CITATION: Buckingham v. Branigan, 2017 ONSC 5947
COURT FILE NO.: DC-16-754
DATE: 2017-10-05
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: MELISSA BUCKINGHAM v. JAMES BRANIGAN
BEFORE: N. Spies J., Michael G. Quigley J., M.G. Ellies J.
COUNSEL: Appellant – Self-Represented Respondent – G. Falletta
HEARD: October 3, 2017, at Hamilton
E N D O R S E M E N T
By The Court:
[1] The appellant, Melissa Buckingham, appeals an eviction order of the Landlord and Tenant Board (the "Board") dated September 15, 2016, and a review decision upholding that eviction, dated September 23, 2016. The appellant requests that both decisions be set aside and that the matter be remitted to the Board for a new hearing.
[2] The appellant raises two main concerns: first, that the Board did not consider a previous order by member Petar Guzina dated November 15, 2015 (the “first order”) relevant to the issue of the appellant's eviction for rent arrears; and second, that the appellant was denied the opportunity to participate in the hearing. The appellant also brings a motion to submit further evidence.
[3] In the first order, the Board ordered that the landlord shall pay to the tenants a rent abatement of $3,360, as well as the costs of the application. The Board also ordered that the landlord ensure that all items in the City of Hamilton Work Orders for the property be completed by December 31, 2015, failing which the appellant could complete the repairs and deduct the costs from her rent. The landlord was to pay the total of $3,405 to the tenant by November 24, 2015. That amount was to bear interest.
[4] This appeal relates to the second order of the Board rendered by Member Laws on September 15, 2016 in which she determined that the appellant should be evicted from the residential tenancy she was occupying with her five children. It also relates to the review decision dated September 23, 2016, rendered by Member Van Delft, which upheld the eviction ordered by Member Laws.
[5] The appellant was not present at the Board hearing on September 15, 2016 when Member Laws rendered her decision. She claimed that certain medical emergencies relating to her children, several of whom are acknowledged to be disabled, prevented her from attending the hearing that day. She attended at the Board offices that afternoon with a written request for an adjournment. It appears that request was presented to staff before the Member commenced the hearing, but the note did not actually come to the Member’s attention until after the hearing where the appellant had not been in attendance. However, it was received before the Member made her decision. The appellant’s request also referred to the first order. Nonetheless, the original Board found no reason to grant an adjournment under the circumstances and did not refer to the first order.
[6] The appellant later filed a request for reconsideration and provided written notes from medical caregivers explaining her absence and her request for adjournment. However, Member Van Delft found no reason to change that decision on reconsideration.
[7] While this may have been a legal issue in and of itself, and indeed the appellant claims that her rights to natural justice and to speak at the hearing were violated in Member Laws’ reasons for her decision to evict the appellant, the more important deficiency is that the Member provides no mention of the existence of the first order and the impact that may have had on the amount of rent owing by the appellant, and consequently on the landlord’s right to have her evicted. When the appellant requested reconsideration of that decision, as noted, it was declined. The appellant then commenced this appeal to Divisional Court.
[8] However, matters relating to this rental property have not been standing still since that time. Indeed a further Board hearing was held and a decision issued on January 13, 2017. In that application, then landlord and owner of the property, James Branigan, sought to evict the appellant on the basis that he wished to move in and occupy that residence himself. In the course of that hearing, Member Van Delft had extensive evidence before her, some of which she found to be incredible and unreliable, relating to the expenses that had allegedly been incurred by the appellant to repair the state of this property. In the end, she accepted the landlord's claim to oust the tenant in order to permit the landlord and his family to move into the property. She terminated the tenancy between the landlord and the tenants as of March 31, 2017 and ordered the tenants to move out of the rental unit on or before March 31, 2017. This decision itself was under appeal to the Divisional Court (File 17-799), but that appeal was struck on August 9, 2017 by the Registrar for failure of the appellant to perfect the appeal on a timely basis.
[9] Further, however, subsequent to that decision, Mr. Branigan then sold the property to the new owner, Danial Merriam. He is the new landlord. Nevertheless, that January 13, 2017 order does not assist him and the decision to strike that appeal does not resolve these matters because Mr. Branigan is no longer the owner and it is now Mr. Merriam who wishes to move into personal occupancy of the property. It is also Mr. Merriam who wishes to have a final Board adjudication of the rental arrears owed by the appellant.
[10] Mr. Merriam has himself now brought yet another application before the Board to have the appellant and her family evicted in order to permit him to occupy the home as his own residence. That application, under file number SOL-8446-17, was originally scheduled to be heard on Thursday, September 21 but has now been adjourned to November 2, 2017 at 9:30 AM.
[11] Apart from the legalities or proprieties of the conduct of Member Laws in proceeding with the hearing on September 15, 2016 in the absence of the appellant, we are all of the view that she committed reversible legal error by failing to take into account the abatement and other terms in the first order. As such, and given that Mr. Branigan chose not to inform the Board at that time of the existence of the first order or of the work orders that were outstanding against the property, we find that the September 15 decision cannot stand and so we allow the appeal on consent of the parties, who agree that it must be referred back to the Board for a rehearing taking account of the evidence which was not taken into consideration when that decision was originally released. This will be a fresh hearing and the parties will be able to advance all of the arguments raised in this appeal.
[12] We recognize, however, that referring this matter back to the Board could create an endless series of referrals for reconsideration or new hearings followed by appeals to this Court. That is plainly not our intention. Equally, however, we are not equipped to engage in the mathematical calculations that would be required to determine the effect of the rent abatement and what if any amounts of accrued unpaid rent are presently due to the landlord, either Mr. Branigan, or his successor Mr. Merriam, from the appellant and her partner. Those are matters that lie within the expertise of the Board and it is critical from our perspective that the Board should make determinations of the amount of rental arrears, if any, that remain owing by the appellant to either the former owner and landlord, or to the new owner, in addition to ruling on the new landlord’s request to evict.
[13] To ensure that this result takes place, and that all outstanding matters between these parties are resolved at the same time, so that if there is to be a further appeal to this Court it will be on a consolidated basis taking account of all disputed issues, on consent of the parties we refer this matter back to the Board for a rehearing of this matter. We also order that this re-hearing be heard at the same time as the hearing scheduled for November 2, 2017, to address the matters arising out of the consent granting of this appeal. In the event that the appellant seeks to and is successful in reinstating her appeal relative to the January 13 order, that matter shall be heard with any appeals of the orders resulting from the November 2 hearing and re-hearing of these matters. Mr. Merriam provided the appellant before us today with the listing of documents she is required to produce on November 2, 2017.
[14] Finally, in light of several failures of the appellant to attend hearings when they were scheduled, we asked her if she was going to be available that day. She assured us that absent a major calamity, she would attend. While it may not be necessary, to ensure that Ms. Buckingham does attend the hearing on November 2, that hearing shall be peremptory to all parties.
Spies J.
I agree
Quigley J.
I agree
Ellies J.
Released: October 5, 2017