CITATION: Gent v. IMH Pool III LP, 2017 ONSC 7230
Divisional Court File No.: 572-17
DATE: 20171205
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JO ANNE GENT v. IMH POOL III LP
BEFORE: Michael G. Quigley J.
COUNSEL: Jo Anne Gent, Self-Represented Kristin Ley for the Moving Party, IMH Pool III LP
HEARD: November 28, 2017 at Toronto, Ontario
E N D O R S E M E N T
Background
[1] On this motion brought under s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.4 ("CJA"), IMH Pool III LP (the "Landlord") seeks to quash the appeal of the Tenant, Jo Anne Gent, to this court from the Order of Member Gobinder Randhawa of the Landlord and Tenant Board (the "Board") dated September 12, 2017.
[2] The Landlord is the owner of unit 1605 at 1080 Kingston Road, Scarborough Ontario (the "Rental Unit"). Ms. Gent has occupied the Rental Unit continuously since October 1, 2011. Her monthly rent is presently $1,528.88, but she has not paid the rent as required for the months of July through November, 2017.
[3] On August 9, 2017, the Landlord filed a Form Ll Application to the Board seeking to evict the tenant for non-payment of rent and to collect the rent she owed (the "Ll Application"). That application was scheduled to be heard by the Board on September 6, 2017. Mr. Matt Anderson attended that day on behalf of the Landlord. As Ms. Gent recalls the day, it was very crowded and busy and Mr. Anderson was agreeable to settling the matter, so as a result the parties mutually agreed to resolve all of the matters that were at issue in the application.
[4] When they came before the presiding Board Member, the parties made a joint submission as to the terms of a Consent Order to dispose of the Landlord's application. Ms. Gent recalls being in possession of photographs of some of the damaged areas of her apartment that she claimed required repair and that she intended to present to the Board, but in the end did not pursue those matters and instead consented to the Board's Order. Ms. Gent agreed that she owed the rent claimed by the Landlord and she agreed to a standard order that if she did not pay the rent owed by September 30, she would need to vacate the Rental Unit.
[5] The Consent Order was issued on September 12, 2017. As had been agreed, that order terminated Ms. Gent's tenancy of the Rental Unit, effective September 30, 2017, unless she voided the order by paying $4,693.87 (the rental arrears plus the Ll Application filing fee) on or before September 30, 2017 to the Landlord or to the Board in trust.
[6] However, on or about October 2, 2017, Ms. Gent filed a Notice of Appeal to this court appealing the Consent Order of Member Randhawa. Since she filed the appeal, she has failed to pay any rent to the Landlord. As a result, when taking into account the amount of arrears of rent that she owed as of September 6, 2017, and the fact that she has failed to pay any rent for the months of October and November, 2017, the arrears of rent she now owes as of November 6, 2017, the date this motion was filed, total $7,576.63.
[7] Then, however, on October 30, 2017, the Appellant, Ms. Gent, served the Landlord, via facsimile, with an Amended Notice of Appeal. In that amended notice, she raised numerous factual issues going back some years relating to alleged failure of the Landlord to maintain the Rental Unit, and other wrongs alleged to have been perpetrated by the Landlord. These allegations are set out in paragraphs 14-19 of the Amended Notice of Appeal.
Issues
[8] There are two issues raised by this motion with respect to the Tenant's appeal: (i) should the Tenant's appeal be quashed under section 210 of the Residential Tenancies Act 2006, S.O. 2006, c. 17 ("RTA") because it is an appeal of a consent order and fails to raise a question of law; and (ii) in the alternative, should the Tenant be required to pay her rent in full and on time as it comes due, failing which, the stay on the Board's eviction Order should be lifted?
Analysis
[9] The first issue is whether Ms. Gent's appeal to this court should be quashed since it is an appeal of an order to which she consented. Under subs. 210(1) of the RTA, a person affected by an order of the Board may only appeal to the Divisional Court on a question of law: see Falconer v. Manufacturers Life Insurance Co., 2008, CarswellOnt 1275 (Div. Ct.) at para. 23.
