CITATION: Briarlane v. Limas, 2020 ONSC 7118
DIVISIONAL COURT FILE NO.: DC-19-338-00
DATE: 20201125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, BLOOM AND KURKE JJ.
BETWEEN:
BRIARLANE PROPERTY MANAGEMENT INC.
Respondent
– and –
VIRGINIA LIMAS and DANNY CAMPOVERDE
Appellants
Counsel:
Timothy M. Duggan, for the Respondent
Virginia Limas and Danny Campoverde, In Person
HEARD: November 17, 2020
BY THE COURT
Introduction
[1] The Appellants, Virginia Limas and Danny Campoverde (collectively the “Tenants”), appeal pursuant to s. 210 of the Residential Tenancies Act, 2006 (the “Act”) from the orders of the Landlord and Tenant Board (the “Board”) dated May 6, 2019 and June 5, 2019.
[2] The Board’s May 6, 2019 order terminated the Tenants’ tenancy and required that they move out of the rental unit by May 31, 2019, failing which the Respondent, Briarlane Property Management Inc. (the “Landlord”), could file the order with the Sheriff to evict. The June 5, 2019 order denied the Tenants’ request for review and confirmed the May 6, 2019 order.
[3] For the reasons that follow, we dismiss the appeal.
Background
[4] The Tenants rent a ground floor unit at 155 Antibes Drive in Toronto (the “Property”) from the Landlord. As the Board noted in its May 6, 2019 order, there is a history of litigation between the parties.
[5] As a result of the Tenants erecting a fence made from sticks and strings adjacent to their unit in the common area of the Property and placing stakes, pine cones, dead trees and branches inside the fence, on June 8, 2018, the Landlord served the Tenants with an N5 Notice to terminate their tenancy.
[6] On August 30, 2018, following a hearing, the Board issued an order that the Tenants remove the fence and barriers on or before September 11, 2018, failing which the Landlord could apply under s. 78 of the Act within 30 days without notice to the Tenants, for an order terminating their tenancy and evicting them. On September 10, 2018, the Board dismissed the Tenants’ request to review the August 30, 2018 order.
[7] On September 20, 2018 and based on a finding that the Tenants had failed to remove the fence by September 11, 2018 as required by the Board’s August 30, 2018 order, the Board issued an ex parte order terminating the Tenants’ tenancy and requiring the Tenants to move out of the unit by October 1, 2018, failing which the Landlord could enforce eviction.
[8] On September 28, 2018, the Tenants brought a motion to set aside the September 20, 2018 order and obtained a stay of that order. In addition, the Tenants commenced applications before the Board seeking orders that the Landlord had not complied with its maintenance obligations under the Act; had reduced or discontinued a service or facility in the prior 12 months; had substantially interfered with their reasonable enjoyment of their rental unit or residential complex and harassed, coerced, obstructed, threatened or interfered with them.
[9] The Board heard the Tenants’ motion and applications together on October 26, 2018 and February 14, 2019. In a nine-page decision dated February 21, 2019, the Board ordered that the September 20, 2018 order be set aside, and the Landlord’s s. 78 application be dismissed. Further, while the Board found that it was extremely unlikely that the Tenants misunderstood the August 30, 2018 order as they claimed, it gave them the “benefit of the doubt” and amended the August 30, 2018 order to provide that “The Tenants shall remove any and all sticks, branches, pinecones, strings, rods or any other object that is on the stone landscaped area beside the paved walkway, and shall not, in future place any items or objects on that area.”
[10] Also, on February 21, 2019, the Board dismissed the Tenants’ applications.
[11] On April 15, 2019, the Board denied the Tenants’ request to review the February 21, 2019 order.
i. The May 6, 2019 Order
[12] As a result of the Landlord’s allegation that the Tenants had failed to comply with the amended August 30, 2018 order, it commenced an application pursuant to s. 78(6) of the Act for an order terminating the Tenants tenancy and eviction. Rather than hear it without notice to the Tenants, the Board directed a hearing on notice.
