CITATION: Toronto Community Housing Corporation v. Moallim, 2018 ONSC 1900

DIVISIONAL COURT FILE NO.: 658/17 DATE: 20180320

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, SACHS and CORTHORN JJ.

BETWEEN:

TORONTO COMMUNITY HOUSING CORPORATION

Katie Douglas and Orna Raubfogel, for the Landlord (Respondent in Appeal)

Landlord (Respondent in Appeal)

– and –

IDILL ABDILLAHI, II WAD or IIWAD ABDILLAHI, IMAN ABDILLAHI, SAADA HABANE

No one appearing

Tenants

AHMED MOALLIM

Alamgir Hussain for the Unauthorized Occupant (Appellant in Appeal)

Unauthorized Occupant (Appellant in Appeal)

HEARD at Toronto: March 20, 2018

SACHS J. (Orally)

Nature of the Proceeding

[1] On October 27, 2017 the Landlord and Tenant Board (the “Board”) determined that the Appellant was an unauthorized occupant of a townhouse in Toronto owned and operated by the Respondent, Toronto Community Housing Corporation. As a result, it terminated the tenancy of Ms. Habane and her children and ordered that the Appellant (and his family) move out of the rental unit by November 10, 2017.

[2] On November 1, 2017, the Board denied the Appellant’s request for a review of its October decision (the “Review Decision”).

[3] This is an appeal from those decisions.

Factual Background

[4] The Respondent is a social housing provider. The vast majority of the residential rental units it provides are occupied by tenants with low and moderate incomes whose rents are subsidized.

[5] In December of 2009, Ms. Habane became a tenant of the Respondent. She lived in the unit at issue with a number of children. Her rent was subsidized in accordance with the “rent-geared-to income” program administered by the Respondent.

[6] In the fall of 2015, Ms. Habane told the Respondent that she and the Appellant were spouses and that they would be living together in the unit with her children. As a result, a new lease was executed on September 21, 2015 with Ms. Habane, those of her children who were over 16 years old and the Respondent.

[7] In November of 2015, the Respondent’s Internal Audit and Investigation Unit undertook an investigation of the household residing in the unit. As a result of that investigation, the Respondent determined that it had been misled when it executed the new lease in September of 2015. Specifically, prior to that time Ms. Habane and her children had moved out of the unit to another city and the Appellant had moved himself in with his family (including his wife) once Ms. Habane left. At the time there were approximately 100,000 households on the waiting list for social housing in the City of Toronto.

[8] As a result, the Respondent applied to the Board for a determination that Ms. Habane transferred her tenancy to the Appellant without the Respondent’s consent, such that the Appellant was an unauthorized occupant of the unit. On this basis the Respondent also requested an order terminating the tenancy.

The Board’s Decision

[9] At the hearing before the Board, the Appellant and the Respondent attended and were represented by legal representatives. Ms. Habane did not attend.

[10] The Board heard evidence from the Appellant, the investigator who conducted the investigation on behalf of the Respondent and the Respondent’s tenant co-ordinator.

[11] At the conclusion of the hearing, the Board found that it was satisfied on a balance of probabilities that Ms. Habane and her children had vacated the unit prior to the lease being signed in September of 2015 to add the Appellant and that Ms. Habane had transferred the tenancy to the Appellant illegally. Thus, it granted the Respondent’s application.

Issues Raised on this Appeal

[12] On this appeal, the Appellant submits that the Board’s decision is in error for the following reasons:

(1) The Board erred when it failed to dismiss the Respondent Landlord’s application pursuant to ss. 100(2) and 104 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 ( the “Act”).

(2) The Appellant did not have an interpreter and was not able to reasonably participate in the proceedings before the Board.

(3) The Board made findings of fact that were in error that should be overturned.

(4) The Board erred in failing to exercise its discretion under s. 83 of the Act to allow the Appellant and his family to remain in the unit for a longer period of time.

(5) The Board erred in its consideration of s. 203 of the Act, which prohibits the Board from making any determinations regarding rent-geared-to-income assistance or eligibility for any form of housing assistance.

