ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Stephen Maphango
Appellant (Tenant)
- and -
Peel Housing Corp O/A Peel Living
Respondent (Landlord)
HEARD: November 26, 2019
ENDORSEMENT
Baltman J
Factual Background
1This is a motion by the Respondent Landlord to quash the Tenant’s appeal on the basis that it does not disclose a question of law and is therefore manifestly devoid of merit.
2In February of 2019 the Landlord began proceedings before the Landlord and Tenant Board (“the Board”) to evict the Tenant on the basis of non-payment of rent. The hearing proceeded on April 10, 2019, at which time the Tenant acknowledged the arrears owing (in excess of $7,000) and stated he could pay them all by May 15, 2019. The Board ordered the Tenant to pay the arrears by May 15, 2019, failing which the Landlord could file the Order with the Sheriff so that eviction could be enforced.
3On May 16, 2019 the Tenant filed a Request to Review an Order with the Board. The Board denied the Request, noting that “the tenant does not dispute that he has made no rent payments since his last payment in November 2018.”
4On June 3, 2019, the Tenant filed a second Request to review an Order with the Board. A second review hearing was scheduled for July 17, 2019, limited to determining the amount of arrears owing.
5On July 17, 2019, the Tenant failed to attend. There was no explanation for the Tenant’s absence. The Tenant’s counsel, who was present, advised he had met with the Tenant a day before and expected the Tenant to attend the hearing. Counsel asked for an adjournment, claiming he needed more time to prepare. The adjournment was denied, “as the Tenant had ample time to prepare since the Notice of Hearing was mailed by the Board on June 3, 2019.” Significantly, no evidence of any rent payments beyond November 2018 was proffered.
6The Tenant has not made any payment since November 2018. The arrears of rent to date now exceed $15,000.
Submissions and Analysis
7The Tenant claims he has suffered numerous injuries and ailments that have prevented him from paying rent. He further claims he has been victimized by various parties in retaliation for this application. In particular, he alleges:
- Employees of the Landlord and of CSIS have broken into his apartment and stolen various documents, including those which support his position on this motion;
- He has been drugged, raped and severely tortured by CSIS agents;
- His apartment contains dangerous levels of cancer causing chemicals;
- He has been diagnosed as “severely disabled” and suffers from PTSD.
8Under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, C. 17, as amended, an appeal lies to the Divisional Court from an order of the Board, but only on a question of law. Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, allows an appellate court to quash an appeal “in a proper case”. An appeal of an order of the Board that does not disclose a question of law may be quashed on the basis that it is manifestly devoid of merit: Jericho Investments Inc. v. Rankel, [2000] O.J. No. 3880; Pan v. Bassett Capital Corporation, unreported Divisional Court Toronto File No. 303/19, July 8, 2019.
9In other words, factual issues that were not determined by the Board cannot be raised for the first time on appeal to the Divisional Court. That is the problem here: all the allegations being raised by the Tenant are a) factual in nature, and b) he raised none of them before the Board. At the first Review he conceded he owed substantial rent. The second Review was limited to determining the correct amount. Even if the Tenant was ill that day his counsel could easily have demonstrated what amounts of rent he had in fact paid. In any case, before the Board neither he nor his counsel blamed his non-payment on the misconduct of others.
10Moreover, even if I had discretion to consider a new issue, I would not in this case, as there is no evidence whatsoever to suggest any of these grounds of appeal have merit. They strike me as a desperate attempt to delay eviction. The Tenant has been living rent free for over a year and now owes over $15,000 to the Landlord. The Landlord is the party suffering ongoing prejudice by this meritless appeal.
Conclusion
11I conclude this appeal is completely devoid of merit. An Order shall issue as follows:
a) The appeal is hereby quashed.
b) The Stay of the Order of the Landlord and Tenant Board (CEL-83393-19) dated April 16, 2019 pursuant to the Statutory Powers Procedure Act or given by the Registrar of this Court is hereby lifted;
c) The Sheriff of the Regional Municipality of Peel is directed to forthwith enforce the Order of the Landlord and Tenant Board (CEL-83393-19) dated April 16, 2019;
d) The approval of the Order as to form and content by the Appellant is dispensed with;
e) The Appellant shall pay costs to the Respondent fixed in the sum of $4,000, inclusive of disbursements and H.S.T.
Baltman J
Released: November 28, 2019
CITATION: Maphango v. Peel Housing Corp., 2019 ONSC 6889
COURT FILE NO.: DC-19-75
DATE: November 28, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Stephen Maphango
Appellant (Tenant)
- and –
Peel Housing Corp O/A Peel Living
Respondent (Landlord)
ENDORSEMENT
Baltman J
Released: November 28, 2019