CITATION: Bernard v. Taylor, 2018 ONSC 4390
COURT FILE NO.: DC-17-63
DATE: 2018-07-16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
BERNARD PROPERTY MAINTENANCE
Caitlin W. McIntyre, for the Landlord/Applicant (Respondent in Appel)
Landlord/Applicant (Respondent in Appeal)
- and -
PAUL TAYLOR
Self-represented
Tenant/Respondent (Appellant)
HEARD: July 13, 2018, at Brampton, Ontario
Price J.
Reasons For Order
OVERVIEW
[1] Bernard Property Maintenance (“BPM”) applied to the Landlord Tenant Board (“the Tribunal”) for an Order terminating the lease of Paul Taylor (“Mr. Taylor”) of a residence at 52 Swift Crescent in Guelph, Ontario (“Swift Crescent”), and for an order evicting Mr. Taylor for non-payment of rent, among other reasons. On the day of the hearing, Mr. Taylor telephoned the Tribunal, saying that he was unable to attend due to medical conditions, including chronic fatigue, and requesting an adjournment. According to Mr. Taylor, he was told that the Tribunal does not allow tenant’s requests for adjournment, and that if he did not attend, his remedy would be to ask the Tribunal to reconsider its decision.
[2] The Tribunal proceeded with the hearing in Mr. Taylor’s absence and made the Order requested by BPM. Mr. Taylor later asked the Tribunal to reconsider its decision. The Tribunal, after reconsidering, confirmed its original decision. Mr. Taylor now appeals to this Court from the Tribunal’s two decisions, principally on the ground that his rights as a person with a disability were infringed by the Tribunal’s failure to accommodate his disability by granting him the adjournment.
[3] BPM seeks an Order dismissing the Tenant’s Appeal on the following grounds:
(a) Mr. Taylor has failed to perfect his appeal within the time required by the Rules;
(b) Mr. Taylor’s appeal discloses that it has no merit; and
(c) Mr. Taylor has failed to comply with the conditions imposed by McSweeney J. in an Order dated February 22, 2018, dismissing an earlier motion to dismiss the appeal.
[4] BPM additionally moves for an Order adding Just FK Investors Inc. (“JFK”) as Landlord/Applicant, (Respondent in this Appeal), or substituting JFK for BPM, as BPM was formerly JFK’s property management company and agent, and, with JFK, a signatory of the parties’ lease, but was replaced in November 2017 by K-W Property Corp., another property management company.
BACKGROUND FACTS
[5] Francis Theriault resides in Charlottetown, Prince Edward Island. He is the principal of JFK, which is the owner and landlord of Swift Crescent. JFK operates outside the Province of Ontario and therefore relies on agents to manage its Ontario-based properties, including Swift Crescent.
[6] BPM was JFK’s agent for Swift Crescent from 2014 until November 2017, when it was replaced by K-W Property Corp.
[7] Mr. Taylor entered into an agreement with JFK and BPM on August 29, 2014, to rent Swift Crescent, beginning September 7, 2014, for a rent of $1,425 per month, payable on the 1st day of each month. Beginning in September, 2014, Mr. Taylor paid his rent through a third-party service provider known as Tenant Pay. Tenant Pay is a company specializing in online payment and electronic transfer-based services for landlords and tenants.
[8] BPM served Mr. Taylor with two notices dated May 16, 2017, to end his tenancy, the first being in form N4: “Notice to End your Tenancy for Non-payment of Rent” and the second being in form N8: “Notice to End your Tenancy at End of the Term” on the ground of persistent late payments of rent. When the Notices were served, Mr. Taylor had not paid his rent in the amount of $1,425 for May, 2017.
[9] On June 7, 2018, BPM served and filed a form L2: “Application to End a Tenancy and Evict a Tenant” and a form L1: “Application to Evict a Tenant for Non-Payment of Rent and to Collect Rent the Tenant Owes”. On the date the Applications were filed, Mr. Taylor had failed to pay rent for May or June, 2017.
