Trudelle Court Apartments Limited v. Tracy, 2019 ONSC 3495

CITATION: Trudelle Court Apartments Limited v. Tracy, 2019 ONSC 3495

DIVISIONAL COURT FILE NO.: 60/19

LANDLORD AND TENANT BOARD NO: TEL-93215-18-IN DATE: 20190605

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

TRUDELLE COURT APARTMENTS LIMITED

Mark W. Melchers, for the Moving Party (Respondent in Appeal)

Moving Party (Respondent in Appeal)

– and –

JAMES TRACY

James Tracy, acting in person

Responding Party (Appellant in Appeal)

HEARD at Toronto: June 5, 2019

KITELEY J. (Orally)

[1]

Overview

This is a motion pursuant to s. 134 of the Courts of Justice Act to quash the tenant’s appeal from the decisions of the Landlord Tenant Board dated October 29, 2018 and January 10, 2019.

[2]

Background

The tenancy started in 2005. The tenant paid his rent late each month from January 2018 to June 2018 and as of July 4, 2018, the tenant had not paid his rent for July 2018.

3As a result, the landlord issued a Form N4 and a Form N8. The tenant did not pay any amount by the deadline of July 19, 2018 and therefore the landlord issued an L1 Application and an L2 Application. The hearing of the combined notices was scheduled for October 26, 2018.

4At the hearing on October 26, 2018, the tenant asked for an adjournment to November 16, 2018. The Vice-Chair explained that the adjournment was peremptory, that the tenant had to pay his rent for November 2018 into the Board’s trust account on or before November 1, 2018 and that, if the tenant failed to make the payment, the Board might refuse to accept the tenant’s evidence and submissions at the hearing on November 16, 2018.

5The order arising from the October 26, 2018 attendance indicates that the tenant did not attend that day but was represented by an agent. That matters not. He was required to attend and he did not attend and an order was made. He was required to inform himself about the terms of the order and comply.

6The tenant did not pay any amount into the Board’s trust account by November 1, 2018 or November 16, 2018.

7At the hearing on November 16, 2018, there was no dispute that the tenant had not paid the rent he owed and, as a result, the Board determined that the tenant owed $5,108.90, the equivalent of five months’ rent.

8At the hearing on November 16, 2018, there was no dispute that the tenant had not paid his rent on time in any month since at least January 2018.

9At the hearing on November 16, 2018, the tenant indicated that he wished to raise issues under s. 82 which allows tenants to raise any issue they could raise if they had filed their own application in response to landlord’s rental arrears’ application. Because the tenant had breached the Board’s interim order by not paying his rent for November 2018, the landlord asked the Board to refuse to accept or consider the tenant’s evidence and submissions with respect to the s. 82 issues. The Board agreed with that submission and did not accept or consider the tenant’s submissions with respect to the s. 82 issues and his claim for an abatement.

10The Board also considered s. 83 of the Residential Tenancies Act, 2006 (the “Act”) and extended the time for the tenant to move to January 31, 2019.

11The Order of the Board is dated January 2, 2019 and was corrected in some manner and dated January 10, 2019.

12The tenant served a notice of appeal on January 31, 2019, the date for vacant possession and, as a result the order was automatically stayed.

13The landlord’s motion to quash the appeal was served in the middle of May. The tenant served a reply affidavit sworn May 29, 2019 in which he confirmed that the landlord had completed most of the required repairs and that he was fully prepared to resume paying rent either to the landlord or to the court.

14At paragraph 21 of his affidavit, the tenant said he felt strongly that he should be entitled to an abatement of rent and that he ought not to be required to pay the full arrears for the appeal to proceed because it would be “financially impossible” for him.

[15]

Analysis

In the factum, counsel for the landlord reviewed the three grounds for appeal set out in the notice of appeal and they are found in paragraph 22 of the factum as follows:

(1) The Tribunal erred in law by failing to consider the tenant’s claims against the Landlord pursuant to Section 82 of the [RTA]. As such, pursuant to Section 83(3), the Tribunal was required by law to refuse the Landlord’s request for an eviction.

(2) The Tribunal erred in law by failing to consider the Tenant’s claims against the Landlord for breaches of their statutory obligations under Sections 20, 22, 23, 25, 27(2) and 27(3) of the [RTA]; and

(3) The Tribunal erred in allowing the Landlord to present and in considering evidence against the tenant that was obtained contrary to the Privacy Act, [R.S.C., 1985, c. P-21].

16As counsel indicated, pursuant to s. 210 of the Act, an appeal from an order of the Board is available only on questions of law. I agree with counsel’s submission that the third ground of appeal is devoid of merit because the Privacy Act does not apply to a tenancy with a private landlord.

