CITATION: Deschenes v. District Realty Management, 2018 ONSC 4891
COURT FILE NO. : 18-DV-2388
DATE: August 14, 2018
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Anne Deschesne
Appellant/Respondent
– and –
District Realty Management
Respondent/Moving Party
Self-represented
David Lyman, Counsel for the Respondent/Moving Party
HEARD: August 10, 2018
JUSTICE SALLY GOMERY
[1] This is an appeal by Anne Deschenes from an order by the Landlord and Tenant Board (the “Board”) on April 2, 2018, evicting her from her apartment (the “Order”). The landlord, District Realty Management (“District”) is asking for the Court to quash Ms. Deschenes’ appeal or, in the alternative, to lift the stay of the Board’s Order.
[2] Ms. Deschenes began renting an apartment in a 45-unit building on Carling Avenue in Ottawa from District in September 2016. In November 2016, District began receiving numerous complaints from other tenants about yelling, screaming and banging in Ms. Deschenes’ unit. The complaints about noise and other disruptive conduct by Ms. Deschenes continued despite District’s notice to her that it must stop. District accordingly applied to the Board to get an eviction order. District’s application, as well as further eviction applications filed in the meantime, were heard together on December 5 and 6, 2017.
[3] In its April 2, 2018 decision on the applications, the Board held that evidence supported District’s allegations about Ms. Deschenes’ disruptive behaviour. In her reasons, Sylvie Charron, the Vice-Chair of the Board, concluded that:
The Tenant’s disabilities are not the reason the Landlord seeks to have the Tenant relocate; rather, it is the fact that the Tenant cannot live with other tenants in a residential complex, as she substantially interferes with the reasonable enjoyment of the complex by the other tenants and the Landlord, and this despite all attempts to accommodate her. There is no possibility of preserving the essence of the tenancy in this case as the Tenant constantly frustrates any attempt to accommodate her.
[4] As a result, the Board ordered Ms. Deschenes to move out of her rental unit by no later than April 30, 2018.
[5] After the Order was issued, a lawyer representing Ms. Deschenes asked District for an extension to the eviction deadline so that she could find a new place to live, failing which she would appeal the Order. District agreed to give her until May 31, 2018. After District agreed to extend the deadline, Ms. Deschenes filed her appeal to this Court on April 25, 2018. This automatically stayed the eviction Order until the appeal was resolved or the stay was lifted by order of this Court.
Request for adjournment
[6] At the beginning of the hearing today, Ms. Deschenes asked for an adjournment. She has submitted a letter dated August 2, 2018 as well as a note from a nurse practitioner dated October 3, 2017 and a note from a physician dated December 13, 2017. According to these medical notes, Ms. Deschenes has severe anxiety, agoraphobia, and environmental sensitivity with respiratory involvement. These notes were apparently the basis for her seeking prior adjournments of other hearings. Ms. Deschenes also says that she has memory issues and hearing issues, and that a new lawyer is waiting for a Legal Aid certificate and so has not yet got on the record for her.
[7] Based on the evidence produced, I denied the adjournment request. I gave oral reasons for this decision, but think it is appropriate to record them again here.
[8] The medical notes do not establish that Ms. Deschenes has been unable to prepare for this hearing. At most, they establish that she could physically attend this hearing. The Court accommodated this by permitting Ms. Deschenes to participate today by teleconference. More than four months has passed since the Board’s deadline for her to move out, and District’s motion to quash the appeal was served on Ms. Deschenes on June 20, 2018. She has had ample time to prepare submissions. There has not presented any more recent medical evidence in support of her request for an adjournment.
[9] Ms. Deschenes has furthermore not established that proceeding today has deprived her of any ability to obtain or benefit from legal advice. She has not filed any evidence supporting her assertion that she is on the point of getting new counsel. No counsel was present at the hearing today saying that they were awaiting a legal aid certificate. She has clearly had legal assistance. A lawyer acting for her, Mr. Heard, sent the letter to District seeking an extension of the Board’s April 30 deadline. Mr. Heard also communicated with the court on Ms. Deschenes’ behalf as late as last week.
[10] Finally, Ms. Deschenes is familiar with the proceedings at issue. She was evicted from her previous apartment on February 5, 2016, and appealed the Board’s order in that case just as she has here.
[11] I must also consider the impact of the requested adjournment on the other party, District. If I granted the adjournment, I would effectively be denying part of the relief it seeks, because the stay of the eviction Order would remain in place for the time being. In the meantime, based on the affidavit of District’s residential property manager Kimberley Armstrong on June 13, 2018, Ms. Deschenes continues to disturb other tenants. As a result, District is concerned that some of the other residents may leave. There is therefore prejudice to District if this motion is postponed to some unspecified date in the future.
[12] For all of these reasons, Ms. Deschenes did not persuade me that an adjournment should be granted.