[10] After the Applications were filed, A Notice of Hearing dated June 12, 2017, was sent to all parties, indicating that the Applications would be heard on Monday, July 17, 20178. The Notice stated that, if the tenant failed to attend the hearing or send someone in his place, the Board may hold the hearing without him and make a decision regarding the Landlord’s claims in his absence.
[11] BPM’s agent attended the hearing on July 17, 2017, as agent for the Landlord, JFK. When the hearing began at 10:38 a.m., Mr. Taylor was not in attendance. BPM’s witness testified before the board member, Mr. M. Soo, regarding Mr. Taylor’s late and non-payment of rent. At the conclusion of the hearing, Board Member Michael Soo made a determination in favour of BPM and the Landlord, JFK.
[12] On the day after the hearing, the Tribunal issued an Order #SOL-82913-17, dated July 18, 2017. The Order acknowledged that Mr. Taylor had called the Tribunal on the morning of the hearing to advise that he would not be in attendance. The Order noted that there are processes at the Tribunal for adjournments, requesting a rescheduled hearing, or for selecting and sending an agent to a hearing on the tenant’s behalf, and that Mr. Taylor had failed to employ himself of any of those processes for the July 17, 2017, hearing.
[13] On July 25, 2017, the Tribunal conducted a review of the July 18, 2017, Order. It then issued a further Order, #SOL-82913-17-RV, dated July 25, 2017, confirming its original Order. In the second Order, Board Member Sylvie Charron noted that Mr. Soo had given complete reasons as to why an adjournment was not granted on July 17, 2017, and held that the Order was a reasonable exercise of his discretion.
[14] The Tribunal’s Orders directed the Sheriff to evict Mr. Taylor and required Mr. Taylor to pay back-rent owing for Swift Crescent.
[15] Mr. Taylor served a Notice of Appeal on BPM on July 27, 2017, together with the Appellant’s Certificate Respecting Evidence. As a result of filing his Appeal, Mr. Taylor was automatically granted a certificate of stay regarding Orders #SOL-82913-17 and #SOL-82913-17-RV.
[16] As of the date when Mr. Taylor served and field his Notice of Appeal, he had not paid his rent for July, 2017. After filing the Notice of Appeal and Certificate Respecting Evidence, Mr. Taylor failed to pay his rent for the months of August, September, October, November, and December, 2017. BPM therefore made a motion to dismiss Mr. Taylor’s appeal.
[17] When BPM’s motion to dismiss Mr. Taylor’s appeal was heard on February 2, 2018, the transcript of the hearing before the Tribunal had not yet been completed. Although BPM submitted that Mr. Taylor had failed to pay his rent for the months of August to December, 2017 and in January and February, 2018, Mr. Taylor asserted that he had paid his rent from August to December, 2017, and that he had only ceased paying rent as of January, 2018. Mr. Taylor produced no evidence that he had, in fact, paid his rent from August to December, 2017.
[18] McSweeney J. dismissed BPM’s appeal, on terms. Justice McSweeney ordered Mr. Taylor to perfect his appeal in accordance with the rules and to pay the rent for January and February, 2018, by February 9, 2018, and that he pay all future rent as it came due, on time, as of the first of each month. BPM submitted a draft Order based on McSweeney J.’s endorsement, but had not received a signed and entered Order by July 13, 2018, when the present motion was heard.
[19] The transcript of the hearing before the Tribunal was completed by the Court Transcriptionist Tracy Gaziotto on February 6, 2018. Mr. Taylor confirmed at the hearing of this motion that he was notified of the completion of the transcript on the same date. He stated that he received the transcript by courier on about February 8, 2018. The Rules required Mr. Taylor to perfect his appeal within 60 days after being notified that the transcript was completed. In other words, he was required to perfect his appeal by April 6, 2018.
[20] On April 13, 2018, Mr. Taylor served BPM with his Appeal Book and compendium, a Factum, and a Book of Authorities by delivering them to Caitilin W. McIntyre, a lawyer with the firm Goad and Goad LLP, BPM’s lawyers of record in the appeal. The material disclosed the following deficiencies:
(a) The Appeal Book did not contain any affidavit and or any evidence of his alleged disability or needs for accommodation.