17I also agree that the first and second grounds overlap but are essentially referring to decisions of fact and law made by the Board in the exercise of discretion. The tenant argues that the Board erred in law in not taking his abatement claim into consideration. The Board did not consider his abatement claim because he was in breach of the October 26, 2018 Order. The Board exercised its discretion to refuse to entertain his claims because he was in breach. That was a decision of fact and law from which there is no appeal. Those grounds are also devoid of merit.

[18]

Exercise of Discretion

Under the circumstances, the court should exercise its discretion under s. 134(2) to quash the appeal.

19The tenant now says he will pay an amount on account of the arrears. In answer to my questions, he indicated that he is a real estate agent and is expecting to receive commissions in the immediate future on scheduled closings. He asked that the Order be as follows:

(1) He would pay arrears of $6,400 effective tomorrow June 6, 2019;

(2) He would pay the full amount of rent on the 1^st of each month pending the appeal;

(3) He asked that the balance of the arrears or $4,813.14 would not be paid at this time so that he could continue to pursue his abatement claims.

20I am prepared to exercise my discretion to not quash the appeal but on conditions that include immediate payment of a significant portion of the arrears and another date for payment of the balance of the arrears.

21The tenant has taken no steps to pursue his abatement claim since November 16, 2018. He is not entitled to an abatement without court order. In this court in this case, I have no jurisdiction to find that an abatement is appropriate or to fix the amount.

22In exercising my discretion as to the terms of the order going forward and bearing in mind s. 134(2), I am guided by two factors.

23The first factor is that there is no evidence pursuant to s. 134(2) of prejudice experienced by the landlord. It may seem self-evident that not receiving rent constitutes “prejudice” but I cannot take into account self-evident hypotheses. I require evidence of actual prejudice and there is none.

24The second factor I take into consideration is that this tenant has had possession of the unit since 2005. Based on his affidavit, he experienced significant deterioration in his financial circumstances in 2018, the causes of which are included in his affidavit sworn May 29, 2019. He provided additional details in his submissions today which I have not taken into consideration because they were not in the affidavit.

25Suffice it to say that the significant deterioration in his financial circumstances appears not to have been of his own doing. He is now confident of his recovery as indicated in his affidavit. I consider it “just” to give him an opportunity to be reinstated into good standing.

[26]

Order

I turn to the factum at paragraph 2 which is the alternative order sought by the landlord. This is my ORDER:

(1) The tenant shall pay full rent on time on July 1, 2019 and the 1^st of each month pending the hearing of the appeal;

(2) The rent is currently $1,040.17 per month subject to the landlord’s request for an increase above the statutory limit;

(3) The tenant shall pay arrears in two instalments as follows:

(a) $6,400 by June 6, 2019 at 5 p.m. EST payable to the landlord or to whomever the landlord directs in writing;

(b) The balance of the arrears namely $4,818.14 shall be paid by August 6, 2019 at 5 p.m. EST to the landlord or to whomever the landlord directs in writing;

(c) The tenant shall perfect the appeal by August 6, 2019 at 4:30 p.m., the same date as the payment of the second installment, provided that if the tenant meets all of the conditions I have ordered, he will not need to perfect the appeal and the orders dated October 29, 2018 and January 10, 2019 will be set aside.

(4) In the event of a default by the tenant with respect to any of the preceding conditions, the landlord may move without notice to the Registrar of this court and on affidavit evidence of the particulars of such non-compliance, the Registrar shall issue an order dismissing the within appeal and lifting the automatic stays on the order of the Landlord and Tenant Board in file no. TEL-93215-18 issued January 2, 2019 as amended January 10, 2019 pursuant to subrule 63.01(5) of the Rules of Civil Procedure and subsection 25(1) of the Statutory Powers and Procedure Act and directing the court enforcement office (Sheriff) to deliver vacant possession of the rental unit located at 307-30 Trudelle Street, Scarborough, Ontario M1J 1Z2 to the landlord forthwith.

(5) Not as a condition of continuing with the appeal, the tenant shall pay costs of $2,000. The landlord may take steps to collect those costs on or after September 6, 2019.

(6) Pre-judgment interest and post-judgment interest pursuant to the Courts of Justice Act will apply.

(7) Counsel for the landlord is authorized to take out the formal Order without approval of the draft Order by the tenant.

27I repeat, the tenant shall perfect the appeal by August 6, 2019 at 4:30 p.m. provided that, if he meets all the proceeding conditions, he will not need to perfect the appeal and the orders dated October 29, 2018 and January 10, 2019 will be set aside.

28I have endorsed the Motion Record of the Moving Party as follows: “Motion by landlord to quash appeal of Tenant from orders dated October 29, 2018 and January 10, 2019. For oral reasons given, motion granted on conditions.”

___________________________ KITELEY J.