Li v. Gibson, 2018 ONSC 1347

CITATION: Li v. Gibson, 2018 ONSC 1347

DIVISIONAL COURT FILE NO.: 644/17 LANDLORD AND TENANT BOARD

FILE NO.: TSL-87548-17, TSL-87195-17

DATE: 2018 02 26

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

LIN LI

Respondent (Landlord)

– and –

SUSAN GIBSON

Appellant (Tenant)

Timothy M. Duggan, for the Respondent (Landlord)

Susan Gibson, acting in person

HEARD at Toronto: February 26, 2018

C. HORKINS J. (Orally)

1The landlord, Lin Li, brings a motion for an order quashing the appeal of the tenant, Susan Gibson. The tenant has not filed any material in response to this motion. The background facts are set out as follows.

2The landlord is the owner of a residential property located at 137 Galt Avenue in Toronto, Ontario. The tenant leases a unit at this residential property, specifically Unit 3, on a month-to-month basis. The tenancy commenced on or about January 15, 2016.

3Pursuant to the terms of the landlord’s agreement with the tenant, she agreed, among other things, to pay monthly rent at $880.00.

4On or about January 15, 2016, the tenant moved into the rental unit where she continues to reside today.

5The landlord intended to recover possession of the rental unit so that she could move into the residential property with her husband and their daughter. As a result, on or about March 29, 2017, the landlord served the tenant with a Form N12 Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit (the “N12 Notice”).

6Although served with the N12 Notice, the tenant did not move out of the rental unit. As a result, on or about July 26, 2017, the landlord initiated proceedings and filed an application with the Landlord and Tenant Board (the “Board”) pursuant to the N12 Notice seeking an order for termination of the tenant’s tenancy and eviction (the “L2 Application”).

7The Board scheduled the L2 Application to be heard on or about September 22, 2017. Since on or about January 1, 2017, the tenant has persistently failed or refused to pay the full amount of rent owing on the date the rent was due. While the tenant made payments from time to time, by July 1, 2017 the tenant owed arrears of rent of approximately $2,800.00.

8As a result, on July 21, 2017 the landlord served the tenant with a form N4 Notice to End a Tenancy Early for Non-Payment of Rent (the “N4 Notice”).

9Despite being served with the N4 Notice, the tenant did not move out of the rental unit or pay the arrears of rent that were owed.

10On or about August 8, 2017, the landlord initiated proceedings and filed an application with the Board pursuant to the N4 Notice seeking an order for termination of the tenant’s tenancy, payment of rent arrears and eviction (the “L1 Application”). The Board in turn scheduled the L1 Application to be heard on September 5, 2017.

11On September 5, 2017, the parties attended before the Board for the hearing of L1 Application. Prior to the commencement of the hearing, the tenant consulted with duty counsel at the Board and obtained legal advice.

12Before the commencement of the hearing and with the assistance of a dispute resolution officer at the Board, the parties reached an agreement (the “Agreement”) to resolve all matters at issue in both the L1 Application and the L2 Application (collectively, the “Eviction Applications”).

13The parties then made a joint submission to the Board requesting that a consent order be issued (the “Termination Order”) that among other things, provided as follows:

(a) Termination of the tenant’s tenancy and requiring the tenant to move out of the rental until on or before November 1, 2017 (the “Termination Date”);

(b) Providing that if the rental unit was not vacated on or before November 1, 2017, then the landlord could file the termination order with the Court Enforcement Officer (the “Sherriff”) so that the eviction could be enforced;

(c) Directing the Court Enforcement Office to give vacant possession of the rental unit to the landlord on or after November 2, 2017;

(d) Providing that if the rental unit was not vacated on or before November 1, 2017, then starting November 2, 2017 the landlord was entitled to per diem compensation of $28.93 from the tenant until the landlord obtained vacant possession of the rental unit;

(e) Ordering the landlord to apply the last month’s rent deposit to the rent for the month of October, 2017;

(f) Ordering the landlord to provide rent receipt(s) to the tenant for all rent payments made during the year 2016;

(g) Ordering the tenant to pay $960.00 to the landlord for her arrears of rent to September 30, 2017 and the costs of filing the L1 Application, as follows:

(i) $480.00 on or before September 8, 2017; and

(ii) $480.00 on or before September 30, 2017; and

(h) If the tenant failed to make any of the above payments set out in paragraph (g), then the balance owing to the landlord would become and payable on October 1, 2017 and interest at 2% annually would start to accrue on October 1, 2017 on any amount outstanding until the amount was paid in full.

14After hearing the joint submission of the parties, the Board member presiding over the hearing read out the terms of the Termination Order, while the parties were in the hearing room, and the tenant and the landlord each orally confirmed that they understood and agreed to the terms of the Termination Order. After reading out the terms of the Termination Order and confirming the parties’ understanding and agreement with same, the Board issued the Termination Order.

15Despite consenting to the Termination Order, the tenant did not vacate the rental unit and did not pay her arrears of rent as required by the Termination Order. Instead, on or about October 6, 2017, the tenant filed a request to review an order (the “Review Request”).