[13] The hearing was held on May 2, 2019. On May 6, 2019, the Board issued its decision ordering the Tenants’ tenancy be terminated and they move out of the unit by May 31, 2019, failing which the Landlord could enforce eviction. In reaching that decision, the Board found that the Tenants failed to comply with the amended August 30, 2018 order by not removing large branches and pinecones placed by them in the common areas and by placing two objects, a pinwheel on a stick and a wooden cross decorated with what appeared to be pinecones, in the common area subsequent to the February 21, 2019 order.
ii. The June 5, 2019 Review Order
[14] On May 27, 2019, the Tenants requested that the Board review the May 6, 2019 order. The Tenants alleged the Board ignored evidence, took issue with the Board’s findings of fact and accused the adjudicator of “targeting our family due to race, ethnic origin and creed.”
[15] On June 5, 2019, the Board dismissed the Tenants review request without a hearing on the basis that it was not satisfied that there was a serious error in the May 6, 2019 order or that a serious error had occurred in the proceedings. The Board found that the adjudicator’s findings giving rise to the order were “reasonable and supported by the evidence.”
The Issues
[16] The Tenants raise a number of grounds of appeal in their factum which can be summarized as follows:
a) The Board denied the Tenants procedural fairness;
b) The Board was biased;
c) The Board applied the wrong legal test for eviction;
d) The Board failed to give the Tenants an opportunity to remove items they had placed in the adjacent common area as required by ss. 81 and 83 of the Act;
e) The Board failed to discredit the Landlord’s photographic evidence; and
f) The Board failed to consider the Tenants’ photographic evidence.
Standard of Review
[17] As noted, the Tenants’ appeal is pursuant to s. 210 of the Act which provides for an appeal only on a question of law. Accordingly, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 36-37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8.
[18] With regard to issues of procedural fairness, the court must determine whether the correct degree of procedural fairness was accorded based on the events that unfolded, the principles of natural justice and the tribunal’s own rules and procedure.
[19] In determining the content of procedural fairness, the court considers the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27 which include the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; and the choices of procedure made by the agency itself.
Discussion
i. Procedural Fairness
[20] The Tenants submit that the Board denied them procedural fairness by proceeding with the Landlord’s application giving rise to the February 21, 2019 order in the absence of serving them with an N5 Notice of eviction. Specifically they submit that they received no notice after the February 21, 2019 order to remove pinscones, sticks or their cross. They further submitted that the Board dernied them procedural fairness in dismissing their subsequent review request in the absence of a hearing.
[21] In our view, having regard to the provisions of the Act and the Board’s rules of procedure, there is no merit to the Tenants’ submissions that they were denied procedural fairness. At all material times, the Tenants received notice of the proceedings as required by the Act and the Board and were aware of the allegations against them giving rise to the termination of their tenancy and eviction.
[22] The Landlord’s initial application which resulted in the order of August 30, 2018, was commenced with an N5 notice which was served on the Tenants. That order in that proceeding, as subsequently amended by the February 21, 2019 order, provided that in the absence of the Tenants complying with the conditions as directed, the Landlord was entitled to bring an application for termination and eviction without notice to the tenant pursuant to s. 78 of the Act.
[23] Section 78(1) of the Act provides that a landlord may apply to the Board without notice to the tenant for an order terminating the tenancy in circumstances where the landlord previously applied for such an order and the Board imposed a condition or conditions on the tenant and the tenant has failed to meet one or more of the conditions. An N5 notice is not required for a s. 78 application.
[24] The Tenants had notice of and participated in the hearing which resulted in the August 30, 2018 order. Further, they received notice of and participated in the hearing which resulted in the February 21, 2019 order which amended the August 30, 2018 order. In both cases, the Tenants were aware of the terms of the orders and particularly the conditions imposed on them in the amended August 30, 2018 order concerning the requirement to remove, among other things, pinecones and sticks from the common area and not to place any items or objects thereon. They were also aware that if they failed to comply with the conditions, the Landlord could move before the Board without notice to them for an order terminating their tenancy and evicting them. An N5 notice was not required.
[25] With respect to the June 5, 2019 review order, rule 26 of the Board’s Rules which is authorized by s. 22.1 of the Statutory Powers Procedure Act, R.S. O. 1990, c. S.22, as amended, provides for the review of the Board’s orders. The rule sets out a two-stage process consisting of a preliminary review which is conducted on an ex parte basis to determine whether the order requested to be reviewed contains a serious error or whether a serious error occurred in the proceeding. The member conducting the review may, among other things, dismiss the request or direct a hearing into some or all of the issues raised in the request.