[10] It is a well-known principle that there is no basis in law for appealing a consent order and that principle has been emphasized by this court in a number of decisions where appeals from the Board or the former Ontario Rental Housing Tribunal were being pursued: 1799113 Ontario Ltd. v. Szijjarto, 2017 ONSC 5642 (Div. Ct.) at para. 17; Beboning v. Wigwamen Inc., [2008] O.J. No. 4757; Labossiere v. Butler, [2003] O.J. No. 4763 at para. 5; Nistap Development Corp. v. Lockhart, [2003] O.J. No. 4799.
[11] It is apparent that this appeal is solely about setting aside the Consent Order and avoiding or delaying eviction and/or the obligation to pay rent for the Rental Unit. Ms. Gent does not allege an error of law in the Amended Notice of Appeal. She merely disputes her obligation to pay rental arrears, but that is a factual determination made by Member Randhawa that was based, in part, on the Tenant's own submission, so it cannot properly be the subject of an appeal to this court.
[12] The Tenant has not paid the monthly rent for July, August, September, October or November. Currently, the Tenant owes a combined amount to the Landlord in the sum of $7,751.63 (including the Board costs of $175.00).
[13] This Court has jurisdiction to quash an appeal under subsection 134(3) of the Courts of Justice Act. Such relief should be granted where it is demonstrated that the appeal is devoid of merit, has no reasonable prospect of success and/or where the appeal can be said to be an abuse of process: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(3) ("CJA"); Lesyork Holdings Ltd. v. Munden Acres Ltd., 1976 CarswellOnt 300 (C.A.) at para. 2; Hornstein v. Royal Bank, 2007 CarswellOnt 2413 (Div. Ct.) at paras. 2-3, 6-7.
[14] I agree with the Landlord that the Tenant is attempting to raise issues in this appeal that were not the subject of the hearing before the Board, including allegations of outstanding maintenance issues and property damage. The additional relief requested and grounds for that relief ought to be struck from the Amended Notice of Appeal pursuant to r. 25.11 of the Rules. I agree with the Landlord's position that the relief requested and grounds raised that cover matters that were not before the Board at first instance may prejudice, or delay a fair appeal of this matter, and are frankly, frivolous or vexatious and constitute an abuse of the court.
[15] Moreover, the general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at first instance if it had been known that the matter would be an issue on appeal: Kaiman v. Graham, 2009 ONCA 77 (C.A.) at para 18.
[16] In Kaiman, the Court of Appeal identified five reasons why it would be contrary to the interests of justice to entertain new arguments on an appeal before it. At least three of those five reasons are present in this case.
[17] First, appeals cannot be conducted without any regard for the pleadings and positions advanced at trial, or in this case, before the Board. However, in this case, only the Landlord's application concerning the non-payment of rent was before the Board; there were no materials submitted by the Tenant and, in fact, the hearing was resolved on an uncontested basis. Second, the Tenant in this appeal is alleging a breach by the Landlord of its statutory obligations under the RTA but there is no evidentiary record whatsoever to permit those allegations to be considered.
[18] Further, Ms. Gent has put forward no explanation why this argument was not raised at the Board. She made statements before me that she was somehow mislead in the proceedings before the Board, or by the Landlord's representative and while acknowledging she consented, says she did not consent to being evicted if she failed to pay the rental arrears. However, the evidence before me shows that the parties made a joint submission to the Board Member of the terms upon which they agreed to resolve the application.
[19] Moreover, the Board Member specifically inquired into Ms. Gent's understanding of the terms of the settlement arrangement and the Order he would issue on consent. He asked if both parties had agreed to those terms and Ms. Gent confirmed that they had. He asked if Ms. Gent understood the terms of the consent order and if she understood the consequences if she did not comply. Again, Ms. Gent confirmed that she did and that she was agreeing to those terms of her own free will. On that basis, and having made that inquiry, Board Member Randhawa advised Mr. Anderson and Ms. Gent that he would issue the order in accordance with those terms.