Has District established that this appeal is frivolous, vexatious and without merit?
[13] Under section 210 of the Act, any person affected by an order of the Board may appeal it to the Divisional Court within 30 days, but only on a question of law.
[14] Under s. 134(3) of the Courts of Justice Act, a court to which an appeal is taken may quash the appeal in a “proper case”. A “proper case” is where there is no question of law raised and the appeal is manifestly without merit; Jericho Investments Inc. v. Rankel, [2000] O.J. No. 3880 (SCJ), at para. 4; White Spruce Apartments v. Anne Deschenes, 2016 ONSC 5058 (SCJ), at para. 10.
[15] In her notice of appeal of the eviction Order, Ms. Deschenes sets out three grounds of appeal. First, she alleges that the Board member who presided at the hearing did not give her an opportunity to reasonably participate in it. Second, she says that the Board Member did not carry out the mandatory review required under section 83(2) of the Residential Tenancies Act, 2006 (the “Act”). Third, she raises “further and other grounds of appeal as this Court may permit counsel to raise after receiving and reviewing the transcript at the trial”.
Ms. Deschenes’ participation in the Board’s hearing
[16] Ms. Deschenes complains both that she was not given an adequate opportunity to prepare for the hearing, and that she was not able to respond meaningfully to District’s case.
[17] I do not intend to go over the entire chronology that led to the December 2017 hearing. Suffice it to say that I am satisfied that the Board took reasonable steps to accommodate Ms. Deschenes’ medical conditions prior to December 5, 2017. There is no evidence that it denied any reasonable request by Ms. Deschenes, either for more time or for special arrangements for attendance.
[18] In December 2016, in response to District’s first application, Ms. Deschenes filed her own application alleging that living in her apartment had become unbearable and that she would have to leave urgently if District did not accommodate her. A hearing of both applications was set before the Board on March 6, 2017, but was adjourned at Ms. Deschenes’ request. The Board issued interim orders to accommodate Ms. Deschenes’ medical conditions. A mediation/case management session was supposed to take place on April 27, 2017, but Ms. Deschenes failed to show up. A hearing on the merits was rescheduled for May 29, 2017. On that date, Ms. Deschenes withdrew her tenant application and the parties tried to settle their dispute. These events, as well as a shortage of Board members and the departure of Ms. Deschenes’ lawyer from the record, delayed the hearing on the merits by many months.
[19] At the hearing itself, Ms. Deschenes was accompanied by a social worker and two other support people. The Board delayed the start of the hearing for over an hour to give Ms. Deschenes time to consult with duty counsel. Ms. Deschenes said that, due to her severe anxiety, she would like to give her evidence first, because she did not want to be at the hearing when District presented its evidence. The Board allowed this. It also issued an interim order on December 5, 2017 allowing Ms. Deschenes to obtain the recording of the Board’s entire hearing in order to prepare written submissions based on all of the evidence. After giving her evidence, Ms. Deschenes remained at the hearing during most of the testimony of District’s witnesses. She did not however choose to cross-examine any of them.
[20] After the hearing, the Board’s interim order gave Ms. Deschenes until December 20, 2017 to make written submissions. She filed a 14-page document on that date. After District responded on January 11, 2018, Ms. Deschenes filed a further 44 pages of submissions. She has since sent other written submissions to the Board. In its decision in April 2018, the Board said that it had taken all of these submissions into account.
[21] Neither party has produced a transcript of the hearing. Ms. Deschenes does not allege, however, that she was denied an opportunity to present evidence at the hearing. Her complaint is rather that her medical conditions were not accommodated in the way the hearing was scheduled. Her note from Dr. Scott dated December 13, 2017 states: “Unable to attend trial for severe anxiety and environmental allergies, and agoraphobia. Difficulties in finding a psychiatrist has extended these issues.” This note does not appear to relate to the Board hearing, since it was written a week later. It does therefore not establish that Ms. Deschenes was unable to attend a hearing on December 5 and 6, 2017. Had she been unable to do so, she would have presumably obtained a physician’s note to that effect to present at the beginning of the hearing. Instead, she attended at the hearing and requested various accommodations, all of which were granted.
[22] Having reviewed all of these events, I find that there was no error of law for the Board to conduct its proceeding as it did, and that Ms. Deschenes had ample opportunity to participate. She had, in fact, over a year to get ready for the hearing. The beginning of the hearing was delayed so that she could consult counsel. She was allowed to present her evidence first. She had a chance to cross-examine District’s witnesses but did not do so. She was given a reasonable time to make written submissions, and in fact made many more submissions than the Board’s December 5, 2017 interim order provided for. Most of these submissions focussed on the same complaint that Ms. Deschenes is making now, in her appeal: that she did not have a chance to participate fully in the hearing.