[26] In this case, the Tenants’ review request of the February 21, 2019 order was initially considered by the Board as a preliminary review in accordance with r. 26. The Board considered the order and the Tenants’ submissions and was not satisfied that there was a serious error either in the order or the proceeding. Accordingly, it dismissed the request.
[27] For the abopve reasons, we do not consider there was any denial of procedural fdairness to the Tenants in respect of either the May 6, 2019 order or the June 5, 2019 review order.
ii. Bias
[28] The Tenants submit that the Board was biased. Specifically they point to comments made by the Member who presided at the May 6, 2019 hearing at an earlier hearing in which they were involved.
[29] As noted in Roberts v. R., 2003 SCC 45, there is a strong presumption of judicial and quasi-judicial impartiality. In order to overcome that presumption, the burden is on the party alleging bias to provide strong cogent evidence in that regard. The Tenants have provided no such evidence in this case. There is no transcript of the earlier hearing before us. The Tenants’ description of the comments made, however, amount to nothing more than the Member controlling the process. Further, a review of the transcript of the proceedings before the Board on May 6, 2019, raises no indication whatsoever of any bias by the Board towards the Tenants.
[30] There is no basis for the Tenants’ bias allegation.
iii. Wrong Test for Eviction
[31] The Tenants submit the Board applied the wrong legal test for eviction because it failed to consider s. 235 of the Act. Section 235 provides that any landlord or superintendent who knowingly harasses a tenant or interferes with a tenant’s reasonable enjoyment of a rental unit or residential complex is guilty of an offence.
[32] Section 235 has no application to the Landlord’s application which was brought pursuant to s. 78 and based on the Tenants’ breach of the amended August 30, 2018 order. Further, the Tenants’ allegations of harassment and interference with reasonable enjoyment were heard by the Board and dismissed in the February 21, 2019 order.
iv. Sections 81 and 83 of the Act
[33] The Tenants submit that the Board erred in failing to provide them with adequate time to remove their items from the common area contrary to ss. 81 and 83 of the Act. Section 81 deals with the time period for an eviction order to expire and s. 83 grants the Board discretion to refuse to grant an eviction order if, “having regard to all the circumstances, that it would be unfair to refuse” or postpone enforcement of the eviction for a period of time.
[34] Neither s.81 nor s. 83 applies. The six-month time period in s. 81 begins to run on the day the eviction order takes effect. Given the Tenants’ appeal of the May 6, 2019 order, together with the stay of that order, the eviction order in issue here has not yet become effective.
[35] Section 83 was considered by the Board in the initial August 31, 2018 order as part of the Landlord’s initial application for an order to evict. The Board did not consider, having regard to all the circumstances, that it would be unfair to evict. Section 83 was not applicable to the May 6, 2019 order which was a s. 78 application.
v. Photographic Evidence
[36] The Tenants submit that the Board failed to discredit the Landlord’s photographic evidence and consider their photographic evidence.
[37] At the May 2, 2019 hearing, the Tenants took issue with the Landlord’s pictures based on their allegation the Landlord had placed the pinecones that were visible in the photos. The Board accepted the Landlord’s evidence that their cleaner had accidently removed the pine cones while cleaning the common area and when they learned of that, they immediately had the pine cones replaced. Regardless of the pictures, Ms. Limas admitted at the hearing that both the cross and the pin wheel had not been removed from the common area as ordered.
[38] Further, there is no indication in the record that the Board refused to accept any photographic evidence from the Tenants.
[39] For the above reasons, the Tenants’ appeal from both the May 6, 2019 and June 5, 2019 orders of the Board is dismissed.
[40] The Landlord was successful on the appeal and is entitled to its costs on a partial indemnity basis. Having regard to the issues raised and the Landlord’s Cost Outline filed, we consider that a fair and reasonable cost award is $5,000, inclusive of HST. Payable forthwith.
L.A. Pattillo J.
I. Bloom J.
A. Kurke J.
Released: November 25, 2020
CITATION: Briarlane v. Limas, 2020 ONSC 7118
DIVISIONAL COURT FILE NO.: DC-19-338-00
DATE: 20201125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, BLOOM AND KURKE JJ.
BETWEEN:
BRIARLANE PROPERTY MANAGEMENT INC.
Respondent
– and –
VIRGINIA LIMAS and DANNY CAMPOVERDE
Appellants
REASONS FOR JUDGMENT
BY THE COURT
Released: November 25, 2020