CITATION: Pfeiffer v. Metcap Living Management Inc., 2018 ONSC 910
DIVISIONAL COURT FILE NO.: DC-17-810 (Hamilton) DATE: 2018-02-08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, MATHESON and GLUSTEIN JJ.
BETWEEN:
Doug Pfeiffer
Appellant/Tenant
– and –
Metcap Living Management Inc.
Respondent/Landlord
Self-Represented
Rob Winterstein, Counsel for the Respondent/Landlord
HEARD at Hamilton: February 6, 2018
MATHESON J. (ORALLY):
[1] This is a statutory appeal under the Residential Tenancies Act, 2006, S.O. 2006, c.17 (the “RTA”). The appellant tenant appeals a review decision of Member Kevin Lundy of the Landlord and Tenant Board (the “LTB”) dated February 1, 2017 (the “Order”). The respondent is the landlord.
BACKGROUND:
[2] There have been a number of prior orders of the LTB leading up to the Order that provide context to this appeal.
[3] In 2016, when the appellant did not make his required rental payments, the respondent served a Notice of Termination. The respondent subsequently filed an eviction application with the LTB. In her decision dated September 7, 2016, Member Homeniuk denied the respondent’s application for eviction on the condition that the appellant make certain payments regarding the arrears of rent. The Member further ordered that the respondent could apply to terminate the tenancy pursuant to section 78 of the RTA and to evict the appellant if the appellant failed to make the required payments.
[4] After non-compliance with the payment schedule, the respondent applied to terminate the tenancy and to evict the appellant.
[5] The appellant attempted to tender seven cash payments for the rental arrears. The landlord’s office staff refused to accept those payments, and the landlord has since explained that the staff was under the mistaken impression that they could not accept cash for rental payments. Under the tenancy agreement, payment of rent was to be made either by money order or certified cheque only, unless the landlord stated otherwise. The respondent landlord later informed its staff that they should accept cash.
[6] The section 78 eviction application was heard by Member McDermott, who granted the landlord’s application for termination of the tenancy and required that the appellant pay the arrears and move out of the rental unit by November 5, 2016.
[7] The appellant filed a motion to set aside Member McDermott’s order, which was heard on December 1, 2016 by Member Hartslief. Member Hartslief granted the motion to set aside the McDermott order, and ordered a modified payment plan for the payment of arrears.
[8] Member Hartslief further ordered that if the appellant failed to make any of the payments the respondent could move without notice for an order terminating the tenancy and to evict the appellant. She otherwise dismissed the respondent’s application and set aside the McDermott order. On the issue of payment being refused by the landlord, the Member found that the act of offering payment did not erase the debt.
[9] The appellant filed a Request to Review Member Hartslief’s order. He did so on the basis that he should not be required to pay the outstanding rental arrears to the respondent because he had tendered that rent in cash, which the landlord had refused, among other grounds raised.
[10] The review was heard by Member Kevin Lundy on January 25, 2017, and gave rise to the Order appealed from.
[11] One of the appellant’s main arguments before Member Lundy was, again, that his arrears were fully discharged by his attempt to tender cash to the respondent’s staff. Member Lundy found that Member Hartslief succinctly considered and analyzed the appellant’s position on this issue, and made no error in rejecting the appellant’s argument.
[12] The appellant also argued that Member Hartslief misapprehended the evidence regarding the landlord’s refusal of the appellant’s cash payments. Member Lundy found that Member Hartslief was in the best position to assess the evidence and her decision should be afforded deference.
[13] The appellant further argued that Member Hartslief did not take the appellant’s ability to pay into account before making her order regarding the payment of the amounts owing. Member Lundy agreed that this was a serious error. However, Member Lundy found that because of the appellant’s stated refusal to comply with any LTB order to pay the arrears, it would be unfair to set aside the eviction order as Member Hartslief had done. Therefore, Member Lundy ordered that the eviction order was not to be set aside, however, the appellant was given additional time to secure accommodation.
[14] The appellant appeals Member Lundy’s review decision.
ISSUES ON THE APPEAL:
[15] Pursuant to section 210 of the RTA a party may appeal an order of the Landlord Tenant Board to the Divisional Court, but only on a question of law.
[16] There are two issues that have been raised by the appellant in this appeal:
Does the landlord’s refusal to accept a rental payment satisfy the tenant’s obligation to pay rent? To use the appellant’s words in court today, has he been discharged from making those rent payments?
