Capreit 2 Limited Partnership v. Reid, 2018 ONSC 7588
CITATION: Capreit 2 Limited Partnership v. Reid, 2018 ONSC 7588
DIVISIONAL COURT FILE NO.: 659/18
LANDLORD AND TENANT BOARD NO.: TNL-05489-18
DATE: 20181217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CAPREIT 2 LIMITED PARTNERSHIP Landlord (Respondent)
– and –
ROGENE REID Tenant (Appellant)
COUNSEL:
Spencer Toole, for the Landlord (Respondent)
Rogene Reid, acting in person, Tenant (Appellant)
HEARD at Toronto: December 17, 2018
ORAL REASONS FOR JUDGMENT
F.L. MYERS J. (Orally)
[1] On July 13, 2018, the Landlord and Tenant Board approved and issued an eviction order against the tenant for non-payment of rent. The tenant did not appear to contest the proceeding.
[2] The Board’s order granted the tenant until July 24, 2018 to void the eviction by paying rent by that time.
[3] The tenant claimed that she did void the order on time. However, the cheque that she gave to the landlord had an error that made it uncashable.
[4] The Board found at a subsequent hearing that even if the cheque was submitted on time (and there was contested evidence on that fact), the fact that the cheque had an error that made it uncashable meant that payment had not been received within the time required so that the order of the Board had not been properly voided.
[5] Moreover, because the tenant had used this process once before, she was not entitled under the provisions of the statute to seek a discretionary relief from forfeiture upon making a payment late.
[6] The tenant then filed a notice of appeal to this court. She has not paid rent since filing her notice of appeal in October of this year. November and December rent are due in the amount of $1,033.00 for each month and are now in arrears.
[7] The tenant advises the she is being investigated by healthcare professionals for illness. She says she needs an invasive diagnostic procedure that was originally scheduled for tomorrow. However, the procedure will be scheduled for a date in January.
[8] The tenant advises that her request to adjourn this proceeding is on the basis that her health concerns have prevented her from properly preparing for today’s motion.
[9] There is no admissible evidence from the tenant submitted for this hearing. However, to provide assistance to a self-represented party, the court had the registrar’s office send a message to the parties last week that if the tenant was seeking an adjournment she should try to provide an admissible affidavit from a doctor or healthcare professional detailing her health concerns.
[10] Rather than doing so, the tenant handed-up a note from an administrator of a clinic that simply says that there will be a diagnostic procedure scheduled. There is no evidence at all that the tenant’s health has been affected or that it has been so affected for a such a length of time to have prevented her from taking steps to perfect her appeal or to pay rent or to prepare for today’s motion.
[11] The landlord argues that the appeal should be dismissed for delay because the tenant has, among other things, not ordered a transcript that she says she requires for the hearing of the appeal. That was to have been done within 30 days of filing her notice of appeal.
[12] The landlord also argues for a dismissal because the appeal is devoid of merit. Under s. 210 of the Residential Tenancies Act, 2006, an appeal only lies to the Divisional Court on a question of law. The landlord argues that the tenant has not raised a question of law in this proceeding.
[13] The landlord also argues that this appeal is an abuse of process. It notes that by advancing an appeal with no particularized grounds, not perfecting the appeal on a timely basis, and not paying rent, the court should draw the inference that the appellant is “gaming” the system and the appeal is being used for delay as a result of the automatic stay that applies as soon as an appeal is filed.
[14] The tenant has indicated that she is willing to pay rent pending the hearing of her appeal. She offers to pay arrears and January rent in three instalments. The first instalment would be for $400 on December 27 or 28 of this year. She then offers to pay $1,500 on each of January 10 and 24 of next year. There is no indication of how the tenant would be able to arrange those payments given her allegations concerning her health and her need for medical tests in January or why she would be able to make those payments then but not today.
[15] The tenant was also unable to commit to dates by which she would order the transcripts.
[16] As to her issue of law, the tenant advises that she will argue that the Landlord and Tenant Board erred in finding her uncashable cheque to be insufficient payment to void the eviction order. As counsel for the landlord submits, that matter does not raise a question of law. It is a question of fact or at best a question of mixed fact and law. Accordingly, this court has no jurisdiction to deal with that submission.
[17] In my view, even if the tenant makes the payments of the instalments that she is offering, she is just delaying the inevitable because there are no valid grounds advanced for an appeal of the Landlord and Tenant Board’s decision. It is therefore not in the interests of justice to extend this matter any further or to adjourn the matter today.
[18] The tenant is not asking for time to put in more or further evidence or different evidence. The facts rather are not in dispute.
[19] The tenant’s back-end loaded offers to pay rent in instalments are also not credible and appear to me to be a furtherance of a stalling intention.
[20] In my view, (1) there in no valid ground of appeal on a question of law particularized in the notice of appeal or particularized orally by the tenant today; (2) the failure to perfect or at least order transcripts on a timely basis has not been adequately explained; and, (3) this appeal is in fact an abuse of process to try to take advantage of the stay of proceedings.
[21] On these bases, the appeal must be quashed.
[22] The landlord is entitled to its costs on a substantial indemnity basis because of the tenant’s abuse of the process of this court for a collateral purpose. The landlord seeks the sum of $4,473.14 for costs on a substantial indemnity basis including today’s proceeding.
[23] I have reviewed the landlord’s costs outline and find the rates charged and hours incurred more than reasonable. Accordingly, the tenant will be ordered to pay costs of $4,473.14 all-in, forthwith.
[24] In the exercise of the court’s discretion, in my view, the order of the Landlord and Tenant Board should not be enforceable until January 14, 2019 and this term should be contained in the order quashing the appeal.
[25] I have endorsed the Motion Record of the Landlord (Respondent) as follows: “For oral reasons dictated in court today, order signed.”
F.L. MYERS J.
Date of Reasons for Judgment: December 17, 2018
Date of Release: December 20, 2018
CITATION: Capreit 2 Limited Partnership v. Reid, 2018 ONSC 7588
DIVISIONAL COURT FILE NO.: 659/18
LANDLORD AND TENANT BOARD NO.: TNL-05489-18
DATE: 20181217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CAPREIT 2 LIMITED PARTNERSHIP Landlord (Respondent)
– and –
ROGENE REID Tenant (Appellant)
ORAL REASONS FOR JUDGMENT
F. L. MYERS, J.
Date of Reasons for Judgment: December 17, 2018
Date of Release: December 20, 2018