(b) The Appeal Book did not contain copies of the two Orders of the tribunal being appealed, being Order #SOL-82913-17-RV and #SOL-82913-17.
(c) Mr. Taylor did not include the transcript of the hearing before the Tribunal.
[21] On April 13, 2017, Mr. Taylor advised Goad and Goad LLP that his appeal would be heard on April 15, 2018, the same date as a Notice of Constitutional Question. He gave no indication that he had not perfected his appeal.
[22] On June 12, 2018, after serving BPM’s materials on the Tribunal, Goad and Goad LLP was advised by counsel for the Tribunal that they had never been served with Mr. Taylor’s appeal material. When Goad and Goad LLP tried to file BPM’s responding material, this Court refused the material as Mr. Taylor had not filed his Certificate of Perfection and no court date had been set for the hearing of the appeal.
[23] As of July 13, 2018, when this motion was heard, Mr. Taylor still had not filed his Certificate of Perfection of his appeal. As of June 27, 2018, when BPM’s lawyer swore to its Affidavit in support of its motion to dismiss the appeal, Mr. Taylor also had failed to pay his rent for the five months from August to December, 2017 and for June and July, 2018. He had paid his rent late in March, April, and May, 2018.
ISSUES
[24] This Court must determine whether Mr. Taylor’s appeal should be dismissed on the ground of delay or on the ground that it discloses no merit, or on the ground of Mr. Taylor’s breach of this Court’s Order dated February 2, 2018.
PARTIES’ POSITIONS
[25] BPM submits that Mr. Taylor’s appeal should be dismissed on the following grounds:
(a) He has failed to perfect his appeal within the time required by the Rules;
(b) His material discloses that his appeal has no merit; and
(c) He has failed to comply with the conditions imposed by McSweeney J. in an Order dated February 22, 2018, dismissing an earlier motion to dismiss the appeal.
[26] Mr. Taylor submits that his failure to comply with the Rules, and with the Order of McSweeney J., results from the fact that he is representing himself and is unfamiliar with the Rules. He submits that his appeal has merit, but has tendered no evidence to support this assertion, which he also attributes to the fact that he is self-represented. He submits that he has paid his rent, but has not tendered any evidence to rebut BPM’s evidence that he is in arrears seven months of rent, and has paid rent for the other months late, in breach of McSweeney J.’s Order.
ANALYSIS AND EVIDENCE
[27] A court hearing a motion to dismiss an appeal should consider the length of the delay, the prejudice to the respondent, the merits of the appeal, and the justice of the case.[^1]
Delay
[28] Rule 61.08(1) and (3) require an Appellant to serve on all parties and file with the Registrar an Appellant’s Appeal Book and Compendium, an Exhibit Book, a Factum, a Book of Authorities, any transcripts of evidence, and a Certificate of Perfection.[^2] Where a transcript is required, the Appellant has 60 days after receiving a completed transcript in order to perfect his Appeal.
[29] It has been almost a full year since Mr. Taylor filed his Notice of Appeal. It has been almost five months since he received the completed transcript of the hearing from July 17, 2017. It has been almost three months since he served his appeal materials on BPM.
[30] Absent satisfactory explanation for a delay in perfection, where there is no clear question of law or the appeal otherwise appears to be without merit, it is reasonable for this Court to use its authority to grant an administrative dismissal due to the delay in perfecting the appeal.[^3]
[31] Mr. Taylor acknowledged that as of July 13, 2018, when this motion was heard, and more than three months after he received the transcript, he still had not filed a Certificate of Perfection. It is not always in the interest of justice to quash an appeal on administrative grounds based on a failure to perfect where the appellant is genuinely not familiar with the requirement to perfect.[^4] This is not the case in the present appeal, where the issue of perfection was addressed with Mr. Taylor at length at the hearing on February 2, 2017, before McSweeney J.
