Capreit Limited Partners v. Graff, 2018 ONSC 2470
CITATION: Capreit Limited Partners v. Graff, 2018 ONSC 2470
DIVISIONAL COURT FILE NO.: 336/16
LTB NO.: TSL 73361-16 DATE: 20180416
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY and LeMAY JJ.
BETWEEN:
CAPREIT LIMITED PARTNERS
Respondent
– and –
MARIE GRAFF
Appellant
COUNSEL:
Timothy Douggan, for the Respondent
Marie Graff, acting in person
HEARD at Toronto: April 16, 2018
CONWAY J. (Orally)
[1] Marie Graff, the tenant, appeals the order of the Landlord and Tenant Board dated June 13, 2016. That order terminated her tenancy effective July 15, 2016 on the basis that she had persistently failed to pay the rent due and owing on the date it was due, pursuant to s. 58(1)1 of the Residential Tenancies Act, S.O. 2006, c. 17 (the “Act”).
[2] The hearing took place before Member Kevin Lundy on June 7, 2016. The tenant and the landlord’s legal representative (Mr. Paine) gave evidence at the hearing. Mr. Paine provided a statement of account for the tenant’s rent payment history, generated from the landlord’s accounting system, that set out her payments from April 1, 2015 to June 1, 2016. The tenant’s evidence was that the dates and amounts did not coincide with her banking records but she did not produce those records at the hearing nor request an adjournment. Her evidence was that she paid her rent on time each month (except for April 2016 when the landlord’s office closed early), as well as an amount each month towards the arrears that she had accumulated in the summer of 2015 when she was unemployed.
[3] The Member considered the parties’ evidence. He made a finding that the landlord had served the N8 Notice of Termination and accompanying details of her account. He found that the tenant had been persistently late in paying her rent from April 2015 to June 2016. He included a chart in his reasons, based on the landlord’s evidence, that set out the rent due date and the date of payment. The Member found that the tenant understood that the landlord applied her payments to her oldest arrears first, in accordance with generally accepted accounting principles. He also found that she had not been at a zero balance in terms of the rent payable for the unit since June 2015. He considered her payment history, her past arrears and her evidence of employment difficulties and determined that a prompt payment plan would not likely succeed and would cause the landlord further prejudice. He therefore concluded that her tenancy should be terminated but that pursuant to s. 83(2) of the Act, it would not be unfair to postpone the eviction to July 15, 2016.
[4] The tenant brings a motion to introduce fresh evidence. The fresh evidence does not meet the R. v. Palmer, [1980] 1 S.C.R. 759 test for fresh evidence. As noted above, the Member made a finding of fact that the landlord’s statement of accounts were presented and in satisfactory form at the hearing; those accounts are not fresh evidence. The information about the tenant’s subsequent rental payments did not exist at the time of the decision and could not have affected the result. The information about her dental payments is not relevant. The fresh evidence motion is dismissed.
[5] An appeal from the Landlord and Tenant Board lies to the Divisional Court, but only on a question of law (s. 210(1) of the Act). The standard of review on the Board’s interpretation of its home statute, the Act, is reasonableness: First Ontario Realty v. Deng, 2011 CarswellOnt 244 (C.A.), paras. 17 and 21.
[6] Most of the tenant’s arguments on appeal relate to the Member’s alleged mischaracterization of what rent payments she made, where those payments were applied and whether she was late in making these payments. Those are questions of fact that are not subject to appeal. Further, they were based on the Member’s preferring the evidence of the landlord to that of the tenant. There is no basis to interfere with those findings.
[7] The tenant submits that the Board erred in law by refusing to accept her testimony about the landlord’s conduct on the basis that the remedies afforded in s. 82 of the Act did not apply in this case. She submits that this evidence was relevant to the circumstances the board must consider under s. 83 to determine whether to grant or refuse the termination order. We reject this submission. The Member was correct that s. 82 did not apply in this case since the landlord’s Notice of Termination was given under s. 58, not s. 59, of the Act.
[8] Further, the Member was alive to the application of s. 83 and indeed postponed the eviction order by several weeks under s. 83(2). He gave ample opportunity for the tenant to present her evidence, including evidence as to the context of her relationship with the landlord, and considered that evidence in granting, but postponing, the order under s. 83. Further, we see nothing in the record before him or indeed in the fresh evidence the tenant seeks to introduce that would have triggered the application of s. 83(3) in any event. This case is distinguishable from the case of Blaker v. Chan, 2013 ONSC 6331 in which there had been an explicit finding of a serious breach by the landlord that required an explanation from the Board as to why the mandatory provisions of s. 83(3) did not apply.
[9] The tenant submits that she was denied natural justice and that the Member fettered his discretion in refusing to allow her to present all of her evidence and failing to allow her to make a prompt payment plan. When a party alleges a denial of natural justice, there is no standard of review.
[10] There is nothing in this record that supports the tenant’s argument that procedural fairness was not provided by the Member. As noted above, the Member gave the tenant ample opportunity to present her evidence, at times over the objection of the landlord’s representative. He gave her the opportunity to present evidence as to the context of her relationship with the landlord. He asked her numerous times whether she had more to add.
[11] We see no merit to the tenant’s submission that the Member’s determination that a prompt payment plan would not be workable under the circumstances constituted a fettering of his discretion.
[12] The appeal is dismissed.
C. HORKINS J.
[13] The Appeal Book and Compendium has been endorsed as follows: “This appeal is dismissed for oral reasons provided today. The Respondent seeks costs of this appeal at $5,500. Costs should be fair and reasonable. We fix the Respondent’s costs at $1,500 all-inclusive and order the Appellant to pay this amount to the Respondent. Approval of the draft order by the Appellant is waived.”
___________________________ CONWAY J.
I agree
C. HORKINS J.
I agree
LeMAY J.
Date of Reasons for Judgment: April 16, 2018
Date of Release: April 18, 2018
CITATION: Capreit Limited Partners v. Graff, 2018 ONSC 2470
DIVISIONAL COURT FILE NO.: 336/16
LTB NO.: TSL 73361-16 DATE: 20180416
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, CONWAY and LeMAY JJ.
BETWEEN:
CAPREIT LIMITED PARTNERS
Respondent
– and –
MARIE GRAFF
Appellant
ORAL REASONS FOR JUDGMENT
CONWAY J.
Date of Reasons for Judgment: April 16, 2018
Date of Release: April 18, 2018