16The Board conducted a preliminary review of the Review Request and issued an order without a hearing on October 18, 2017 that denied the Review Request and confirmed the Termination Order (the “Review Order”) based on the following:

(a) The Board was not satisfied that there was a serious error in the Termination Order or that a serious error occurred in the proceedings;

(b) The Termination Order was a consent order and the Board found that none of the grounds on which a consent order could be set aside were disclosed in the Review Request;

(c) The tenant had attended the hearing on September 5, 2017 and was self-represented but the tenant had consulted with tenant duty counsel at the Board prior to the commencement of the hearing;

(d) The parties had met with a dispute resolution officer at the Board prior to the commencement of the hearing and had discussed the issues involving termination of the tenancy and settlement of the rent arrears. The parties then re-appeared before the Board with their mutual consent which clearly stated that the parties had resolved all matters at issue in the Eviction Applications and the Board noted in the Termination Order that it was satisfied that the parties understood the consequences of their consent to the Termination Order;

(e) The tenant, by way of her review request, claimed that she had made a mistake and thought that the L2 Application would be dealt with on the date it was scheduled for hearing, being September 22, 2017. The Board found that this did not amount to a “mistake” sufficient to set aside the Termination Order;

(f) Given the tenant’s consent to the termination of her tenancy as part of the Agreement negotiated by the parties, the issue of the L2 Application was irrelevant in any event; and

(g) There were no grounds on which the Termination Order could be reviewed and the review request was therefore dismissed.

17On or about November 2, 2017, the tenant filed a notice of appeal with the Divisional Court. This notice of appeal caused the termination order to be automatically stayed pursuant to subsection 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

18In her notice of appeal, the tenant describes her grounds of appeal as follows:

(1) The landlord/respondent made two separate applications to the Board seeking to terminate the tenancy of the appellant.

(2) At the Landlord and Tenant Board Hearing on September 5, 2017, the tenant/appellant was misled, coerced and/or pressured into a mediation agreement regarding non-payment of rent.

(3) A Review Order, dated October 18, 2017 advised that the Board declined to review the September 6, 2017 Order.

(4) The Board misapplied contract law principles in failing to conclude that the September 5, 2017 mediation agreement was entered into by the tenant on the basis of misrepresentation, coercion, duress and/or undue influence and therefore made an error in law.

19The landlord states that there are four reasons why the appeal should be quashed. For the reasons that follow, I conclude that any one of these reasons is sufficient to support the relief that the landlord requests.

Legal Framework

20Before I consider the reasons to quash the appeal, I will briefly set out the legal framework that governs this motion. An appeal lies with to the Divisional Court from a decision of the Board but only on a question of law (s. 210(1) of the Residential Tenancy Act). This court has jurisdiction to quash an appeal under s. 134 of the Courts of Justice Act. However, such relief should only be granted where it is demonstrated that the appeal is “manifestly devoid of merit” or where the appeal can be said to be an abuse of process because it has been brought solely for the purpose of delay (see Oatway v. Canada (Wheat Board), 1945 43 (SCC), [1945] S.C.R. 204; Lesyork Holdings Ltd. V Munden Acres Ltd. (1976), 1976 793 (ON CA), 13 O.R. (2d) 430 (C.A.); Hornstein v. Royal Bank, 2007 CarswellOnt 2413 (Ont. Div. Ct.)). This court also has the power to dismiss an appeal as an abuse of process under s. 140(5) of the Courts of Justice Act.

Analysis and Conclusion

21For the reasons that follows, the tenant’s appeal is quashed.

22First, this is an appeal of an order made on consent. Pursuant to s. 133(a) of the Courts of Justice Act, an appellant must obtain leave to appeal a consent order. The tenant in this case did not obtain leave.

23The court will typically uphold a consent order on the basis that such orders can only be set aside on grounds such as common mistake, misrepresentation, fraud or other grounds that would invalidate a contract. Attempts by parties to revisit orders that have been made on consent are generally not tolerated.

24It is clear from the record that the tenant had the assistance of duty counsel and she agreed to the consent order after mediating the issues with a neutral dispute resolution officer.

25Lastly, before issuing the consent order, the Board member confirmed that the tenant understood and agreed to the consent terms of the termination order. I have no evidence from the tenant that would cause me to doubt the reliability and integrity of the process that led to this consent order which I have called the Termination Order.

26Second, the tenant’s right to appeal is restricted to a question of law only. The four grounds of appeal in the tenant’s notice of appeal do not articulate an error of law. In essence, the tenant states in her notice of appeal that she was misled, coerced and/or pressured into the consent agreement. These grounds raise questions of mixed fact in law. They are not questions of law.

27Given the above, I conclude that this appeal is manifestly devoid of merit. The tenant has not paid rent since September 2017. Today she owes what counsel states is $4,838.39 and she is occupying the premises rent free. In these circumstances, I find that the tenant has issued her appeal solely for the purpose of remaining in the premises without paying rent.

28The landlord’s motion is allowed. The tenant’s notice of appeal dated November 1, 2017 is quashed pursuant to s. 134 of the Courts of Justice Act.

29I have endorsed the Motion Record of the Landlord (Respondent) as follows: “The Landlord’s motion to quash the appeal of Susan Gibson is allowed. The relief is as stated in the Order that I have signed today (copy is attached). Oral reasons provided in court today. The Landlord seeks costs of $6,324.72 (substantial indemnity) or $4,377.16 (partial indemnity). The Tenant asks that no costs be ordered against her because she says she is on social assistance and

has health problems (there is no evidence of either reason). The Landlord was successful and is entitled to fair and reasonable costs. I fix the Landlord’s costs at $2,500 all-inclusive and order that the tenant pay this amount to the Landlord for costs.”