CITATION: Peel Housing Corporation o/a Peel Living v. Sharpe, 2017 ONSC 6303
DIVISIONAL COURT FILE NO.: DC 16-0107-01
LTB FILE NO.: CEL-59052-16 DATE: 20171020
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Gordon RSJ, Pattillo, Fitzpatrick JJ.
BETWEEN:
PEEL HOUSING CORPORATION O/A PEEL LIVING
Respondent
(Landlord)
– and –
ELAINE SHARPE
Appellant
(Tenant)
M. Zarnett, for the Respondent
V. Arulsundaram, for the Appellant
HEARD at Brampton: October 20, 2017
Fitzpatrick, J. (Orally)
[1] Elaine Sharpe appeals a decision of the Landlord and Tenant Board under s.69 of the Residential Tenancies Act. The decision was given by Board Member Russell, dated September 8, 2016. It terminated Ms. Sharpe’s tenancy and ordered her evicted from her rental unit at 2251 Burnhamthorpe Road West, Unit A039, Mississauga, Ontario, which I will refer to as “the Unit”. Ms. Sharpe sought a review of that order pursuant to s.21.2 of the Residential Tenancies Act. The review was undertaken by Vice-Chair, Karen Wallace. On October 6, 2016 Vice-Chair Wallace denied Ms. Sharpe’s request to review an Order.
[2] Ms. Sharpe has appealed to this court. Her appeal is limited to questions of law.
[3] Ms. Sharpe was a tenant in the Unit in question since June 2001. On March 11, 2016 Ms. Sharpe’s two sons were arrested at the unit on firearm related charges. Ms. Sharpe was not present in the unit. She was incarcerated.
[4] The respondent on the Appeal, Peel Housing Corporation, served two notices of eviction on Ms. Sharpe. Ultimately, she was to vacate the unit on May 31, 2016. Ms. Sharpe did not leave. The Housing Corporation filed an Application with the Landlord and Tenant Board to have Ms. Sharpe evicted. The matter came on for a hearing on August 30, 2016 at 1:30 p.m.
[5] On August 30, 2016, Ms. Sharpe sought an adjournment of the hearing. She was complaining of a bad toothache. The Board member, Ms. Russell, stood the matter down to allow Ms. Sharpe the opportunity to consult with duty counsel. Ms. Sharpe did not get to see duty counsel. She now argues her pain was so great she had to seek immediate medical attention. She left the building and did not return when her case was called.
[6] Board member Russell, then proceeded with the hearing in her absence. Evidence was led that an illegal handgun and a quantity of drugs were found in the Unit sufficient for the police to lay trafficking charges against Ms. Sharpe’s sons.
[7] Section 61 of the Residential Tenancies Act allows a landlord to give notice of termination to a tenant when a tenant or another occupant commits an illegal act in the unit. Board member Russell found the actions of Ms. Sharpe’s sons constituted the commission of an illegal act. She also found the illegal act of the possession of an illegal handgun impaired the safety of the other tenants. She therefore found that there was a basis to issue an order for eviction.
[8] The essence of Ms. Sharpe’s appeal is that the refusal of Board Member Russell to grant her adjournment request amounted to denial of natural justice. Ms. Sharpe argues that error was repeated by Vice Chair Wallace insofar as she held that Board Member Russell’s decision to proceed was reasonable in all the circumstances. Ms. Sharpe contends Vice-Chair Wallace considered only the prejudice to the Housing Corporation in assessing the decision not to grant the adjournment and this constituted an error of law on her part. Ms. Sharpe contends both adjudicators of the Landlord and Tenant Board denied her right to procedural fairness and thereby committed errors of law.
[9] The standard of review of matters of this nature is reasonableness and the authority for that is the decision of the Divisional Court in Christo v. Woon, 2017 ONSC 5127 at para. 24. In questions of procedural fairness, the standard of review analysis does not apply. The court must determine whether the correct degree of procedural fairness was accorded the parties based upon the events that unfolded, the principles of natural justice and the tribunal’s own rules and procedures.
[10] Matters of procedure are within the discretion of the Board and their decisions in that regard are entitled to deference. We do not agree that the decision to proceed in Ms. Sharpe’s absence constituted a breach of natural justice or procedural unfairness. Ms. Sharpe was in attendance at the beginning of the hearing in question. She made submissions. She simply did not wait around for the Board to tell her what it intended to do about her request for an adjournment. She cannot reasonably expect that the presiding member was able to discern why she did not re-attend the hearing. Her toothache issue had been going on for some time prior to the hearing. While no doubt on some occasions such maladies can be debilitating, she did attend the first part of the hearing and made her submissions for an adjournment. We do not think it unreasonable for the hearing to have proceeded as the Board chair had no idea why Ms. Sharpe was not back when the matter was recalled. It is unreasonable for her to have left without at least having talked to someone to let others know why she was not going to continue to participate.
[11] We also see no error in the reconsideration decision of Vice-Chair Wallace. The Vice-Chair set out the basis for her decision. She considered not only Ms. Sharpe’s request in the context of the denial for the adjournment, but also was aware of the other aspects of the request for reconsideration such as Ms. Sharpe’s allegations of social injustice, bias, mistreatment and racial discrimination by her neighbours, the Housing Corporation agents and the Peel Police. The Vice-Chair properly dealt with the standard applicable to matters before the Board, that of proof on the balance of probabilities. She recognized the Board’s mandate to deal with matters in an expeditious manner. On these standards, she found Board Chair Russell committed no error and a review was unwarranted.
[12] In determining to terminate the tenancy we find no error in the reasons given by Board Member Russell. Possessing an illegal handgun in an apartment unit places the other tenants in the building in harm’s way and jeopardizes the character of the building. Therefore, the character of the premises were disturbed and the reasonable enjoyment of the premises was also disturbed for the other tenants. There was no error of law in the decision to terminate the tenancy.
[13] With respect to the allegations of a new issue, while it was not expressly argued at the review, consideration of the fact that illegal drugs were found along with an illegal handgun, which was referred to in the eviction, was appropriate contextual information for the Board to consider.
[14] In our view, the consideration of these facts by the Board was reasonable and we would not give effect to this ground for appeal.
[15] For these reasons the appeal is dismissed.
F. B. Fitzpatrick, J.
I agree _____________________________
R. D. Gordon, R.S.J.
I agree ______________________________
L. A. Pattillo, J.
Date of Reasons for Judgment: October 20, 2017
Date of Release:
CITATION: Peel Housing Corporation o/a Peel Living v. Sharpe, 2017 ONSC 6303
DIVISIONAL COURT FILE NO.: DC 16-0107-01
LTB FILE NO.: CEL-59052-16 DATE: 20171020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Gordon RSJ, Pattillo and Fitzpatrick JJ.
BETWEEN:
PEEL HOUSING CORPORATION O/A PEEL LIVING
Respondent
(Landlord)
– and –
ELAINE SHARPE
Appellant
(Tenant)
ORAL REASONS FOR JUDGMENT
Fitzpatrick, J.
Date of Reasons for Judgment: October 20, 2017
Date of Release: