Jahan Ali v. Toronto Community Housing Corporation, 2019 ONSC 3627

CITATION: Ali v. Toronto Community Housing Corporation, 2019 ONSC 3627

DIVISIONAL COURT FILE NO.: 758/17

DATE: 20190627

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Edwards, Favreau JJ.

BETWEEN:

JAHAN ALI

Tenant/Appellant

– and –

TORONTO COMMUNITY HOUSING CORPORATION

Landlord/Respondent in Appeal

Jacob de Klerk, for the Appellant

Katie Douglas, for the Respondent

HEARD at Toronto: June 13, 2019

Backhouse, J.

1The appellant was a tenant at #2504 200 Wellesley Street East, a building owned and operated by Toronto Community Housing. She appeals from the following orders of the Landlord and Tenant Board (“LTB”):

(a) the final order of Vice-Chair Guy Savoie dated March 29, 2017 ordering her eviction based on an alleged breach of a mediated settlement (the “eviction order”);

(b) the final order of Member Lang dated November 24, 2017 denying her motion to set aside the eviction order and dismissing the tenant’s application to be put back into possession (the “preservation order”);

(c) the final order of Vice-Chair Usprich dated December 5, 2017 denying the tenant’s request to review the order of Member Lang (the “review order”).

Jurisdiction of the Court

2Section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 provides the Divisional Court with jurisdiction in this matter in respect of an appeal of the order limited to questions of law.

Standard of Review

3The standard of review of a decision of the LTB when interpreting its home statute, regulations and rules is reasonableness: see First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54. In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the LTB’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para.47.

Facts

4In 2015, the appellant accrued arrears leading Toronto Community Housing to apply to evict her. On April 22, 2015, the LTB issued an order finding that she owned $7,895.34 in arrears and evicting her unless she repaid those arrears. At the appellant’s request that the LTB review that order, and on Toronto Community Housing’s consent, the parties entered into a mediated repayment agreement regarding the then existing arrears of $625.¹ The agreement provided that she make an upfront payment of $125 and pay her rent and $30 per month towards her arrears on the first of each month. If the appellant did not comply, it was agreed Toronto Community Housing could reapply to evict.

5The appellant soon breached the mediated agreement and did so more than 12 times in total. On March 29, 2017, the LTB issued an order finding that the appellant had breached the mediated agreement and ordered her evicted. On July 10, 2017 the appellant was evicted from the unit. It has sat empty pending this appeal.

6The appellant moved to set aside that order and filed a T2 application about tenant’s rights with the LTB alleging Toronto Community Housing illegally locked her out of the unit when it evicted her. She alleged that she had not received the eviction order and did not know of her impending eviction until the sheriff arrived at the unit.

7The LTB issued an interim order preventing Toronto Community Housing from re-renting the unit and requiring it to preserve the appellant’s belongings in the unit until the set-aside motion and T2 application were decided.

8On the set-aside motion, the LTB was required to determine:

(a) if the appellant breached the terms of the mediated agreement; and

(b) if she did, whether it would be unfair to set aside the eviction order and grant the appellant relief from eviction in all the circumstances.

9On November 24, 2017, the LTB found that it was uncontested that the appellant had breached the mediated agreement by not paying her rent or arrears payment in March 2017 and that she had breached the mediated agreement at least 12 times in total. The appellant raised an issue of whether Toronto Community Housing was justified in withdrawing her rent subsidy. The LTB found that it was irrelevant as even if the subsidy had not been withdrawn she would have breached the mediated agreement. The LTB found that it would be unfair to set aside the eviction order in the circumstances and refused to exercise its discretion to do so. It found there was no evidence to explain why the appellant breached the mediated agreement, that she had breached more terms than she had met and her history of not making payments meant there was no reason to believe the arrears would ever be repaid. The LTB found that to set aside the eviction order would render the mediated agreement the parties voluntarily entered into meaningless.

10Regarding the T2 application, the LTB found Toronto Community Housing had not illegally locked the appellant out of the unit as it had enforced a legally binding eviction order. The LTB dismissed the set-aside motion and T2 application and cancelled the preservation order, allowing Toronto Community Housing to re-rent the unit.

11On November 30, 2017, the appellant requested that the LTB review the set-aside order. On December 5, 2017, the LTB dismissed the review request, finding that there was no serious error in the set aside order or proceedings below. The LTB found that it was undisputed that the appellant had breached the mediated agreement. The appellant did not attend the hearing but her legal representative argued that it would not be unfair to the landlord to set aside the order but it would be grossly unfair to the tenant. These concerns were found to be a reiteration of the arguments that were or could have been put forward at the prior hearing. The LTB did not agree with the submission that Member Lang found that the concerns of the landlord outweighed the concerns of the tenant- rather, the LTB found that after considering all of the circumstances, Member Lang concluded that it would be unfair to grant the set aside. The LTB found that Member Lang during the hearing and in the order clearly turned her mind to the issues and used her discretion to make a determination which she was in the best position to do.