[20] The Tenant indicates in her Amended Notice of Appeal that she intended on requesting an adjournment at the Board hearing, but the fact is that she did not and instead elected to proceed before the Board on terms she consented to with the Landlord's representative. The Tenant's attempt to now change the substance of what she bargained for and consented to is also not a proper matter before this Court.
[21] In Catanzaro v. Kellogg's Canada Inc., 2015 ONCA 779, the endorsement of the Court of Appeal included the following:
On appeal, the Catanzaros, relying on this court's decision in Milios v. Zagas (1998), 1998 7119 (ON CA), 38 O.R. (3d) 218, submit that the motion judge erred by failing to consider the circumstances surrounding the acceptance of the settlement - circumstances they say support their position that the settlement should be set aside.
We do not agree. The policy of the courts is to promote settlement. The discretion to refuse to enforce a settlement should be exercised rarely. In our view the evidence before the motion judge did not support refusing to enforce the settlement.
The factors in the Milios case this court relied upon in allowing the plaintiffs to resile from their settlement agreement - mistake, significant compromise and prompt notification of the mistake - are not present in this case. While the various factors identified in Milios were relevant to the motion judge's analysis, the critical factors the Catanzaros relied upon to support their argument that the settlement should not be enforced were that Ms. Catanzaro accepted the offer in haste and was under stress at the time. These factors were considered and expressly rejected by the motion judge: the evidence simply did not support either assertion. We see no error in this finding.
[22] This recent decision bolsters the Landlord's contention that agreements, and joint submissions, are serious and that they should not be easy to simply overturn. To allow parties, after the fact, to raise claims they could have or allow second thoughts after an agreement is struck would cause unnecessary waste on our Tribunals and Courts. No one, even with an order, would feel safe to rely on what has been agreed to. This would not be a just result.
[23] Finally, relative to the request to quash the appeal, the Tenant raises the prospect of a jurisdictional issue with respect to the Board rendering a decision on the Landlord's application under s. 69 of the RTA. Subsection 69(1) is clear that a landlord may apply to the Board for an order terminating a tenancy and evicting a tenant if the landlord has given notice to terminate the tenancy under the RTA. Here, the Landlord commenced the eviction process by serving the Tenant with the Board-prescribed notice to terminate the tenancy (N4). There were several amendments made to the RTA on September 1, 2017, but none of those amendments related to the provision identified by the Tenant. As such, I find there is no merit to this particular ground of appeal and that it does not raise a question of law.
[24] The second issue is raised by the Landlord in the alternative, if the appeal is not quashed. That is whether Ms. Gent should be required to pay her rent in full and on time as it comes due and to pay her arrears of rent, failing which, the stay on the Board's Eviction Order should be lifted.
[25] The Board's September 12, 2017 Order terminated Ms. Gent's tenancy and directed the Sheriff to enforce eviction if the Order was not voided by September 30, 2017, by Ms. Gent paying all arrears then due and thereafter paying her rent on a timely basis. However, when a person delivers a notice of appeal with respect to a given order, as the Tenant did in this case, then any provision of the Order appealed from for the payment of money (except for some provisions related to support) is automatically stayed pending disposition of the appeal. Further, the delivery of a notice of appeal from an Order under the RTA automatically stays any provision of the Order appealed from terminating a tenancy or evicting a tenant, pending disposition of the appeal. However, Rule 63.01(5) permits that automatic stay to be lifted by a judge of the Court to which the appeal is taken"on such terms as are just".
[26] In Elks v. Derouin, 2011 ONSC 6838, a tenant appealed a Board Order to the Divisional Court, and the landlord brought a motion to quash the appeal. The tenant in that case owed $8,800.00 in arrears of rent, and there were "ongoing issues relating to the non-payment of rent". In the alternative to an order quashing the appeal, the landlord sought an order requiring the tenant to pay her arrears of rent, and her rent in full and on time as it came due. The landlord also requested that"in default of any such payments the appeal shall be dismissed and the stay lifted". At paragraph 8 the Court commented that"there appears to be no valid reason why the Appellant tenant should not pay the arrears of rent and ongoing rent pending the outcome of the hearing of her appeal before the Divisional Court sometime in the future".
