CITATION: Prasad v. Tan, 2018 ONSC 5517
DIVISIONAL COURT FILE NO.: 242/18
LANDLORD AND TENANT BOARD FILE NO. TEL-88019-18 and TEL 88019-18RV
DATE: 20180921
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SHU TIAN TAN
Landlord/Respondent
– and –
KAJALUXMI GAGENDRA PRASAD and SELLATHURAI GAGENDRA PRASAD
Tenants/Appellants
Shu Tian Tan, acting in person
Sellathurai Gagend Raprasad, acting in person
HEARD at Toronto: September 18, 2018
c. horkins J.
[1] The appellants Kajaluxmi Gagendra Prasad and Sellathurai Gagendra Prasad are tenants that occupy the rental unit. The respondent, Shu Tian Tan is the landlord.
[2] The tenants appealed the order of the Landlord and Tenant Board ("the Board") dated April 10, 2018 and the Review Order of the Board (“Review Order”) dated April 16, 2018. In summary, the Board ordered that the tenants must move out of the rental unit by April 21, 2018 unless they paid all of the outstanding rent plus interest and costs before April 21, 2018. If they failed to do so then the Board ordered the Sheriff to enforce their eviction from the rental unit.
[3] The tenants appealed and their notice of appeal stayed the Board’s orders.
[4] The landlord states that the tenants’ appeal is devoid of merit and is brought solely to permit them to live rent free in the rental unit and to delay their eviction. As a result, the landlord bring this motion for an order that the appeal be quashed, that the stay of the Board orders be lifted and that he be given immediate possession of the rental unit.
factual background
[5] The tenants have not paid any rent since November 2017.
[6] There have been two applications made to the Board concerning the parties.
Tenants’ Application
[7] The tenants filed an application before the Board alleging that the landlord harassed, obstructed, threatened or interfered with their reasonable enjoyment of the rental unit. This application was heard over four days (September 1, 2017, January 8, April 10 and June 18, 2018). The tenants raised three issues at this hearing: the landlord did not resolve a dispute that they had with another tenant about parking; the landlord placed the thermostat in a locked box in the common hallway; the landlord harassed them about these issues in texts and emails.
[8] In lengthy reasons, the Board rejected that tenants’ complaints and dismissed their application. The tenants requested a review and according to the Review order the Member found no error in the Board decision.
[9] The tenants did not appeal the orders made in their application.
Landlord’s Application
[10] The landlord filed an application before the Board for an order terminating the tenancy and evicting the tenants for non-payment of rent. This application was heard on April 3, 2018 (while the tenants’ application was being heard).
[11] The Board released its decision on April 10, 2018 and after a review, this decision was confirmed on April 16, 2018.
[12] The Board’s reasons state that the tenants admitted that they were withholding payment of rent because of their belief that the landlord had not met his obligations under the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Instead of paying rent, the tenants were investing their money back into a business that they owned. The Board told the tenants that the complaints in their application would be decided by the Board and they should not be withholding rent from the landlord.
[13] The Board found that the tenants persistently paid the rent late. Further, the tenants owed the landlord $8,276.40 as of April 10, 2018 for unpaid rent and interest. They were ordered to pay this amount on or before April 21, 2018 failing which they would be evicted from the rental unit.
[14] The tenants appealed the Board order and the Review Order.
the legal framework
[15] An appeal lies to the Divisional Court from a decision of the Board, but only on a question of law (s. 210(1) of the Residential Tenancies Act).
[16] This Court has jurisdiction to quash an appeal under s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, such relief should only be granted where it is demonstrated that the appeal is "manifestly devoid of merit" or where the appeal can be said to be an abuse of process because it has been brought solely for the purpose of delay. (See Oatway v. Canada (Wheat Board), 1945 43 (SCC), [1945] S.C.R. 204; Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 1976 793 (ON CA), 13 O.R. (2d) 430 (C.A.); Hornstein v. Royal Bank, 2010 ONSC 3134 (Ont. Div. Ct.).) This court also has the power to dismiss an appeal as an abuse of process under s. 140(5) of the Courts of Justice Act, R.S.O. 1990 c. C.43.
analysis and conclusion
[17] This appeal is manifestly devoid of merit.
