Snoek v. CMHA Toronto and CAP REIT, 2018 ONSC 6571
CITATION: Snoek v. CMHA Toronto and CAP REIT, 2018 ONSC 6571
DIVISIONAL COURT FILE NO.: 454/18
LANDLORD AND TENANT BOARD NO.: TSL-96307-18-AM
DATE: 20181101
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DONALD NICHOLAS SNOEK
Appellant (Tenant)
– and –
CMHA TORONTO and CAP REIT
Respondents (Landlords)
COUNSEL:
Brian Kolenda, Duty Counsel, Amicus
Timothy M. Duggan, for the Respondents
HEARD at Toronto: November 1, 2018
C. HORKINS J. (Orally)
[1] The landlords bring a motion for an order dismissing the appeal of the tenant for delay, lifting the stay of the order issued by Dale Whitmore a member of the Landlord and Tenant Board on July 17, 2018 and directing the court enforcement office to enforce the eviction order and to provide the landlords with vacant possession of the unit on an immediate and expedited basis.
[2] In the alternative, the landlords request an order quashing the tenant’s appeal, lifting the stay of the eviction order and directing the court enforcement office to enforce the eviction order and to provide the landlords with a vacant possession of the rental unit on an immediate and expedited basis.
[3] The tenant has not appeared today and has filed no material responding to this motion. The court has advised that the tenant was aware of the motion and he was served. In his absence, amicus made some submissions on his behalf.
[4] After an eviction hearing before the Landlord and Tenant Board on July 17, 2018, an eviction order was issued. The Board found as follows:
(a) The tenant had deliberately started a fire on the door of a unit on the second floor of a residential complex;
(b) The tenant’s conduct amounted to an illegal act , a serious impairment to the safety of other residents at the residential complex and a wilful act of damage to the residential complex;
(c) That although the tenant suffered from a disability within the meaning of the Human Rights Code R.S.O. 1990 c.H.19 as amended, the tenant’s conduct was such that he could not be accommodated without undue hardship to the landlords;
(d) In light of the foregoing, that the tenant’s tenancy be terminated;
(e) Having regard to subsection 83(2) of the Residential Tenancies Act 2006 S.O. 2006, c.17 as amended, that it would not be unfair to delay the eviction to August 31, 2018;
(f) That the tenant vacate the unit by no later than August 31, 2018;
(g) That the tenant pay the landlords the amount of $190.00 for the cost of filing the eviction application; and
(h) That the tenant pay to the landlords the amount of $16.08 per day for compensation for the use of the unit from September 1, 2018 until the day the tenant moves out of the unit.
[5] The tenant did not vacate the premises as ordered. Instead, the tenant appealed the Board’s order and filed a notice of appeal with this court on July 26, 2018. There is one ground of appeal in the notice of appeal that states: “evidence in order was not presented in hearing.”
[6] Aside from filing this notice of appeal, the tenant has taken no further steps. He has not complied with Rule 61.05 that requires proof to be filed that the transcript at the hearing has been ordered. In the event he decided not rely on the transcript, he has failed to perfect his appeal in the 30 days under Rule 61.09 of the Rules of Civil Procedure.
[7] Section 210(1) of the Residential Tenancies Act 2006 S.O. 2006, c.17 provides that an appeal to the Divisional Court of an order of the Board is only available on a question of law. The ground in the notice of appeal does not raise a question of law.
[8] The tenant is complaining about the evidence. This is a question of fact or at best, mixed fact and law. On this point alone, the appeal must be quashed.
[9] The tenant has no right to appeal questions of fact or mixed fact and law.
[10] Amicus submits that this ground of appeal can be read to be mean that the Board made a decision without evidence or based the decision on evidence not before the Board and that this would be an error of law.
[11] The tenant has filed no material to support such an argument. Furthermore, it is clear from the Board’s reasons that the decision was based on the evidence presented to the Board.
[12] Since there is no ground of appeal that raises a question of law, the appeal must be quashed.
[13] I find further that this is an appeal devoid of merit. Contrary to the tenant’s assertion that “evidence in order was not presented in hearing,” the Board found that the tenant had deliberately started a fire in the residential complex and this was based on the evidence before the Board.
[14] In summary, the relief requested is granted:
(1) The tenant’s appeal is quashed;
(2) The stay of the order issued Dale Whitmore a member of the Landlord and Tenant Board on July 17, 2018 is hereby lifted;
(3) The court enforcement office (Sheriff) shall provide the landlords with vacate possession of the rental unit, municipally known as Unit #302, 139 Eighth Street, Toronto, Ontario M8V 3C8 on an immediate and expedited basis.
[15] I have endorsed the Motion Record as follows: “This motion is allowed. Order to go as signed today (copy attached). Oral reasons provided. The landlords were successful and are entitled to costs on a partial indemnity basis. The amount requested is reasonable. I fix costs at $3,500 all inclusive.”
C. HORKINS J.
Date of Reasons for Judgment: November 1, 2018
Date of Release: November 7, 2018
CITATION: Snoek v. CMHA Toronto and CAP REIT, 2018 ONSC 6571
DIVISIONAL COURT FILE NO.: 454/18
LANDLORD AND TENANT BOARD NO.: TSL-96307-18-AM
DATE: 20181101
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DONALD NICHOLAS SNOEK
Appellant (Tenant)
– and –
CMHA TORONTO and CAP REIT
Respondents (Landlords)
ORAL REASONS FOR JUDGMENT
C. HORKINS, J.
Date of Reasons for Judgment: November 1, 2018
Date of Release: November 7, 2018