Citation: Warraich v. Choudhry, 2018 ONSC 1275

DIVISIONAL COURT FILE NO.: 021/17 DATE: 20180228

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Wilton-Siegel, Thorburn, Ellies JJ.

BETWEEN:

SARFRAZ WARRAICH Appellant

– and –

AFTAB CHOUDHRY Respondent

Syed Abid Hussain, for the Appellant (Tenant) Sarfraz Warraich Arnold Zweig, for the Respondent (Landlord) Aftab Choudhry Eli Fellman and Sabrina Fiacco, for the Social Justice Tribunal Ontario

HEARD at Toronto: January 29, 2018

Wilton-Siegel J.

REASONS FOR JUDGMENT

[1] The appellant, Sarfraz Warraich, appeals the interim order of Member Anna Solomon (the “Board Member”) of the Landlord and Tenant Board (the “Board”) dated December 14, 2016. The Board terminated the tenancy between the parties and evicted the appellant after finding the appellant to be a tenant who had failed to pay rent owed to the respondent, Aftab Choudhry, the landlord (the “Order”).

Background

[2] The respondent served a Notice of Termination on the appellant, effective October 31, 2016, because the appellant had not paid the total rent he was required to pay between July 1, 2016 and December 31, 2016.

[3] On November 1, 2016, the respondent brought two applications to the Board seeking to evict the appellant. The first application (the only one before the Divisional Court on this appeal) concerned rent arrears of $10,893 owed by the appellant to the respondent pursuant to a lease dated March 1, 2013 (the “Lease”).

[4] On November 25, 2016, one of the lawyers at the law firm representing the appellant wrote to the Board requesting an adjournment. The lawyer requested an adjournment of the matter because “the same matter has been filed and issued with the Superior Court of Justice...[and] it may well be that all matters with respect to the above application will be dealt with in Superior Court.” This letter was not sent to counsel for the respondent.

[5] The Board held the hearing on December 7, 2016, as scheduled. A paralegal attended on behalf of the appellant and requested an adjournment. The paralegal advised he was only there as an agent to speak to the adjournment. He declined to make submissions about the Superior Court action and he did not provide the Board with copies of the material concerning that action. He did not provide any other reason for seeking the adjournment.

[6] In response to questions from the Board, counsel for the respondent explained that the appellant had commenced the action in Superior Court claiming that he was a co-owner of the property from which the respondent sought to have him evicted. Counsel further advised that the Superior Court had not ordered a stay of the proceedings before the Board. He also noted that the respondent would be prejudiced if the adjournment were granted, as his client had a mortgage and utilities to pay on the property while the appellant failed to pay rent.

[7] The Board Member denied the appellant’s request for an adjournment for five reasons:

(1) The issues before her fell squarely within the Board’s exclusive jurisdiction;

(2) The question of who is the landlord/tenant and whether the Act applies, is also within the Board’s jurisdiction;

(3) The appellant could raise his concerns regarding the tenancy during the hearing;

(4) The Superior Court did not impose a stay of the Board’s proceedings; and

(5) The prejudice to the respondent of having to wait to be paid the rent arrears outweighed the appellant’s prejudice of having to participate in the Board’s hearing “after receiving considerable notice of the proceeding.”

[8] The Board Member found that the appellant’s failure to attend was not a sufficient reason to grant the adjournment. The Board Member noted that she delivered her adjournment decision in the morning and the appellant’s legal representative “had several hours to communicate the decision to his client and arrange for him to attend the Board.” She further noted the following:

The Tenant’s legal representative did not provide any reason for the Tenant’s failure to attend and it appeared to me that the Tenant voluntarily chose not to attend based on the assumption that his adjournment request would automatically be granted.

[9] It appears the appellant made a Request to Review the Order, which was ultimately not heard because he failed to pay the required fee.

Jurisdiction of the Court

[10] The parties agree that section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (the “Act”) provides the Divisional Court with jurisdiction in this matter in respect of an appeal of the Order limited to questions of law.

Standard of Review

[11] The parties also agree that the standard of review of a decision of the Board when interpreting its home statute, regulation and rules is reasonableness: see First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54. In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47. There is no explicit standard of review for questions of procedural fairness or natural justice. The Court is required to evaluate whether the rules of procedural fairness or of natural justice have been adhered to in the specific circumstances taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.

Issues for the Court

Issue 1: Did the Board have jurisdiction to make the Order now under appeal?

[12] The appellant’s principal ground of appeal is that the Board lacked jurisdiction to hear the respondent’s application.

