Shelly Burton v. Betty Simmons, 2018 ONSC 3484

CITATION: Burton v. Simmons, 2018 ONSC 3484

DIVISIONAL COURT FILE NO.: DC-17-853 DATE: 2018-06-04

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Conway, Varpio and Myers JJ.

BETWEEN:

Shelly Burton Tenant/Appellant

– and –

Betty Simmons Landlord/Respondent

Lea Nebel and Stephen Gaudreau, for the Tenant/Appellant Ashley Gibson, for the Landlord/Respondent

HEARD at Hamilton: June 4, 2018

VARPIO J. (Orally)

1This is an appeal from an order of the Landlord and Tenant Board made on February 7, 2017 and the review order of May 18, 2017. The tenant/appellant entered into a lease with the respondent/landlord commencing August 1, 2015. The lease was a “Standard Form Lease” that also included the following provision:

“the following services and facilities are the responsibility of the Lessee:

____ None

“X” Other (Specify)

janitorial services {snow shoveling, clean stairway

• laundry room, put garbage@curb, etc.

Rent $600 + (Hydro to be paid by tenant)”

2The landlord terminated the tenant’s employment on October 26, 2016 and, pursuant to Section 93 of the Residential Tenancies Act, 2006 S.O. 2006, c.17 (the “Act”), required the tenant to vacate the apartment.

3The tenant made an application to the Landlord and Tenant Board claiming that she was not a superintendent and, as such, the provisions of Section 93 of the Act did not apply to her. The Board Member, Mr. Sean Henry, found that the tenant/appellant was employed by the landlord/respondent as a superintendent.

4The tenant appeals the decision on two grounds:

1. She claims that her rights to natural justice and a fair hearing were denied by the Member; and

2. She claims that Member Henry made an error in law when:

(a) he failed to consider Section 83(3) of the Act and;

(b) he determined that there was an employment relationship as between the landlord and tenant.

5For the following reasons, we dismiss the appeal.

Natural Justice

6There is no standard of review for an alleged denial of natural justice. However, we find that the Member afforded procedural fairness to the appellant, even as we instruct ourselves on the Ontario Court of Appeal's concerns regarding self-represented litigants in Toronto Dominion Bank v. Hylton, 2010 ONCA 752 at para 39.

A. Inability to Cross-Examine the Landlord

7In this case, the landlord was not present at the tribunal and the landlord’s representative testified. Member Henry ultimately found that an employment relationship existed based upon the clause in the tenancy agreement regarding the lessee’s obligations. The appellant gave her oral testimony that she was not an employee, which was not accepted by the Member in light of the language in the lease. The appellant has not provided any reason to us as to why the cross-examining the landlord would have assisted her position beyond the oral testimony she had already provided.

B. The Member interrupted the tenant

8The appellant suggests that the Member unfairly interrupted the tenant in the Board hearing, such that she could not fairly present her case and her submissions were impeded. A review of the record confirms that the Member enabled the tenant to present her case as it pertained to the relevant issues and directed the tenant to the key issues and kept her on track. We see no error in this approach.

C. The Member refused to admit relevant evidence without first considering it

9The appellant contends that the Member failed to allow her to adduce evidence of her allegedly gratuitous work at previous tenancies so as to support her position that her current efforts in removing garbage, etc. were merely done out of the “goodness of her heart”, and not as compensation for work as a superintendent.

10There was no procedural unfairness in the Member refusing to admit this evidence. First, while the tenant may have previously done work out of the “goodness of her heart”, the tenancy in question was governed by a lease agreement that set out her specific duties. Second, the landlord was not a party to the previous tenancies. Finally, the Member considered the tenant's oral testimony that she had previously done work out of the "goodness of her heart", but he gave it little weight in light of the express terms of the lease.

Alleged errors of law

A. Did the Member consider Section 83(3) of the Act?

11The tenant/appellant suggests that the Member’s reasons were insufficient in terms of considering Section 83(3) of the Act. We disagree. The Member was alive to the application of Section 83. He had before him evidence of the tenant's complaints regarding the landlord's management of the premises. He referred to Section 83(2) which requires that the Board, "not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its power under (1)".

12Section 83(3) states:

Without restricting the generality of (1) the Board shall refuse to grant the application where satisfied that…

13The subsection then lists certain specifically enumerated circumstances.

14In his reasons, the Member indicated that he "considered all of the disclosed circumstances in accordance with Subsection 83(2) and finds that it would not be unfair to postpone the eviction."

15Sufficiency of reasons does not demand that a member enumerate every subsection and describe its impact. It is clear from the entirety of the reasons that the Member considered whether to extend or truncate the tenancy and, based upon his finding of the tenant being a superintendent, he chose not to extend same. Inherent in this finding is consideration of the related Subsection 83(3) which would have caused the Member to refuse the application.

B. Was Burton a superintendent?

16The Member found the tenant to be a superintendent based upon the facts presented. Specifically, the Member relied upon the terms of the Lease Agreement whereby the tenant performed certain employment-like duties as part of the Lease Agreement. Section 210(1) of the Act provides that an order of the Board may be appealed to this Court but only on a question of law.

17The determination of employment by tenant as a superintendent is at best a question of mixed fact and law: Fedorchuk v. 72056 Ontario Limited, 2016 ONSC 207, at para. 9.

18Therefore no appeal from that determination lies to this Court.

Conclusion

19As a result of the foregoing, the appeal is dismissed.

CONWAY J. ENDORSEMENT

20For oral reasons delivered in Court today, the appeal is dismissed.

21Costs payable to the respondent on a partial indemnity basis in the amount of $1500, all inclusive, which we consider reasonable under the circumstances, considering the Rule 57.01 factors and the reasonable expectations of the appellant and the principle of proportionality.

___________________________ Varpio J.

I agree

Conway J.

I agree

Myers J.