Saunders v. Nkemdirim, 2018 ONSC 6642
CITATION: Saunders v. Nkemdirim, 2018 ONSC 6642
DIVISIONAL COURT FILE NO.: 555/18
LANDLORD AND TENANT BOARD FILE NO.: TNL-05657-18
DATE: 20181107
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
EDWARD SAUNDERS Landlord/Applicant (Respondent in Appeal)
– and –
JULIETTE NKEMDIRIM Tenant/ Respondent (Appellant in Appeal)
Timothy Duggan, for the Landlord/ Applicant (Respondent in Appeal) Ryan Hardy, for the Tenant/Respondent (Appellant)
HEARD at Toronto: November 1, 2018
c. horkins J.
[1] The landlord, Edward Saunders, brings this motion for an order quashing Juliette Nkemdirim’s appeal of the order issued by Louise Horton, a Member of the Landlord and Tenant Board (the “Board”) on August 3, 2018.
[2] The landlord also asks that the stay of the Board’s order be lifted, that the Sherriff be directed to enforce the Board order and that the landlord be provided with vacant possession of the rental unit on an immediate and expedited basis.
Background Facts
[3] The landlord owns a residential unit at 6 Humberline Drive, Suite 621, Toronto, Ontario (the unit). This is a condominium unit. The tenant rented the unit.
[4] On May 29, 2018, the landlord entered into an agreement of purchase and sale with Vishal Rao and Sonal Sanghavi (the purchasers) to purchase the unit from the landlord. The agreement became firm on June 5, 0281 when the purchasers waived the conditions.
[5] Pursuant to the agreement of purchase and sale, the purchasers did not agree to assume the Tenant’s tenancy and the landlord was required to deliver vacant possession of the unit to the purchasers by September 21, 2018. As a result, the landlord served the tenant with a Form N12 Notice to End your Tenancy (the Termination Notice”) and to vacate the unit no later than August 31, 2018.
[6] On June 11, 2018, the landlord filed an application (the Eviction Application) with the Board pursuant to the Termination Notice. In the Eviction Application the landlord requested termination of the tenancy effective August 31, 2018.
[7] The Board heard the Eviction Application on July 27, 2018. The landlord and tenant attended and were represented by a paralegal and lawyer respectively.
[8] The purchasers attended at the hearing. They filed affidavits confirming that they required the unit for personal use and they also testified. They testified that until they were able to move into the unit, they would be sleeping on a family member’s couch.
[9] After the hearing, the Board released its decision on August 3, 2018. The Board made several findings of fact. In particular, it found and concluded as follows:
(i) The landlord and the purchasers had entered into the agreement of purchase and sale.
(ii) The purchasers in good faith required the Unit for their residential occupation.
(iii) As a result the test to terminate the tenant’s tenancy under s. 49 of Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the Act”) had been satisfied.
(iv) The Board considered and dismissed the tenant’s allegations that the landlord was in serious breach of his obligations under s. 17 of the Act.
(v) The Board considered and dismissed the tenant’s allegations that the landlord had filed the Eviction Application in retaliation for a previous application that the tenant had brought.
(vi) The Board considered and dismissed the tenant’s argument that the landlord had failed to accommodate her pursuant to the Human Rights Code.
(vii) The Board considered and dismissed the tenant’s argument that the date of termination should be delayed to at least December 31, 2018.
(viii) The Board ordered that the tenant’s tenancy be terminated.
(ix) The Board found that having regard to s. 83 of the Act that it would be unfair to grant relief from eviction.
(x) The Board ordered the tenant to vacate the unit by August 31, 2018 and ordered her to pay $47.28 per day as compensation for use of the Unit from September 1, 2018 until the day that the tenant moved out of the unit.
[10] On August 31, 2018, the tenant commenced this appeal and obtained an automatic stay of the Eviction Order.
[11] On September 8, 2018, the tenant moved many of her belongings out of the unit, but she continued to reside in the unit.
[12] Section 201 of the Act states that “any person affected by an order of the Board may appeal the order to the Divisional Court … but only on a question of law”.
[13] The notice of appeal lists the following grounds of appeal:
The Board erred in law by misinterpreting and misapplying ss. 49 and 83 of the Act.
The Board erred in law by making findings of fact not based on evidence and by failing to consider material evidence.