[18] The notice of appeal raises three grounds of appeal. As explained, these are not alleged errors of law.
[19] The first ground states that the Board erred in law by failing to “identify the interference with the heating system by the landlord and remotely controlling the temperature of the house”. They state that this was a breach of the landlord’s obligation to provide comfortable heating.
[20] There are several problems with this ground of appeal. This is not an error of law and describing it as such does not make it so. The ground deals with findings of fact that the Board made during the hearing of the tenants’ application. The tenants did not appeal the orders made in their application.
[21] During submissions, the tenant who appeared, acknowledged that he had not appealed the orders made in his application. At the end of his submissions, he stated that he intended to appeal these orders, but he has taken no steps to do so and is out of time for filing a notice of appeal.
[22] The second and third grounds deal with a procedural matter. The tenants complain that they were not allowed to have their application heard with the landlord’s application. The tenants provide no explanation for this ground other than to say that their request to have the matters heard together was not allowed. They do not suggest that this resulted in any procedural unfairness.
[23] The tenants raised this complaint before Member Carey when she reviewed the Board order in the landlord’s application. The Review Order states that it was open to the tenants to make this request, but there was no indication in the record that the tenants had ever asked for the two matters to proceed together. The Review Order concludes that no serious error occurred in the Board’s decision or in the proceedings.
[24] There is no substance to these procedural grounds. The tenants had a lengthy multi day hearing of their application before the Board. In detailed reasons, the Board rejected their claims. The tenants have not appealed.
[25] In summary, none of the grounds of appeal raise questions of law. For this reason alone, the appeal must be quashed.
[26] In addition, the tenants have not provided proof that they have ordered the transcript of the hearing before the Board as required by rule 61.05(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They were required to do so by June 4, 2018.
[27] On this motion to quash, one of the tenants filed a late affidavit stating that the transcript was ordered. The affidavit does not say when it was ordered and no proof of the order is provided.
[28] At the end of the tenant’s submissions, he asked the court to adjourn the motion so that he could hire a lawyer. He has no lawyer in mind and no evidence was provided to show that he has taken any steps to hire a lawyer. The tenant did not bring a motion to adjourn the landlord’s motion. The tenants have represented themselves throughout the applications before the Board. This last minute attempt to delay the landlord’s motion was simply another attempt to delay payment of rent. Allowing this last minute request would have been prejudicial to the landlord who continues to receive no rent from the tenants, while they have been living in the rental unit without paying rent since November 2017.
[29] The tenants acknowledge that they have not been paying rent and instead have invested the rent money in their business. This is grossly unfair to the landlord. The tenants do not seek time to pay what they owe or even suggest when they might start paying the rent going forward.
[30] In conclusion, the landlord’s motion is allowed.
[31] The landlord did not request costs during the hearing, but costs are requested in the notice of motion. The landlord has incurred service and filing fees and so I have make a modest cost order.
Orders
[32] I make the following orders:
(i) The appellants’ appeal dated April 18, 2018 is quashed.
(ii) The stay of the Landlord and Tenant Board decisions dated April 10 and 16, 2018 is lifted.
(iii) The appellants shall pay the respondent costs fixed at $500.
___________________________ C. Horkins J.
Released: September 21, 2018
CITATION: Prasad v. Tan, 2018 ONSC 5517
DIVISIONAL COURT FILE NO.: 242/18
LANDLORD AND TENANT BOARD FILE NO. TEL-88019-18 and TEL 88019-18RV
DATE: 20180921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SHU TIAN TAN
Landlord/Respondent
– and –
KAJALUXMI GAGENDRA PRASAD and SELLATHURAI GAGENDRA PRASAD
Tenants/Appellants
REASONS FOR JUDGMENT
C. Horkins J.
Released: September 21, 2018