CTATION: FLIPCA LTD. v. CAMPBELL, 2020 ONSC 6902
DIVISIONAL COURT FILE NO.: 635/19
DATE: 20201113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Baltman, Pattillo and Kristjanson JJ.
BETWEEN:
FLIPCA LTD.
Respondent (Landlord/Responding Party
– and –
Douglas Levitt and Timothy Duggan, for the Respondent
JOHN CAMPBELL
Ismail Idowu Salih, for the Appellant
Appellant (Tenant/Moving Party)
HEARD: November 10, 2020
BY THE COURT:
[1] This is a motion by the Tenant, John Campbell, to vary or set aside the Order of Lederer J., dated February 25, 2020, wherein he granted the Respondent', FlipCA Ltd., ("The Landlord") motion to quash the Tenant's appeal of an eviction Order issued by the Landlord and Tenant Board (the "Board").
[2] At the conclusion of the Tenant's argument we did not call on the Landlord and dismissed the motion with reasons to follow. These are our reasons.
[3] In November 2017 the Tenant rented a residential unit in a condominium building that was owned at that time by Raymond Sartor ("Sartor"). The lease provided for a monthly rent of $3,344.
[4] On June 3, 2019, Sartor sold the residential unit to the Landlord. On June 13, 2019, the Landlord provided written notice of its contact information, including its address, to the Tenant.
[5] The Tenant has not paid the Landlord any rent since July 2019. He now owes over $40,000 in arrears.
[6] In August 2019, after the Tenant failed to vacate the unit following receipt of a Termination Notice, the Landlord brought eviction proceedings before the Board. At the hearing before the Board, the Tenant argued that his obligation to pay rent was suspended under s. 12(4) of the Residential Tenancies Act (the "RTA") because the former Landlord (Sartor) had failed to provide him with his address in the lease, as required under s. 12(1) of the RTA.
[7] The issue of whether Sartor had complied with s. 12 of the RTA had been previously decided by the Board in an earlier proceeding between Sartor and the Tenant. In that proceeding, the Board held that Sartor had provided the Tenant with his address and that he had complied with s. 12 of the RTA.
[8] In its decision dated October 22, 2019, the Board found that the Landlord had in fact provided the Tenant with its address on June 13, 2019, shortly after its purchase of the unit, satisfying its obligation under s. 12 of the RTA and accordingly, the Tenant had no legal basis to withhold rent. It determined that as of that date the Tenant owed $10,017 in arrears of rent. The Board ordered him to pay the outstanding rent in prescribed installments, failing which the Landlord could apply to the Board under s. 78 of the RTA for an ex parte order terminating the Tenant's tenancy and evicting him.
[9] The Tenant requested a review of the s. 78 Order on various grounds. On November 12, 2019, the Board determined there was no serious error in the Order or in the underlying eviction proceeding and denied the Review Request.
[10] November 17, 2019, the Board issued an amended order, correcting a clerical error and provided that the rental arrears were $13,376 and not $10,017 as previously ordered.
[11] On November 20, 2019, the Tenant initiated an appeal to the Divisional Court. His notice of appeal advances two grounds:
a) The Board erred in law in not considering evidence regarding payments he allegedly made to the former landlord; and
b) The Board erred in not determining his allegations regarding the maintenance of the unit.
[12] The Landlord then moved to quash the appeal. On February 25, 2020, Lederer J., sitting as a single judge of the Divisional Court pursuant to s. 21 (3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended ("CJA"), heard the Landlord's motion to quash the Tenant's appeal. He correctly observed that the Tenant's appeal was brought pursuant to s. 210 of the RTA, which stipulates that an appeal can be made only on a question of law. Section 134(3) of the CJA allows an appellate court to quash an appeal "in a proper case". Lederer J. granted the Landlord's motion to quash the appeal on the basis that the issue before the Board – whether the Landlord had provided an address for the delivery of rent – was"at best", a mixed question of fact and law, and therefore not subject to appeal. He further held that the issues of maintenance also did not raise a question of law.
