Sum Loc Le v. Amy O'Grady and David Huynh
CITATION: Loc Le v. O’Grady, 2018 ONSC 6387
DIVISIONAL COURT FILE NO.: DC-18-005-00
LANDLORD TENANT BOARD NOS.: TSL-85781-17 and TSL-8578-17-RV
DATE: 20181026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Gordon RSJ, King J.
BETWEEN:
SUM LOC LE
Landlord (Appellant)
– and –
AMY O’GRADY and DAVID HUYNH
Tenants (Respondents)
Matthew P. Maurer, counsel for the Landlord (Appellant).
Alex Valova, counsel for the Tenants (Respondents).
HEARD at Toronto: October 25, 2018
Overview
[1] The Appellant, Sum Loc Le (the “Landlord”), brings this appeal from the Order of the Landlord and Tenant Board dated August 4, 2017, and the Review Order dated November 29, 2017.
[2] The Review Order confirmed the Board’s dismissal of the Landlord’s application to terminate the residency of the Respondents (the “Tenants”). The application was dismissed pursuant to s. 83(3)(c) of the Residential Tenancies Act, 2006 (the “Act”) which provides that the Board shall refuse to grant the application where satisfied that, among other things, the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.
Background
[3] The Tenants rent the Landlord’s third floor rental unit at a monthly rate of $1,225.00. They have rented the unit for approximately the last 5 years. The tenancy agreement for the unit expired on May 31, 2017.
[4] In February 2017, the Landlord and his spouse sold their house and moved into the third floor of a house occupied by their children and other relatives.
[5] In May 2017, the Landlord approached the Tenants about increasing the monthly rate to $1,400.00, an amount well in excess of the 1.5% rent increase guideline for 2017. The Tenants refused to pay the increase but indicated a willingness to consider an agreement to increase the rent to $1,300.00 in exchange for the Landlord improving services and facilities to the rental unit. The parties were not able to arrive at an agreement as to any increase in rent or improvements to the unit.
[6] On May 31, 2017, the Landlord served the Tenants with a Notice of Termination (Form N12) which is issued where the landlord, a purchaser, or family member requires the unit for personal possession. The Tenants did not vacate the premises in accordance with the Notice. The Landlord filed an application for an order to evict the tenants on June 5, 2018, and requested the Tenants pay rent arrears each day they stay in the unit after the termination date. The Landlord and Tenant Board (the “Board”) heard the application on August 2, 2018.
The Board’s Decision
[7] In its decision, the Board determined that the application should be dismissed. Although it found that the Landlord, in good faith, intended to occupy the unit pursuant to s. 48(1) of the Act, it ultimately dismissed the application pursuant to s. 83(3)(c) of the Act.
[8] Section 83(1) of the Act confers upon the Board a discretion to refuse an order granting eviction. Section 83(2) of the Act states that “the Board shall not grant the application unless is has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). More specifically, subsection 83(3)(c) provides that:
(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that…
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
[9] The Board found on the evidence before it that the Landlord had formed his decision to repossess the rental unit because the Tenants refused the unlawful increase in rent proposed by him. It was the Board’s view that in refusing the Landlord’s rent increase, the Tenants were attempting to secure their legal rights within the meaning of s. 83(3)(c).
[10] In support of this finding, the Board relied primarily on two pieces of evidence:
A statement of the property-manager of the unit and son-in-law to the Landlord, uttered during negotiations, that he would “hate to see [the Respondents] go”;
The timeline under which the Landlord issued the Form N12 to the Tenants. That is, within two weeks of the Tenants’ refusal they were presented with a notice of termination.
[11] In dismissing the application, the Board held that “it is in these kinds of circumstances the discretionary relief provisions of the Act were designed to apply to, where it would be most unfair to grant the application requested despite a finding of landlords own use”.
[12] A request for Review by the Board was subsequently dismissed.
Jurisdiction
[13] The Landlord relies on section 210(1) of the Residential Tenancies Act with regard to the Divisional Court’s jurisdiction. That section provides that any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
Standard of Review
[14] The parties agree that the standard of review is reasonableness.
