CITATION: Shirley v. Toronto Community Housing Corporation, 2018 ONSC 6510

DIVISIONAL COURT FILE NO.: 461/17

LANDLORD TENANT BOARD NO.: TNL-90997-17 DATE: 20181030

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MORAWETZ R.S.J, MULLINS and MATHESON JJ.

BETWEEN:

ANGELA SHIRLEY and DAVID SHIRLEY

Self-represented

Appellants (Tenants)

– and –

TORONTO COMMUNITY HOUSING CORPORATION

Katie Douglas, for the Respondent

Respondent (Landlord)

HEARD at Toronto: October 30, 2018

MATHESON J. (Orally)

1The Appellants appeal the Order of the Landlord and Tenant Board dated June 30, 2017, which granted the Respondent’s application to terminate their tenancy.

2The Appellants are tenants in community housing. The Respondent Toronto Community Housing is the Appellants’ landlord. Toronto Community Housing is a Local Housing Corporation under the Housing Services Act, 2011, S.O. 2011, c. 6, Sch. 1 (the “HSA”) and the majority of its rental units are provided to low-income tenants at a subsidized rate.

3The Appellants paid rent on a rent-geared-to-income (“RGI”) basis, meaning that their rent is subsidized according to their household income. They had ongoing obligations to report their income.

4In August 2016, Toronto Community Housing gave the Appellants a notice of rent increase on the basis of their income information. The rent increase was retroactive to December 2015. There was a later increase in February 2017, effective April 2017.

5The Appellants requested a review of these two decisions to raise their rent. The internal RGI Review Body confirmed its decision regarding the August 2016 increase. With respect to the February 2017 increase, the Review Board lowered the increase somewhat, but there was still an increase from the 2016 rent.

6During the time the Appellants were disputing the increase of their rent, they were not paying all of their undisputed rent. From August 2016 to January 2017, the Appellants made no rent payments at all. As a result, Toronto Community Housing served the Appellants with a notice to end their tenancy for non-payment of rent under the Residential Tenancies Act, 2006, S.O. 2006, s. C16 (the “RTA”). The notice indicated that the Appellants could avoid eviction by paying their arrears of rent (at the time, $8,750) or enter into a repayment plan. The Appellants did neither.

7Toronto Community Housing then applied to the Landlord and Tenant Board for an order terminating the Appellants’ tenancy. Although the Appellants then paid a portion of the arrears, the majority of the arrears remained unpaid.

8At the hearing, Board Member Kaufman explained the Board’s jurisdiction and noted that the Board did not have jurisdiction over the calculation of the Appellants’ RGI rent. At the hearing, Mr. Shirley, representing the Appellants, attempted to dispute the RGI rent and related retroactive charges. The Appellants did not put forward evidence to dispute the amount of their rent arrears.

9In its order dated June 30, 2017, the Board concluded that the Appellants owed $8,586 in rent arrears as well as filing fees. The Board found that a conditional order for repayment was not viable because the Appellants did not agree that they owed the full amount of the arrears. The Board ordered the tenancy be terminated. This is the order under appeal.

10In its order, the Board noted that the Appellants had the right to move under s. 74(11) to void its order. That subsection included a requirement that the Appellants pay the arrears. They did not do so.

Standard of review:

11The Appellants have a right to appeal to the Divisional Court pursuant to s. 210 of the RTA, but only on questions of law.

12The standard of review is reasonableness, except for questions regarding procedural fairness. For procedural fairness, the issue is whether or not the requisite level of procedural fairness was provided.

Issues

13We have grouped the issues raised on this appeal.

14First, some issues relate to the facts. The Appellants submit that Toronto Community Housing was made aware of their income in accordance with their reporting obligations under the HSA and that for certain months the amount of rent was incorrect. These are factual matters and were not the subject of findings by the Board. As well, the RGI rent determination under the HSA is not within the Board’s jurisdiction. There is no error of law reviewable on appeal on these issues.

15Second, the Appellants question Toronto Community Housing’s reason for its application. The Appellants submit that Toronto Community Housing gave notice to end their tenancy because they had exercised their legal right to challenge the rent increase and retroactive charges, in an effort to force payment.

16In turn, the Appellants submit that the Board erred in not considering whether Toronto Community Housing had sought to evict the Appellants for exercising a legal right, contrary to s. 83(3)(c) of the RTA. That subsection provides that the Board shall refuse to grant an application where it is satisfied that the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.

17These issues, regarding the reason for the application, were not raised at the hearing before the Board. The Board did not err in law in failing to consider these issues or in not making a finding in favour of the Appellants on this basis.

18Third, at the hearing this morning, the Appellants handed up their lease and made an argument submitting that the lease should still be governed by the Landlord Tenant Act in place at the time of the lease dated in the 1980s. We disagree with this submission, which, in any event, does not have an impact on the outcome of this appeal.

19Lastly, the Appellants submit that they were denied procedural fairness. They submit that the Board hindered the hearing and the Appellants’ defence by shutting down Mr. Shirley’s attempts to answer questions and provide information at the hearing. They submit that the Board Member generalized Mr. Shirley’s submissions and stated that he would not allow Mr. Shirley to challenge the determinations of rent directly or indirectly. They submit that in final submissions the Board Member ought to have read all of s. 83 to them rather than just the first two subsections.

20The record shows that at the hearing Mr. Shirley, on behalf of the Appellants, continued to return to the question of their retroactive rent, which was not within the Board’s jurisdiction, and repeatedly refused to confirm the amount of their rent, submitting that he was still awaiting clarity in that regard.

21The record shows that the Board Member:

1. explained that determinations of RGI rent were beyond the Board’s jurisdiction;

2. explained what was relevant to the hearing before the Board, and gave examples;

3. held the matter down so that Mr. Shirley could consult with duty counsel, during which Mr. Shirley submits he reviewed s. 83; and,

4. gave Mr. Shirley a number of opportunities to address the issues that were before the Board.

22In final submissions, the Board Member read that part of s. 83 that related to the point that had been under discussion, specifically that the Board Member continued to invite Mr. Shirley to provide any reasons why it would be unfair to grant the application, noting that the Board had the discretion to deny the application if it would be unfair, even when there was non-payment of rent. The defence based on retaliation about which we had submissions this morning, under s. 83(3)(c), had not been raised.

23We conclude that there was no denial of procedural fairness.

24As a result, the appeal is dismissed. With respect to the terms of dismissal, the Toronto Community Housing factum seeks an order directing the Sheriff to return vacant possession of the unit to Toronto Community Housing right away; however, we are ordering that the vacant possession be provided by December 10, 2018. As well, we grant an order dispensing with the need for approval as to form and content of the order arising from this appeal.

MORAWETZ R.S.J.

25I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed for oral reasons delivered today. There are no costs awarded.”

___________________________ MATHESON J.

I agree