Issue

12The appellant submits that the LTB failed to apply the correct test under Section 78(11) of the Residential Tenancies Act. Section 78(11) provides that the LTB may set aside the eviction order if it is “satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order.” The appellant submits that this requires a finding of substantial hardship to the landlord if the eviction is not set aside or that there be a balancing of the relative interests of the parties and a determination that any unfairness to one is outweighed by the unfairness to the other. She submits that the unfairness to the landlord in setting aside the eviction is virtually trivial.

13The appellant further submits that the LTB heard no evidence of unfairness to the landlord and therefore it was an error of law to refuse to set aside the eviction order.

Analysis

14The LTB exercised its discretion, based on findings of fact, in ordering that the eviction order should not be set aside under section 78(11) of the Residential Tenancies Act. The appeal on this ground fails as it does not raise an error of law. (Jackson v. Capobianco, 2017 ONSC 3324(Div.Ct), at para.7; Toronto Community Housing Corporation v. Naidoo, 2018 ONSC 2685 (Div.Ct.) at para.30.)

15The appellant cites no caselaw in support of her proposed test under Section 78(11) of the Residential Tenancies Act.

16It is clear from the set aside order and from the appellant’s factum that the LTB made the following findings of unfairness to Toronto Community Housing:

(a) the appellant had breached more terms of the mediated agreement than she had met;

(b) the appellant remained in arrears;

(c) there was no basis to believe the arrears would ever be resolved given her payment history; and

(d) setting aside the eviction order despite the multiple breaches would render the mediated agreement meaningless.

17The appellant has framed this ground of appeal as an error of law arising from findings made in the absence of evidence. However, its real substance is a challenge to the LTB’s assessment of the evidence and application of its findings of fact to the determination of whether it was unfair to grant relief from eviction in all the circumstances. A finding of fact is only reviewable by this court where the LTB made a palpable and overriding error in its determinations. The appellant has identified no palpable and overriding error in the LTB’s findings and therefore no error of law.

18If I had found that the appeal raises an error of law, I nevertheless would have found that the LTB’s decision not to set aside the eviction order was reasonable. The LTB’s exercise of discretion is firmly within its core area of expertise and is entitled to great deference on appeal. The LTB turned its mind to the requirement under section 78(11) to consider all the circumstances and refused to exercise its discretion to set aside the eviction order on the basis of those circumstances. The appellant’s claims that her breaches of the mediated agreement were minor are unsupported by the record. The LTB’s refusal to exercise its discretion to set aside the eviction order was based on its findings that the appellant had breached the mediated agreement at least 12 times and, in many months, had made no payments at all for rent and arrears. It is reasonable for the LTB not to exercise its discretion to set aside an eviction order where it finds the tenancy is unsustainable. Given the LTB’s finding that the appellant could not maintain the tenancy in good standing, it was reasonable for it not to set aside the eviction order.

19The appellant did not lead evidence to establish that it would be unfair to evict her. While apparently available, the appellant did not attend the hearing to provide direct evidence. She cannot now claim the LTB did not take into account evidence of her circumstances when she had the opportunity to present them but chose not to do so.

20The appellant argued the arrears arose from her dispute with Toronto Community Housing about her eligibility for a rent subsidy. The LTB found this was irrelevant as her breaches would have occurred even if she had had the lower rent subsidy.

21The LTB found in the review order that the hearing member had exercised her discretion reasonably in the set-aside order. The LTB found that she had examined all the circumstances and had not given undue weight to Toronto Community Housing’s evidence about unfairness. The LTB found that the hearing member is in the best position to assess the facts and evidence and her exercise of discretion is entitled to deference.

22The LTB had ample evidence to support its findings which were reasonable in the circumstances.

Conclusion

23Based upon the foregoing, the appellant’s appeal is dismissed.

24Costs in the all-inclusive amount of __________are awarded in favour of the respondent.

Backhouse J.

I agree _______________________________

Edwards J.

I agree _______________________________

Favreau J.

Footnotes

1. 1The appellant’s rent subsidy was withdrawn in 2014 because she failed to submit the required income verification. The necessary documents were then submitted and the decision to withdraw her subsidy was reversed which resulted in a substantial decrease in the arrears.