The Board committed a palpable and overriding error by misapprehending the evidence before it.
The Board committed a palpable and overriding error by misinterpreting and misapplying the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
[14] The tenant’s notice of appeal does not raise any questions of law. I will address each ground and explain why this is the case.
Ground 1
[15] Section 49 of the Act deals with the notice a landlord shall give the tenant when the premises have been sold and the termination of the tenancy is required. It states:
49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,
(a) the purchaser;
(b) the purchaser’s spouse;
(c) a child or parent of the purchaser or the purchaser’s spouse; or
(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.
[16] The Board found as a fact that the purchasers of the unit “in good faith require the unit for the purpose of residential occupation”.
[17] Section 83 of the Act addresses the Board’s power to order an eviction as it did in this case. The tenant argued that the Board was required to refuse the eviction application and relied on ss. 83 (3) (a) and (c) that state as follows:
(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(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 “serious breach” issue in s. 83 (3) (a) involved the landlord’s obligation to pay interest on the last month’s rent. The landlord agreed that interest is owed. The Board found as a fact that “this would not constitute a serious breach of the Act which would warrant denying eviction”.
[19] Subsection 83(3)(c) involved the tenant’s argument that the landlord was pursuing the eviction in retaliation. Earlier that year the tenant had successfully brought an application before the Board to require the landlord to carry out some maintenance. The Board considered the evidence and found that “the facts in this case do not constitute retaliation”.
[20] This first ground does not raise a question of law. Rather, the ground of appeal seeks to challenge the Board’s findings of fact under ss. 49 and 83 (3)(a) and (c). In essence the tenant is challenging the Board’s refusal to exercise its discretion in her favour.
[21] It is clear from the Board’s reasons that the Board carefully considered the evidence in reaching the conclusion that the purchasers in good faith required the unit for their residential occupation.
[22] It is also clear that the Board considered the circumstances of the elderly tenant. The Board noted that the landlord gave the tenant more notice than what was required. The Board found on the facts that it would be unfair to grant relief from the eviction under s. 83
Grounds 2 and 3
[23] These grounds raise matters of fact with no particulars. There is no right to appeal matters of fact.
[24] If the Board failed to consider evidence, such evidence is not identified on this appeal. The reasons show that the Board carefully reviewed the evidence that was presented.
Ground 4
[25] The ground of appeal states that the Board “committed an error by misinterpreting and misapplying the Ontario Human Rights Code”. Particulars are not included in the notice of appeal.
[26] In the tenant’s factum, she states that this is an error of law because “the appropriate inquiry mandated by the Code was not conducted at all. Specifically, the Board was required to consider s. 17 of the Code and it did not do so.
[27] This ground does not raise a question of law as explained below.
[28] Section 17 states:
17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.
[29] Section 17 is not triggered in this case and it was not raised before the Board. This case raises no issue of a duty to accommodate under the Code. The termination of the tenancy had nothing to do with the tenant’s disabilities. Rather the tenancy was terminated because the landlord sold the unit to the purchasers, who in good faith required the unit for their residential occupation (see Moniz v Williams, 2015 ONSC 126 at paras. 9-10).
[30] To the extent that the tenant and/or her son’s disabilities were relevant, they were considered by the Board. Based on the facts, the Board was unable to find that eviction must be denied on this basis. At para. 8 the Board stated:
Finally it was submitted in closing that termination should be refused because the Landlord failed in its human rights obligation by not asking the tenant before giving notice how much time she would need to move and asking how eviction would affect her son. No particular provisions of the Code were identified not was any submission made as to what would have been an appropriate approach. I am unable to conclude that eviction must be denied on this basis.
[31] The Board was alert to the tenant’s age and health and the adult son with an “unidentified medical and/or mental health issues”. This evidence was reviewed in the reasons.
[32] It is clear that the human rights issue as articulated on this motion does not raise a question of law. The tenant cannot appeal findings of fact or mixed fact and law. There is no extricable question of law that has been identified.
Procedural Fairness
[33] This motion first came before the court on October 10, 2018. At this hearing, the tenant argued that the appeal should not be quashed because she was denied procedural fairness. The motion was adjourned to allow the parties to order the transcript of the hearing before the Board. The transcript is now available.
[34] The procedural fairness issue is not listed as a ground of appeal in the notice of appeal and the tenant does not propose an amendment.