[32] I do not accept Mr. Taylor’s explanation of his default. Based on his continued non-payment of rent, I find that it is more likely that he has delayed perfecting his appeal in order to delay the hearing of the appeal, and prolong the period when he is able to reside at Swift Crescent without paying rent.
Absence of merit to the appeal
[33] In order for an appeal of a decision of the Tribunal to have merit, it must be based on a ground of law. The Divisional Court is not a venue where a Tenant is entitled to have the facts of his case re-litigated. In the present case, where the Tribunal has found as a fact that Mr. Taylor repeatedly failed to pay his rent, and that finding of fact was within the scope of its authority and jurisdiction, an appeal based on a dispute of that fact has no merit.[^5]
[34] Mr. Soo’s determination with respect to late and non-payment of rent was a finding of fact. The Residential Tenancies Act, 2006 (“RTA”) does not require that specific evidence be presented at hearings for Applications brought due to non-payment or consistent late payment of rent. The RTA gives broad authority to the Tribunal to make rulings on applications for eviction, so long as the Tribunal considers all of the circumstances before exercising its authority. The Tribunal considered Mr. Taylor’s accommodation request and his history with the Tribunal before issuing its Order for eviction and for payment of back rent. Ms. Charron considered the Contents of Mr. Taylor’s Request to Review an Order, in light of all of the circumstances, before using her discretion to affirm the eviction Order.
[35] None of the specified circumstances in s. 83(3), (4), and (5) of the RTA, “Mandatory refusal to grant Order” apply to Mr. Taylor’s case.
[36] The Human Rights Code provides:
11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances…
(…)
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.[^6]
[37] There is no evidence in the material before me to support a finding that the Tribunal discriminated against Mr. Taylor on the ground of alleged disability by failing to adjourn the July 17, 2017, hearing. Mr. Taylor does not have an absolute right to a specific, preferred form of accommodation.[^7] The duty to accommodate requires reasonable accommodation that meets the complainant’s needs, not to provide the particular form of accommodation demanded by the claimant.
[38] The Tribunal offered accommodations that would have met Mr. Taylor’s specific needs, and Mr. Taylor did not avail himself of them. Where an individual refuses to accept an offer for an accommodation that is reasonable in the circumstances, the duty to accommodate is discharged.[^8]
[39] The Tribunal offered the accommodation of entertaining a request for a rescheduled hearing, or selecting and sending an agent to a hearing on the tenant’s behalf. The issue is not whether those accommodations were exactly what Mr. Taylor wanted or preferred, or whether they were ideal, or whether some other accommodation would have been equally appropriate. The issue is whether Mr. Taylor’s needs for reasonable accommodation were met.[^9]
[40] Mr. Taylor offered no evidence that he would not have been able to attend the hearing himself to argue for an adjournment on the ground of disability, or reschedule the hearing for another date, or send someone else in his place. He did not tender any evidence to support his assertion that he was unable to make use of the standard procedures for accommodation that the Tribunal made available.
[41] To make out a claim of discrimination pursuant to the Canadian Charter of Rights and Freedoms (“the Charter”), Mr. Taylor must offer evidence of membership in a group that is protected under an enumerated ground of discrimination, show differential treatment, establish a connection between the differential treatment and the membership in the protected group, and assert an impact on his rights under the Charter.[^10]
[42] Mr. Taylor listed a number of his rights under the Charter, as well as under Ontario’s Human Rights Code, but has not offered any evidence to establish how his membership under one of the enumerated grounds of discrimination is connected to an act of exclusion. He must show evidence of the specific needs related to his disability, and then a nexus to show how those needs could only have been accommodated by the Tribunal granting his request for an adjournment.
[43] Mr. Taylor has failed to present cogent evidence establishing a prima facie case of discrimination. The burden of proof in establishing a prima facie case rests initially with the claimant until a prima facie case of discrimination has been established. Only then does the burden shifts to the respondent.[^11]
Breach of McSweeney J.’s Order dated February 2, 2018
[44] Mr. Taylor has breached the Order of McSweeney J. dated February 2, 2018, by failing to pay his rent from August to December, 2017, and for June and July, 2018. He is currently $9,975 in arrears of his rent to Just K F Investors for seven months.