(6) The Board erred in its application of the burden of proof.

(7) The Board’s decision violated the Appellant’s Charter rights.

[13] The Appellant also brought a motion to admit fresh evidence on the appeal, which the court heard and dismissed at the commencement of the appeal, with reasons to follow.

This Court’s Jurisdiction

[14] Pursuant to s. 210(1) of the Act, decisions of the Board are appealable to the Divisional Court, but only on questions of law.

The Motion for Fresh Evidence

[15] The Appellant sought to admit three affidavits on the appeal, one from himself, one from his wife, Ms. Roda, and one from Ms. Habane. In his affidavit, the Appellant reargues his position on the facts, makes legal arguments regarding the Board’s orders and includes correspondence between himself and the Respondent’s counsel sent after the appeal was commenced. He also deposes that Ms. Roda is six months pregnant and in poor health and that they have five children. Ms. Roda’s affidavit states that she has lived in the unit since September of 2016, is pregnant, has health issues and has experienced stress since the eviction. Ms. Habane’s affidavit states that she was a tenant in the unit from January of 2010 until March of 2016 and applied to add the Appellant, her “common law partner”, to the tenancy in October of 2015.

[16] The test for the admission of fresh evidence requires the moving party to satisfy the court that (1) the evidence could not have been obtained prior to trial through the exercise of reasonable diligence; (2) the evidence is credible; (3) the evidence is relevant in that it bears on a decisive or potentially decisive issue in the appeal; and (4) if admitted on the appeal, the evidence would likely be conclusive of an issue (Sengmueller v. Sengmueller, 1994 8711 (Ont. C.A.)).

[17] The evidence that the Appellant seeks to adduce does not meet this test. First, some of the evidence the Appellant seeks to put in through his affidavit was already before the Board. Second, there is no reason why, with the exercise of reasonable diligence, Ms. Roda and Ms. Habane could not have testified at the hearing. Third, there is reason to question the credibility of much of the evidence and fourth, the evidence is not likely to be conclusive of an issue on the appeal.

Sections 100(2) and 104 of the Act

[18] The Appellant submits that the Board erred in failing to apply ss. 100(2) and 104 of the Act to find that the Respondent was out of time in bringing the application before the Board. This is a question of law.

[19] Section 100(2) of the Act imposes a 60-day deadline for residential landlords to apply to the Board after learning of an unauthorized occupancy and s. 104(4) of the Act relates to a deemed assignment of a tenancy if an application has not been commenced within the 60-day period set out in s. 100(2).

[20] The problem with this submission is that by virtue of s. 7(1) of the Act, sections 100(2) and 104 of the Act do not apply to the unit in question because the residential complex in which the unit is located is a designated housing project that is owned and operated by a local housing corporation. Section 7(1) specifically exempts “a rental unit in a designated housing project… that is owned, operated or managed by a …local housing corporation” from the application of ss. 100(2) and 104 of the Act.

The Appellant’s Ability to Participate at the Hearing

[21] This issue goes to the fairness of the proceedings below. As such it may be addressed on this appeal.

[22] The essence of the Appellant’s argument on this issue is that he “did not understand the process” and “may have needed an interpreter”.

[23] At no time did the Appellant request an interpreter at the hearing below, even though the matter came before the Board on two hearing dates and the Appellant had a legal representative with him at the Board. This kind of issue should not be raised by an appellant for the first time on appeal. If this issue had been raised before the Board and there was a legitimate concern, the Board could have taken steps to address it. By waiting until the appeal to raise the issue, the Board was deprived of the opportunity to address the issue.

[24] We also note that the Board on the review considered the Appellant’s argument on this issue, listened to a recording of the proceedings and found that the Appellant was able to participate fully in the proceeding. There was a transcript of the hearing filed on the appeal and the Appellant did not point to any place in the transcript to demonstrate his lack of facility with the English language.

[25] In oral argument, Appellant’s counsel made a submission to suggest that the Appellant’s legal representation before the Board was incompetent. This issue was not raised in the Appellant’s Notice of Appeal or in his factum. It cannot be raised for the first time in oral argument.