[35] In the tenant’s factum and in oral argument by the tenant’s counsel, the procedural fairness issue was articulated as follows. The tenant states that during cross-examination of the landlord, the landlord said that he took steps in the eviction process based on advice from his paralegal. When the tenant’s counsel sought to cross-examine the landlord on this advice, the landlord objected on the ground that the advice was privileged. The Board agreed and would not allow the question to be asked.
[36] The tenant argues that her ability to respond to the landlord’s eviction application was limited because the Board would not allow this line of questioning. On this motion, the tenant’s counsel states there was “an arguable” case that privilege had been waived and he ought to have been allowed to ask the questions. Counsel does not explain why there is an arguable case and does not explain how this amounts to procedural unfairness. Since Mr. Hardy acted for the tenant before the Board, he is a position to offer more than a bald statement.
[37] The transcript from the hearing is available. Unfortunately, the transcript is missing the landlord’s examination in chief and all of his cross-examination, because it was not recorded. The incomplete transcript is not fatal to the landlord’s motion.
[38] When the landlord learned that the transcript was incomplete, the landlord filed a supplementary affidavit setting out his recollection of this area of questioning. In this affidavit, he states that he did not intend to ever waive solicitor-client privilege. He recalls being asked at least three times if he had filed the eviction application because of the tenant’s prior proceeding concerning maintenance problems. On each occasion, he testified that the tenant’s application had nothing to do with his decision to sell the unit (a decision he made before she brought her application). Lastly, the landlord states that he cannot recall the Board preventing tenant’s counsel from asking him any questions about his motive for the Termination Notice.
[39] The tenant now argues that because part of the transcript is missing, there is procedural unfairness and the appeal should not be quashed.
[40] I do not accept that a ground of procedural fairness has been articulated that would justify allowing this ground to continue to a hearing. The tenant has presented nothing more than a bald statement that she was denied procedural fairness. An affidavit could have been filed to explain the basis for this ground. This is particularly so given that she continues to be represented by the same counsel that she had before the Board. Furthermore, if the Board refused to allow questions about the advice given to the landlord, I do not accept that this results in procedural unfairness. The landlord testified that the decision to sell the unit had nothing to do with the tenant’s application. Whether he did or did not act on legal advice is irrelevant. He explained what he did and why.
Conclusion
[41] In summary, the grounds of appeal do not raise a question of law and the new ground of procedural fairness is so vague that it is fatally deficient.
[42] I make the following orders:
The appeal of the tenant, Juliette Nkemdirim from the order of the Landlord and Tenant Board dated August 3, 2018 is quashed.
The stay order of the order of the Landlord and Tenant Board dated August 3, 2018 is lifted.
The Court Enforcement Office (Sheriff) shall provide the Landlord, Edward Saunders with vacant possession of the rental unit municipally located at 6 Humberline Drive, Suite 621, Toronto, Ontario M9W 6X8 on an immediate and expedited basis.
[43] The landlord seeks costs of $9,440.11 all inclusive. This includes the costs of the hearing on October 10, 2018 that were adjourned to the hearing of the motion. The landlord was successful and is entitled to reasonable costs. As a result of this appeal, he has had to delay the closing of the sale of the unit and pay a penalty. The tenant states that no costs should be ordered as she cannot afford to pay them.
[44] This is not a case where no costs should be ordered. The tenant’s right of appeal is limited to a question of law and yet she pursued an appeal that clearly lacked a question of law.
[45] I fix the landlord’s costs at $3,000 all inclusive. This amount is fair and reasonable.
[46] I order the tenant, Juliette Nkemdirim to pay the landlord Edward Saunders costs fixed at $3,000.
___________________________ C. Horkins J.
Released: November 7, 2018
CITATION: Saunders v. Nkemdirim, 2018 ONSC 6642
DIVISIONAL COURT FILE NO.: 555/18
LANDLORD AND TENANT BOARD FILE NO.: TNL-05657-18
DATE: 20181107
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
EDWARD SAUNDERS Landlord/Applicant (Respondent in Appeal)
– and –
JULIETTE NKEMDIRIM Tenant/ Respondent (Appellant in Appeal)
REASONS FOR JUDGMENT
C. Horkins J.
Released: November 7, 2018