[13] The appellant submits that he has a 50% ownership interest in the property. He says that he paid $62,000 to the respondent for such interest and has since paid one half of all of the costs pertaining to the property. He has been living with his family on the property since its purchase. As mentioned, he has commenced an action in the Superior Court seeking a determination of his alleged ownership interest, which the respondent disputes.

[14] The appellant submits that the Board did not have jurisdiction to adjudicate property disputes and that the entire dispute between the parties should be addressed in the Superior Court action. He further argues that the respondent is seeking to obtain the same relief from two different forums, given that the respondent also filed a motion to obtain vacant possession of the property before the Superior Court. In that proceeding, Matheson J. ordered the appellant to continue paying $2,000 per month until the Divisional Court’s determination of this appeal.

[15] I am satisfied that the Board had jurisdiction in this matter despite the commencement of the Superior Court proceeding for the following reasons.

[16] There are two very different legal proceedings occurring in two different tribunals – the landlord’s eviction proceeding before the Board and the appellant’s claim of ownership in the Superior Court action. The Board has the jurisdiction to hear the eviction application which is based on the Lease. Indeed, it has the sole jurisdiction to terminate a tenancy and evict a tenant: see Toronto-Dominion Bank v. Hosein, 2016 ONCA 628. The Board’s jurisdiction in this regard extends to the determination of whether the appellant is a “tenant”, and the respondent is a “landlord”, as defined in s. 2(1) of the Act. Conversely, the Superior Court has the jurisdiction to adjudicate the appellant’s claim of an equitable ownership interest in the property.

[17] These are very separate proceedings that can proceed without any risk of conflicting decisions. In particular, a finding that the appellant is a lessee under the Lease does not in any way affect, much less determine, his claim that he has an equitable interest in the property as a co-owner.

[18] For this issue, the definition of a “tenant” under the Act is relevant:

“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,…(a) a co-owner of the residential complex in which the rental unit is located …

[19] Given this definition, the Board had jurisdiction unless it had notice that the appellant was occupying the premises pursuant to a “right to occupy a rental unit by virtue of being… a co-owner of the residential complex in which the rental unit is located …” In this case, the appellant was not registered on title as a co-owner of the property and there was no final determination in the Superior Court action that he was a co-owner. Accordingly, the Board had no notice that the appellant was in occupation by virtue of a right to occupy the premises as a co-owner. Consistent with the decision in the companion action under court file #732/17, the Board therefore had jurisdiction in this matter. The only jurisdictional issue before it was whether the appellant was a “person who pays rent in return for the right to occupy a rental unit.” Given the evidence before the Board, the Board decision that the appellant was a tenant for the purposes of the Act was not only reasonable but correct.

[20] The appellant argues that, having been apprised of the existence of the Superior Court action, the Board should have gone on to inquire into the nature of that action. I do not agree. In order to address its jurisdiction, the Board is required to establish whether or not an alleged tenant is a registered co-owner or has been found to be a co-owner in a final judgement of the Superior Court. The nature of the appellant’s claim, and any view of the merits of that claim, are matters that are beyond the jurisdiction of the Board.

[21] Further, to the extent that the appellant seeks to avoid the eviction order on some basis arising out of his alleged ownership, he can seek a stay in the Superior Court action. Similarly, if he has been wrongly found to owe money to the respondent by the Board because he is found to be a co-owner in the Superior Court action, he can make a claim for damages in that proceeding or otherwise. There is, however, no basis for indefinitely deferring the Board proceeding merely because he asserts an equitable ownership interest that has not been proven. In this regard, it is also relevant that the appellant’s request before the Board was for an adjournment rather than for a stay of the proceeding before the Board.

Issue 2: Did the Board give the appellant a fair opportunity to be heard?

[22] The appellant says that his lawyer was out of the country at the time of the Board’s hearing due to the passing of one his family members abroad. The appellant himself was also not present because he was attending a medical appointment. The appellant submits that the Board did not give the appellant a fair opportunity to be heard and to raise issues that could be the subject of an application under the Act, contrary to s. 82(1).

[23] We find that the Board Member did not improperly exercise her discretion to refuse to grant the appellant’s request for an adjournment for the following reasons.

[24] First, the Board is required to conduct its proceedings expeditiously, and has developed Rules and Guidelines for addressing adjournment requests. They were followed in this case. In particular, the Board provided reasons for denying the adjournment request.

[25] Second, no evidence was put forward at the hearing that counsel for the appellant was unable to attend due to the death of a family member abroad or that the appellant himself could not attend due to a medical appointment. The Board Member made this clear in her decision. In particular, the appellant failed to provide the Board Member with any explanation for his absence despite ample notice of the hearing date and of the Board Member’s intention to proceed on the day of the hearing. Moreover, on the day of the hearing, the appellant had ample warning by telephone that the Board Member intended to proceed. The hearing started in the morning but did not recommence until 4:30 pm. There is no indication as to why the appellant was unable to attend even if he did have a medical appointment earlier in the day.