[23] At the hearing of this motion, Ms. Deschenes also alleged that the presiding member of the Board undertook to give her a transcript of the hearing as opposed to a tape. The Board’s interim order mentions only that she is entitled to a recording. Furthermore, although she has since obtained a transcript, Ms. Deschenes has not provided the Court with an excerpt that supports her assertion that she was promised anything more. There is also no medical evidence that would support her claim that she needed a transcript rather than a recording due to memory problems. I therefore must reject Ms. Deschenes’ contention that she should have received a transcript in order to make final submissions to the Board, and that this was necessary to accommodate her medical issues.
[24] In paragraphs 35 to 39 of its decision, the Board reviewed all of Ms. Deschenes’ allegations that the Board failed to accommodate her and concluded that she had been a full and fair opportunity to participate in the Board proceeding. I agree. I conclude that this ground of Ms. Deschenes’ appeal does not raise any issue of law and is manifestly without merit.
Consideration of section 83(2) of the Act
[25] Section 83 of the Act requires the Board to consider all circumstances in deciding whether or not to order a tenant evicted, and in determining the deadline for the tenant to leave. It states:
(1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
Mandatory review
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[26] In her submissions to the court today, Ms. Deschenes says that the Board did not comply with s. 83 of the Act because it failed to take into consideration District’s obligations under the Ontario Human Rights Code, and because she has now ceased her disruptive conduct.
[27] Having reviewed the evidence and reasons set out by the Board in its April 2, 2018 decision, I cannot identify any errors of law with respect to s. 83(2) of the Act. The Board clearly considered all of the circumstances giving rise to District’s applications as required under s. 83. In fact, the Board cited section 83 in concluding that Ms. Deschenes should be given until April 30, 2018 to move out, so that she could relocate safely.
[28] The Board also specifically addressed Ms. Deschenes’ argument regarding the Ontario Human Rights Code at para. 37 of its decision:
The Board agrees that in providing adjudicative services it must comply with the Ontario Human Rights Code and that the Code applies in this case. This means providing accommodation for individuals with disabilities to ensure equality of access to the hearing process. It also means that the Board must consider whether a Code-protected Ground was a factor in the Landlord’s decision to seek eviction of the Tenant. I find that in the instant case, the Board has gone beyond what is usually considered necessary to accommodate the Tenant.
[29] With respect to Ms. Deschenes’ contention that her disruptive conduct has ceased since the Board’s order, District has filed evidence showing that it was ongoing as of June 13, 2018. Although Ms. Deschenes says otherwise, she has not filed any affidavits or other evidence bearing this out. The only evidence before me shows that she continues to prevent other tenants’ peaceable enjoyment of their apartments.
[30] I conclude that the second ground of Ms. Deschenes’ appeal does not raise any error of law and is manifestly without merit.
Further and other grounds
[31] Ms. Deschenes reserved the right to raise other grounds after receiving and reviewing the transcript of the hearing before the Board.
[32] According to counsel for District, and as acknowledged by Ms. Deschenes at the hearing, the transcript was provided to Ms. Deschenes’ lawyer about four weeks ago. At the hearing today, she suggested that the transcript shows that the hearing was not in accordance with natural justice. She has not however filed the transcript or identified any specific problems beyond what I have already reviewed under the first ground of appeal. I have not identified any denial of natural justice to Ms. Deschenes. On the contrary, I conclude that the Board took significant steps to accommodate her medical conditions.
[33] I agree with the Board’s observation in its March 9, 2017 Interim Order that Ms. Deschenes “has displayed a lack of understanding of Board procedures and her entitlement to accommodation”. The problem is not a lack of willingness by the Board to give her a meaningful opportunity to argue her position. The problem is that she is unhappy with the outcome of the hearing.
[34] This ground, which effectively repeats her earlier arguments, is also devoid of merit.
Conclusion
[35] District’s motion to quash the notice of appeal is granted. In light of this, I do not need to consider its alternative request to lift the stay of the eviction Order.
[36] Ms. Deschenes is no longer entitled to remain in the apartment. The parties agreed to delay the deadline for her to leave only to May 30, 2018. District may therefore elect to require her to vacate immediately, or within a further short deadline, as it wishes.
[37] If District intends to seek costs, it should make a written submission, no longer than three pages in length, along with a cost outline, by August 21, 2018. Ms. Deschenes will have until August 28, 2018 to provide responding submissions, no longer than three pages in length.
Justice Sally Gomery
Released: 2018/08/14
CITATION: Deschenes v. District Realty Management, 2018 ONSC 4891
COURT FILE NO. : 18-DV-2388
DATE: August 14, 2018
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Anne Deschesne
Appellant/Respondent
– and –
District Realty Management
Respondent/Moving Party
REASONS ON MOTION TO QUASH
Justice Sally Gomery
Released: 2018/08/14