[27] In requiring a tenant to pay her arrears and ongoing rent pending disposition of the appeal, the Court in Elks referenced subsection 134(2) of the CJA, emphasizing that the Court was entitled to "make any interim order that is considered just to prevent prejudice to a party pending the appeal". The Court also cited Rule 63.01 of the Rules of Civil Procedure and particularly the fact that the Divisional Court was entitled to lift the automatic stay "on such terms as are just".
[28] The Court in Elks ordered that the automatic stay of the Board's Order evicting the tenant was lifted unless the tenant paid all arrears of rent owed on or before a certain date, and unless the tenant paid her rent on the first day of each month moving forward, pending disposition of the appeal. The Court ordered that if the tenant were to default on either of these conditions, then the Court Enforcement Office, upon receiving affidavit evidence of such default, was directed to give immediate possession of the rental unit to the landlord: see also Sivakova v. Timbercreek Asset Management, 2016 ONSC 281; Zwicker v. 6575 Halsey Inc., 2015 ONSC 2764.
[29] In this case, the provisions of the Board's Order that relate to termination of the Tenant's tenancy and eviction are stayed pursuant to Rule 63.01(3) of the Rules and pursuant to the Certificate of Stay obtained by the Tenant. I agree with the Landlord that it is prejudiced by the Tenant's ongoing failure to pay her rent. As the Court stated in Sivakova"[a] tenant is not entitled to live in a rental unit free pending an appeal". Indeed, both parties are legally required to continue to fulfill their respective legal and contractual obligations, pending disposition of the appeal.
[30] As such, if this appeal were permitted to proceed, I agree that a 'just" interim order to prevent further prejudice to the Landlord pending disposition of the appeal would require the Tenant to pay the arrears of rent that have accumulated since October 2017, being the first month after the Consent Order was issued, by a specified date, and to require the Tenant to pay her rent in full and on time as it comes due moving forward, pending disposition of the appeal. If she were to fail to do so, it would be only reasonable to permit the Landlord to move without notice before the Registrar of the Court, and upon affidavit evidence of non-compliance with the aforementioned conditions, to lift the stay on the portion of the Board's Orders terminating the tenancy and evicting the Tenant, pursuant to Rule 63.01(5) of the Rules. If the Tenant continues to fail to pay her rent, particularly in the face of an Order of this Court, then it is plain that eviction is the only way to prevent continued prejudice to the Landlord pending disposition of an appeal.
[31] In my view, however, while there are elements of the Landlord's alternative argument that I believe should be included in the result, I find that it is appropriate to quash the appeal. There is no question of law raised in any of the paragraphs of Ms. Gent's Amended Notice of Appeal, and orders of the Board are only appealable to this court on questions of law.
[32] I understand and accept the explanation Ms. Gent provided to me that she is in a difficult financial situation. She is awaiting a $12,000 payment from the Ontario Health Insurance Plan for reimbursement of out-of-province medical expenses, an amount that she advised she should have and expected to receive sometime this fall. It was on that basis that she believed she would have the necessary funds to pay her rental arrears at the time the consent Order of the Board was issued. Moreover, she is involved in a proceeding in Milton seeking to overturn part of the will of her late husband, Peter Appleyard, because no provision was made for the payment to her of $60,000 of spousal support that she claims was due to her at the time of his death, but which remains unpaid.
[33] I fully understand that when, and if, Ms. Gent receives these amounts, she will have no difficulty in paying her arrears of rent, and in meeting her rental obligations on a current basis going forward. The problem is that there is no certainty to these amounts, and it is unjust and inappropriate to prevent a Landlord from enforcing its contractual rights based on an uncertain but hopeful expectation of funds being received. When asked if she had any other sources of funds to look to for the payment of the back rent owing, Ms. Gent did acknowledge that she could turn to her sister for financial assistance but to date has chosen not to do so because she tries as a matter of principle to support herself and not look to others to provide for her financial wellbeing. While that may be an exemplary principled decision, again it cannot stand in the face of a Landlord who holds a consent Order seeking to enforce contractual rights that are long overdue and that have been ordered enforced on terms to which theTtenant agreed.