[26] Third, it is clear that the appellant did not attend because he thought that he was entitled to an adjournment based on the Superior Court action. In choosing not to appear, the appellant assumed the risk that this was legally incorrect, and the further risk of an adverse finding on the Board’s jurisdiction to hear the application.

[27] Lastly, the appellant also argues that the Common Rules of the Social Justice Tribunals of Ontario provide for a liberal and purposive interpretation and application of the rules to promote fair, just and expeditious resolutions. He or counsel on his behalf could have attended at the Board hearing and made this argument but did not do so. It is too late to raise these arguments when the appellant had an agent representing him at the hearing.

[28] Based on the foregoing, we find that there was no denial of procedural fairness or natural justice.

Issue 3: Did the Board err in not conducting a consolidated hearing of the two applications?

[29] The appellant submits that the Board was required to direct that the two applications, which were filed on the same date, be joined and heard together, pursuant to s. 198(1) of the Act. We do not agree.

[30] Section 198(1) reads as follows:

Despite the Statutory Powers Procedure Act, the Board may direct that two or more applications be joined or heard together if the Board believes it would be fair to determine the issues raised by them together.

[31] Sections 198(1) of the Act and s. 9.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 permit a tribunal to combine two or more proceedings but neither provision requires or directs the Board to hear applications together. I would also note that the appellant has failed to demonstrate any prejudice flowing from the failure to consolidate the two proceedings.

Issue 4: Did the Board err in finding that the respondent complied with the requirements of s. 12 of the Act?

[32] In his factum, the appellant submits that a tenant’s obligation to pay rent is suspended if the landlord had not provided his name and address in the lease agreement pursuant to s. 12 of the Act. The appellant says that, even if a valid lease agreement existed, the respondent’s address was not provided in the Lease.

[33] This issue was not raised at the Board and is being raised for the first time on appeal. In order to do so, the appellant must demonstrate that all of the facts necessary to address the point being raised are before the court as fully as if the issue had been raised at first instance: see IceGen Inc. (Re), 2016 ONCA 907. In this case, the record on this issue is not complete. Further, there is no evidence of any prejudice flowing from the alleged breach of s. 12. In particular, there is no evidence that the appellant was unable to communicate with the respondent or that he was prevented or disadvantaged from providing the respondent with notices or other documents.

Issue 5: Did the Board conduct a mandatory review concerning the appellant’s eviction?

[34] Pursuant to s. 83 of the Act, it was mandatory for the Board to be satisfied, having regard to all of the circumstances that it would be unfair to refuse to grant a landlord’s application for eviction. The appellant says that, because the appellant was not present, the Board was unable to satisfy itself in respect of all of these circumstances.

[35] The relevant provision is s. 83(2), which reads as follows:

If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1) [which are (a) to refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse or (b) to order that the enforcement of the eviction order be postponed for a period of time].

[36] In this case, the Board Member expressly turned her mind to the need to conduct a review pursuant to s. 83 of the Act based on the evidence before her. That evidence consisted of the testimony of the respondent that the appellant had recently built a new house in the same neighbourhood. The Board Member also asked the paralegal if he had any information that would bear on this issue but he declined to comment. The appellant cannot rely on his own unjustified absence to argue that the Board lacked evidence that he would have provided in conducting the s. 83 review.

Issue 6: Did the Board err in determining the arrears of rent?

[37] The appellant submits that the respondent did not present evidence to the Board that he had in fact received $2,000 as pre-payment of the last month’s rent. As such, the Board failed to take into consideration this rental deposit in determining arrears.

[38] This is a purely factual matter and, accordingly, is not appealable.

Conclusion

[39] Based upon the foregoing, the appellant’s appeal is dismissed in its entirety.

[40] Costs in the amount of $10,000, on an all-inclusive basis, are awarded in favour of the respondent.

___________________________ Wilton-Siegel J.

I agree ______________________________

Thorburn J.

I agree ______________________________

Ellies J.

Released: February 28, 2018

CITATION: Warraich v. Choudhry, 2018 ONSC 1275 DIVISIONAL COURT FILE NO.: 021/17 DATE: 20180228

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Wilton-Siegel, Thorburn, Ellies, JJ.

BETWEEN:

Sarfraz Warraich Appellant

– and –

Aftab Choudhry Respondent

REASONS FOR JUDGMENT

Wilton-Siegel, Thorburn, Ellies JJ

Released: February 28, 2018