction when it did, the member made no error of law in making the standard order for eviction, and the appeal itself has been dismissed as moot. Costs usually follow the event, and there is no basis here to depart from this rule and to award costs in this case.

13Accordingly the appeal is dismissed.

COSTS

14I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed without costs.”

___________________________ DAMBROT J.

I agree