[15] When a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. Rather it is for the Court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817…” at paras. 23-27:
The nature of the decision being made and the process followed in making it;
The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
The importance of the decision to the individual affected;
The legitimate expectations of the person challenging the decision; and
Respect for the procedural choices made by the decision-maker itself.
The Issues
[16] The Landlord raises the following issues:
Did the Board err in exercising its discretion under s. 83(3)(c) of the Act?
Did the Board err in considering new evidence from the Tenants during closing arguments?
Analysis
The S. 83(3)(c) Issue
[17] The applicable sections of the Residential Tenancies Act, 2006, S.O. 2006, c.17 are as follows:
s. 83 (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.
(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).
(3) Without limiting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(c) The reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.
[18] The Board found as fact that the application was brought by the Landlord because the Tenants attempted to enforce their legal rights. Specifically, the Board found that the Tenants had refused to agree to a rental increase beyond that to which the Landlord was lawfully entitled, and this is ultimately why the application was brought by the Landlord.
[19] Once that factual determination was made by the Board it was obliged to refuse the application. It had no discretion to do otherwise. What the Landlord really objects to is the Board’s finding of fact, from which no appeal lies.
[20] Even if we were persuaded that this ground of appeal is properly before us, we are not convinced there was any error. The inferences to be drawn from the evidence are practically irrefutable. If the Tenants had agreed to the Landlord’s unlawful demands they would have been allowed to continue to occupy the premises. Because they did not, the Landlord determined he would evict the tenants and move into the property himself. The precipitating event was not the Landlord’s desire to occupy the premises himself. It was the Tenants’ refusal to accede to his unlawful demand. Counsel argued that many facts pertinent to the Landlord were not considered by the Board. We disagree. The Board indicated that its decision was based on consideration of the facts before it. Indeed most, if not all, of the facts referred to as missing from the Board’s analysis must have been considered by it in reaching the conclusion that the Landlord held a good faith intention to move into the premises.
The Procedural Issue
[21] The Landlord submits that the Board improperly accepted new evidence from the Tenants during closing submissions without giving him an opportunity to challenge or refute that evidence, and then unfairly relied upon that evidence in arriving at its decision.
[22] There is some debate about just what transpired at this point in the proceedings. The Landlord says that after hearing from the Tenants and looking at documents tendered by them, the Board handed the documents back to the Tenants and said: “I’m dismissing the application. You’ll get a copy of my order, okay. Thank you very much.”
[23] However, the official transcript from the proceeding reads as follows: “It’s missing the application. You’ll get a copy of my order, okay. Thank you very much.”
[24] Although we accept the Landlord’s rendition of the Board’s statement as it more reasonably accords with paragraph 6 of the Board’s reasons that “It was determined at the hearing that the Landlord’s application should be dismissed”, we do not agree that it was a factor in the decision.
[25] The evidence in question was tendered by the Tenants in response to the Board’s inquiries under section 83(1) of whether, if it was to order eviction, it should be postponed. Two things are abundantly clear from the record: first, the Board did not accept the documentary evidence. It was not made an exhibit and was returned to the tenants. Secondly, even if the Board did consider the evidence it did not and could not reasonably have formed the basis for its decision. The decision was made under s. 83(3) of the Act not 83(1). It was based on the Board’s finding that the reason the application was brought was because the Tenants attempted to enforce their legal rights. Whether one of the Tenants had lost their job and whether other affordable accommodation was readily available to them was not relevant to that determination.
Conclusion
[26] The Appeal is dismissed. If the parties are unable to agree on costs they may make written submissions, not to exceed three pages plus attachments each, within 45 days.
F. N. Marrocco, A.C.J.S.C.
R. D. Gordon, R.S.J.
G. W. King, J.
Released: October 26, 2018
CITATION: Loc Le v. O’Grady, 2018 ONSC 6387
DIVISIONAL COURT FILE NO.: DC-18-005-00
LANDLORD TENANT BOARD NOS.: TSL-85781-17 and TSL-8578-17-RV
DATE: 20181026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Gordon RSJ, King J.
BETWEEN:
SUM LOC LE
Landlord (Appellant)
– and –
AMY O’GRADY and DAVID HUYNH
Tenants (Respondents)
REASONS FOR JUDGMENT
Released: October 26, 2018