[45] Bob Doyle of Tenant Pay conducted a search to attempt to locate the payments Mr. Taylor says he made. He was unable to find any evidence of the payments. He provided the results of his search to Mr. Theriault, who provided them to Goad and Goad LLP, which wrote to Mr. Taylor for an explanation. Mr. Taylor advised that he had spoken to his Bank and had been informed that his payments had gone through. When asked to provide evidence from the Bank to support his assertion, he failed to provide it.
[46] In his appeal material, Mr. Taylor also has not produced any evidence to support his assertion that he paid rent from August to December, 2017, or in June or July, 2018.
CONCLUSION AND ORDER
[47] For the foregoing reasons, it is ordered that:
The title to the present proceeding shall be amended to include Just K F Investors Inc. as a Respondent in the appeal, court file no. DC-17-63.
Mr. Taylor’s appeal, court file no. DC-17-63, is dismissed for delay on the ground of his failure to perfect the appeal, pursuant to Rule 61.13(1) and (3) of the Rules of Civil Procedure.
Mr. Taylor’s appeal is dismissed on the ground that it is manifestly devoid of merit, frivolous and/or vexatious pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure.
The Tribunal’s Order #SOL-82913-17-RV and Order SOL-82913-17 are affirmed.
The stay of Order #SOL-82913-17-RV and Order $SOL-82913-17 are lifted and Mr. Taylor is ordered to vacate the premises at 52 Swift Crescent in Guelph.
Mr. Taylor shall pay back-rent, in the amount of $9,975 for the seven months August to December, 2017, and June and July, 2018, and pre-judgment interest on the amount of $2,869.39, as set out in Order #LOL-82913-17, set at 2.00% per year from August 1, 2017.
Mr. Taylor shall pay any outstanding rent owing since July, 2018, up to the date when he surrenders possession of the premises.
Mr. Taylor shall pay the costs of the Respondents in this appeal, fixed in the amount of $2,178.85 plus H.S.T.
Price J.
Released: July 16, 2018
CITATION: Bernard v. Taylor, 2018 ONSC 4390
COURT FILE NO.: DC-17-63
DATE: 2018-07-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BERNARD PROPERTY MAINTENANCE
Landlord/Applicant (Respondent in Appeal)
- and –
PAUL TAYLOR
Tenant/Respondent (Appellant)
REASONS FOR ORDER
Price J.
Released: July 16, 2018
[^1]: Sikova v. Timbercreek Asset Management Inc., 2016 ONSC 3975, para. 21
[^2]: Rules of Civil Procedure, RRO 1990, Reg. 194
[^3]: Lane v. McGill, 2009 ON SCDC, para. 3
[^4]: CIBC Mortgages Inc. v. Monaghan, 2010 ONSC 2000, para. 4
[^5]: Spirleanu v. Transglobe Property Mgmt. Services, 2010 ONSC 5646, para. 406
[^6]: Human Rights Code, RSO 1990, c H.19
[^7]: Tekano v. Canada (A.G.), 2010 FC 818, para. 40; Smith v. Canadian National Railway, 2008 CHRT 15, para. 269
[^8]: Smith v. Canadian National Railway, supra, para. 269
[^9]: Schafter v. Toronto District School Board, 2010 HRTO 403,, para. 16
[^10]: Ont. Human Rights Comm. v. Simpsons-Sears, 1985 18 (SCC), [1985] 2 SCR 536, para. 18, (SCC), para. 28; Moore v. British Columbia (Education), 2012 SCC 61, 3 SCR, para. 33; Quebec (CPDJ) v. Bombadier Inc., 2015 SCC 39, 2 SCR, paras. 42, 52, 53, and 98
[^11]: Ont. Human Rights Comm v. Simpsons-Sears, supra, para. 17, (SCC), para. 28; Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32, para. 66