Did Member Kevin Lundy make an error of law in exercising his discretion in refusing to set aside the eviction order, including the issue raised in Issue #1?
STANDARD OF REVIEW:
[17] The standard of review of decisions of the LTB is as set out in First Ontario Realty Corporation v. Deng, 2011 ONCA 54 at paragraphs 16 to 22. The standard of review for this appeal is reasonableness.
Issue #1: Does the landlord’s refusal to accept a rental payment satisfy the tenant’s obligation to pay that rent?
[18] In this case, Member Lundy found that there was no error in the decision he was reviewing – the landlord’s mistake, refusing cash payments tendered by the tenant, did not serve to erase or satisfy the tenant’s obligation to pay the rent.
[19] The issue of whether the obligation to pay rent has been satisfied for the purpose of the RTA falls squarely within the expertise of the Landlord Tenant Board. Member Lundy’s determination is entitled to deference.
[20] As previously determined in a number of other Landlord Tenant Board cases, a landlord’s refusal to accept a rental payment does not satisfy the tenant’s obligation to pay rent.
[21] The Member’s decision to uphold the order that he was reviewing falls within the range of reasonable outcomes. There was no error of law.
[22] Nor was there an error of law in not finding estoppel or waiver by the respondent. The respondent persistently took steps to recover rental arrears.
Issue #2: Did Member Lundy make an error in law in exercising his discretion in refusing to set aside the eviction order?
[23] The appellant has not established any errors of law in the Member’s exercise of his discretion.
[24] A number of the appellant’s arguments are essentially a restatement of the issue regarding the refusal of his cash payments. We have already addressed that issue. It was not an error of law.
[25] As well, the appellant raises the Member’s refusal to set aside the eviction order. This decision was reasonable in light of the tenant’s stated position that he would not comply with any orders of the Landlord Tenant Board requiring the payment of the rental arrears. As set out in the decision of this Court in Pensworth Holdings Inc. v. Howe, 2017 ONSC 4061, it is reasonable for a Member of the Landlord Tenant Board to exercise his or her discretion where it is clear that there is no reasonable prospect that a tenant’s conduct will change. It was open to the Member to have regard to all of these circumstances in the exercise of his discretion.
[26] In any event, this issue does not give rise to a question of law.
[27] In oral submissions, other arguments were made based on negligence, defamation, alleged criminal conduct by the respondent, among other things. These submissions do not form the basis for an error of law in the Order under appeal.
[28] The appeal is therefore dismissed.
[29] We note that the respondent allows for an alternative remedy if the appeal is dismissed, including another opportunity for the appellant to pay the rental arrears and avoid the eviction. We conclude that it is appropriate to give the appellant one more opportunity to remain in the premises. We therefore order as follows:
The interim stay of the eviction shall be extended to April 30, 2018.
If the appellant pays the rental arrears of $7,436.85 in full before that date, the eviction order is set aside.
The respondent has informed the Court that it will accept payment of the arrears in cash.
If the arrears are not paid as set out above, the stay of the eviction order in LTB File No. SWL-94048-16-SA-RV shall be lifted on April 30, 2018.
HORKINS J. ENDORSEMENT:
[30] “February 6, 2018. Appellant in person. Rob Winterstein for the respondent. Appeal heard today. Oral reasons provided. Orders:
The appeal is dismissed.
The interim stay of the eviction shall be extended to April 30, 2018.
If the appellant pays the rental arrears of $7,436.85 in full before April 30, 2018, the eviction order is set aside.
The respondent has informed the court that it will accept payment of the arrears in cash.
If the arrears are not paid as set out above, the stay of the eviction order shall be lifted on April 30, 2018.
The respondent’s costs of this appeal are fixed at $500.00 all-inclusive payable by the appellant by April 30, 2018.”
___________________________ Matheson J.
I agree
___________________________
Horkins J.
I agree
___________________________
Glustein J.
Date of Reasons for Judgment: February 6, 2018
Date of Release: February 8, 2018
CITATION: Pfeiffer v. Metcap Living Management Inc., 2018 ONSC 910
DIVISIONAL COURT FILE NO.: DC-17-810 (Hamilton) DATE: 2018-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HORKINS, MATHESON and GLUSTEIN JJ.
BETWEEN:
Doug Pfeiffer
Appellant/Tenant
– and –
Metcap Living Management Inc.
Respondent/Landlord
ORAL REASONS FOR JUDGMENT
Matheson J.
Date of Reasons for Judgment: February 6, 2018
Date of Release: February 8, 2018