The Challenge to the Board’s Factual Findings

[26] This court only has jurisdiction to deal with questions of law alone, not with findings of fact or questions of mixed fact and law. Specifically, we have no jurisdiction to disturb the Board’s factual findings that (a) Ms. Habane and her children vacated the unit before the lease with the Appellant was signed, and (b) she transferred the unit to the Appellant illegally.

The Board’s Exercise of Discretion under s. 83 of the Act

[27] The Appellant submits that the Board erred in not granting him a longer time before he was evicted because he has 5 children and a pregnant wife.

[28] This is not a pure question of law. The Board did not find that the Appellant was a “tenant” and s. 83 contains a discretion that is to be exercised with respect to “tenants”. Finally, as the Review Decision noted, the Appellant did not put the fact that Ms. Roda was pregnant before the Board at the original hearing.

Section 203 of the Act

[29] The Board did not make any determination regarding eligibility for a rent-geared-to- income subsidy or for any other subsidy. Thus, its decision did not violate the provisions of s. 203 of the Act.

The Burden of Proof

[30] The Appellant argues that because the findings of the Board amounted to a finding of “fraud”, the applicable burden of proof was the burden in criminal proceedings, namely, proof beyond a reasonable doubt.

[31] As the Supreme Court of Canada made clear in FH v. MacDougall, 2008 SCC 53, there is only one standard of proof in civil cases – the balance of probabilities. The proceeding before the Board was a civil proceeding and the Board correctly applied this standard to its deliberations. (See also Toronto Community Housing Corporation v. McGowan, 2016 ONSC 172, where this court confirmed that even when the Board makes a finding on criminal conduct, the standard of proof to be applied is balance of probabilities, not proof beyond a reasonable doubt.)

The Charter Arguments

[32] The Appellant submits that the Respondent has breached his and his family’s s. 7 Charter right to security of the person by evicting them. In this regard, he asserts that the eviction has caused him and his family psychological stress.

[33] First, this argument was not raised before the Board and does not appear in the Appellant’s Notice of Appeal as a ground of appeal.

[34] Second, s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 requires a party seeking a remedy under s. 24(2) of the Charter to deliver a Notice of Constitutional Question to the Attorney General of Canada and the Attorney General of Ontario. If a party fails to deliver such a notice, the party cannot be granted a Charter remedy. The Appellant has delivered no notice to either Attorney General and therefore is not entitled to a remedy under the Charter.

[35] Third, the Appellant’s s. 7 Charter claim cannot succeed. He filed no evidence before the Board to support this claim and the Ontario Court of Appeal has found that there is no constitutionally guaranteed right to housing (Tanudjaja v. Canada (Attorney General), 2014 ONCA 852.)

[36] On the hearing of the appeal, the Appellant sought to argue that his rights under s. 8 were violated by the Respondent when it conducted its investigation. As this issue was raised for the first time in oral argument on the appeal, we declined to hear it.

Conclusion

[37] For these reasons the appeal is dismissed.

SWINTON J.

[38] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons delivered today by Sachs J. Costs to the Respondent for the motion to quash, the motion for fresh evidence and the appeal fixed at $3,500.00 all inclusive. Order to go in the amended form of the draft on which I placed my fiat.”

___________________________ SACHS J.

I agree

SWINTON J.

I agree

CORTHORN J.

Date of Reasons for Judgment: March 20, 2018

Date of Release: March 23, 2018

CITATION: Toronto Community Housing Corporation v. Moallim, 2018 ONSC 1900

DIVISIONAL COURT FILE NO.: 658/17 DATE: 20180320

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, SACHS and CORTHORN JJ.

BETWEEN:

TORONTO COMMUNITY HOUSING CORPORATION

Landlord (Respondent in Appeal)

– and –

IDILL ABDILLAHI, II WAD or IIWAD ABDILLAHI, IMAN ABDILLAHI, SAADA HABANE

Tenants

AHMED MOALLIM

Unauthorized Occupant (Appellant in Appeal)

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: March 20, 2018

Date of Release: March 23, 2018