Court File and Parties
CITATION: Trust Construction Corporation v. McKie, 2017 ONSC 4702
DIVISIONAL COURT FILE NO.: 504/16
LTB NO.: TNL-84758-16-SA DATE: 20170802
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, SACHS and NORDHEIMER JJ.
BETWEEN:
TRUST CONSTRUCTION CORPORATION
David S. Strashin, for the Landlord/Respondent in Appeal
Landlord/Respondent
– and –
DOLORITA MCKIE
Dolorita McKie, acting in person
Tenant/Appellant
HEARD at Toronto: August 2, 2017
Oral Reasons for Judgment
NORDHEIMER J. (orally)
[1] Dolorita McKie, the tenant, appeals from an order of the Landlord and Tenant Board dated September 28, 2016 that dismissed her application to set aside an ex parte order that the Landlord had obtained that terminated the tenancy, evicted the tenant and ordered that arrears of rent be paid. This ex parte order arose out of an earlier consent order of the Board that the tenant was found to have breached.
[2] An appeal lies to the Divisional Court from an order of the Board restricted, though, to a question of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210 (the “Act”).
[3] The earlier consent order was agreed to by the tenant when she was represented by counsel. It arose out of arrears of rent that the tenant owed the landlord. There was a schedule agreed to for the payment of those arrears. There was also a requirement that the tenant pay rent going forward as it fell due.
[4] There is no dispute that the tenant failed to pay monies due in July or in August or in September, 2016. She acknowledges that she did not do so. While the tenant says that she did not have the necessary funds to pay the rent, she also defends the nonpayment of rent on the basis that she wished to revisit the contents of the earlier consent order. The tenant contends that she had, in fact, overpaid the rent due and that the consent order was in error in ordering her to pay the amounts that it did.
[5] The tenant has a history of defaults and she has attempted to revisit the earlier consent order on more than one occasion. The Board properly found that the tenant could not, at this late stage, attempt to revisit an earlier order of the Board, especially one that was made on consent. The tenant had earlier asked for a review of the consent order directly after it was granted and that request was dismissed. Some months later, the tenant defaulted again and again sought to have the consent order revisited and again that request was dismissed. Under the order in issue now, the Board ruled that there was no basis for any further review of the consent order.
[6] There is no basis for this court to interfere with the Board’s decision. Among other reasons, it does not raise a question of law. The tenant’s reliance on s. 82 of the Act is misplaced. Section 82 does not permit the re-litigation of an issue that has been earlier determined by the Board. That is the purpose of the review power referred to in s. 209 and those review powers were exercised and exhausted. It is also a matter of concern that parties ought not to be easily able to revisit orders that have been made on consent. The effective resolution of matters that come before the Board will be greatly impaired if parties can continually seek to revisit issues that they have earlier agreed to resolve.
[7] The tenant also argues that she was not accorded procedural fairness in the hearing before the Board but that submission finds no support in the record.
[8] The appeal is dismissed.
THEN J.
[9] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons delivered by Nordheimer J. In the unique circumstances of this case where the tenant has medical disability, financial issues and familial responsibility for three children, even a minimal order as to costs will constitute a hardship. Accordingly, there will be no order as to costs. Approval of the appellant as to the order is dispensed with.”
___________________________ NORDHEIMER J.
I agree
THEN J.
I agree
SACHS J.
Date of Reasons for Judgment: August 2, 2017
Date of Release: August 3, 2017
CITATION: Trust Construction Corporation v. McKie, 2017 ONSC 4702
DIVISIONAL COURT FILE NO.: 504/16
LTB NO.: TNL-84758-16-SA DATE: 20170802
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, SACHS and NORDHEIMER JJ.
BETWEEN:
TRUST CONSTRUCTION CORPORATION
Landlord/Respondent
– and –
DOLORITA MCKIE
Tenant/Appellant
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: August 2, 2017
Date of Release: August 3, 2017