[34] In the result, this appeal will be quashed and the Landlord will be permitted to enforce. Further, the Landlord is entitled to its costs of this motion which I fix in the amount of $5,000 on a partial indemnity basis on the basis of the Landlord's Bill of Costs filed.
[35] However, to provide one last opportunity for Ms. Gent to access funds that will permit her to bring her rental account current, and having regard to the fact that Christmas is less than four weeks away and that it is always preferable at this time of year to extend a period of grace, the order will not be enforceable until January 30, 2018 and the stay from eviction will remain in place until that time.
[36] This extension of grace, however, cannot be permitted to allow Ms. Gent to live rent free in the interim. It is granted to permit her to obtain the total rental arrears presently due of $7,576.63 as of November 6, 2017 and to pay that amount in full, together with the costs of $5,000, for a total of $12,576.63 on or before January 30, 2018. In extending that grace period, however, it is not intended to and does not relieve her of her rental obligations in the interim, and the granting of that grace period itself has a condition. It will require that Ms. Gent pay December rent in the amount of $1,528.88, on or before December 15, 2017, and that she pay her January rent in the same amount on or before January 15, 2018. The maintenance of the stay until January 30, 2018 for the accumulated arrears and the costs of this motion totaling $12,576.63 is conditional on the Landlord receiving those two monthly rent payments in certified funds on or before the stipulated dates. Should the Tenant fail to make those payments, then the stay shall immediately be lifted and the Landlord shall be at liberty to immediately enforce its rights by evicting the Tenant and pursuing enforcement and collection of those arrears and costs without further notice.
[37] Order to go as follows:
On reading the motion record, factum and book of authorities of the Respondent, filed, and on hearing the submissions of the Appellant and on behalf of the Respondent, and for the reasons stated in my Endorsement of December 5, 2017,
THIS COURT ORDERS that this appeal is quashed pursuant to s. 134(3) of the Courts of Justice Act.
THIS COURT ORDERS that the automatic stay of the Landlord and Tenant Board Order dated September 12, 2017 shall be lifted effective as of January 30, 2018.
THIS COURT ORDERS that the Appellant, Jo Anne Gent, shall pay rent for December, 2017 in the amount of $1,528.88 in certified funds to the Respondent IMH Pool III LP on or before December 15, 2017.
THIS COURT ORDERS that the Appellant Jo Anne Gent, shall pay rent for January, 2018 in the amount of $1,528.88 in certified funds to the Respondent IMH Pool III LP on or before January 15, 2018.
THIS COURT ORDERS that the Appellant Jo Anne Gent, shall pay the arrears of rent owing under the Landlord and Tenant Board Order dated September 12, 2017 and the arrears of rent for October and November of 2017 in the amount of $7,576. in certified funds to the Respondent IMH Pool III LP on or before January 30, 2018.
THIS COURT ORDERS that the January 30, 2018 effective date for the lifting of the automatic stay of the Landlord and Tenant Board Order dated September 12, 2017, is conditional on the compliance of the Appellant, Jo Anne Gent with paragraphs 3 and 4 of this Order.
THIS COURT ORDERS that in the event of default by the Appellant, Jo Anne Gent, with respect to the conditions outlined in paragraphs 3 and 4 of this Order, the Respondent, IMH Pool III LP, may move without notice to the Registrar of this Court and upon affidavit evidence of non-compliance, the Registrar shall immediately lift the stay of the Landlord and Tenant Board Order of September 12, 2017, and direct the Court Enforcement Officer (Sheriff) to give immediate vacant possession of 1080 Kingston Road, Unit 1605, Scarborough, Ontario, to the Respondent.
THIS COURT ORDERS that the approval of the Appellant, Jo Anne Gent, as to the form and content of the formal order is dispensed with.
THIS COURT ORDERS that the Appellant, Jo Anne, Gent, shall pay the respondent, IMH Pool III LP's costs of this motion in the amount of $5,000.
Michael G. Quigley J.
Released: December 5, 2017