[13] The Tenant now moves under s. 21(5) of the CJA to set aside the Order of Justice Lederer.
The Legal Test
[14] Section 21(5) of the CJA permits a panel of the Divisional Court, on motion, to set aside or vary the decision of a judge who hears and determines a motion pursuant to s. 21(3).
[15] In order to succeed on this motion, the Tenant must demonstrate that Lederer J. made an error of law or a palpable and overriding error of fact. This court is not to hear the matter de novo: Stem Investments Limited v. Ryan, 2016 ONSC 6293 (Div. Ct.) at paras. 9-10; Bernard Property Maintenance v. Taylor, 2019 ONCA 830 (C.A.) at para. 26.
Submissions and Analysis
[16] The Tenant raised numerous arguments in an attempt to demonstrate that Lederer J. erred, either in law or through a palpable misapprehension of the facts. Many of his arguments overlap. In their condensed form, his main assertions are threefold, namely that Lederer J. erred by:
a. Failing to find that the previous Landlord (Sartor) breached s. 12 of the RTA, such that the Tenant was entitled to withhold rent;
b. Making a decision without considering that it conflicted with a decision of Myers J.; and
c. Demonstrating bias while presiding over the hearing of the motion.
[17] There is no merit in our view to any of those assertions. Dealing first with the alleged breach by Sartor of s. 12 of the RTA, the Board, in the prior proceeding between the Tenant and Sartor, found that Sartor complied with his obligations under s. 12. That issue was not before the Board in the Landlord's application. It was also not before Lederer J. and accordingly did not require him to make the impugned finding.
[18] Before us, the Tenant relied on Arora v. Wieleba, 2016 37551, a decision of the Ontario Small Claims Court, to justify his withholding of rent. Arora held that in circumstances where the landlord had not provided a copy of the lease to the tenant, s. 12 of the Act provided a complete defence to the landlord's claim for rent not paid. That is not the case here. Here the Tenant's position is not that he didn't have the lease (which he did) but that he did not have the Landlord's address as required by s. 12(1) of the Act.
[19] In this case, the Board found that the Landlord, upon purchasing the unit which was subject to the lease, gave written notice to the Tenant of its address. As Lederer J. noted correctly, in our view, that was a finding of mixed fact and law, not a question of law alone.
[20] As for the claim of a "conflicting" decision from Myers J., His Honour's decision was made in the context of Sartor's motion for security for costs in the Tenant's appeal from the earlier decision of the Board. It amounted to nothing more than Myers J. acknowledging that on the record before him it was not obvious that the appeal was frivolous. Contrary to the Tenant's assertion, Lederer J. did consider the relevant portion of the transcript from that hearing but, unsurprisingly, did not find it determinative of the issue before him.
[21] Finally, there is nothing whatsoever in the record to support the assertion that Lederer J. displayed bias while hearing the motion. The Tenant was given a full opportunity to respond to the Landlord's motion. That Lederer J. reminded the Tenant repeatedly that he was obligated to pay rent is not a display of bias but a statement of the obvious. Nor do we consider that the record demonstrates that Lederer J. had not reviewed the motion material in advance.
[22] Significantly, the Tenant doesn't dispute that he has been living rent free for 16 months, to the tune of over $40,000. This is nothing more than a desperate attempt to delay eviction. The appeal is utterly meritless. The motion is hereby dismissed.
[23] Having regard to the cost outlines filed by the parties, the Landlord is awarded its costs of the motion which we fix at $5,000 in total. Payable forthwith.
___________________________ Baltman J.
___________________________ Pattillo J.
___________________________ Kristjanson J.
Released: November 13, 2020
CITATION: FLIPCA LTD. v. CAMPBELL, 2020 ONSC 6902
DIVISIONAL COURT FILE NO.: 635/19
DATE: 20201112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Baltman, Pattillo and Kristjanson JJ.
BETWEEN:
FLIPCA LTD.
Respondent (Landlord/Responding Party)
– and –
JOHN CAMPBELL
Appellant (Tenant/Moving Party)
REASONS FOR JUDGMENT
BY THE COURT
Released: November 12, 2020