Byfield v. Gill, 2021 ONSC 4008

CITATION: Byfield v. Gill, 2021 ONSC 4008

DIVISIONAL COURT FILE NO.: DC-19-0072-00 DATE: 20210602

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Kimberley Byfield and Jamall Williams Appellants/Responding Parties/Tenants

– and –

Diptee Gill Respondent/Moving Party/Landlord

Kimberley Byfield, self-represented Diptee Gill, self-represented, with the assistance of Maria Shepherd

HEARD at Toronto by teleconference: April 23, 2021

Favreau J.

Introduction

1Diptee Gill, the Landlord, brings a motion to quash this appeal and for an order lifting the stay on the eviction.

2For the reasons below, the motion to quash the appeal and to lift the stay is granted.

Background facts

3The Landlord and the Tenants entered into a lease commencing on June 23, 2017. The lease provided that the Tenants were to pay monthly rent of $1,750.00 and specified utilities.

4In 2019, the Landlord brought an application to the Landlord and Tenant Board for an order terminating the tenancy on the basis of unpaid rent.

5In a decision dated July 9, 2019, the Board found that the Tenants did not pay the full amount of rent they were required to pay between June 23, 2017 and July 31, 2019. The Board ordered the Tenants to pay $6,927.00 by July 19, 2021, failing which the tenancy was terminated.

6On July 16, 2019, the Tenants requested a review of the Board’s order. The Board issued a Review Order on July 18, 2019, dismissing the review request. The Board’s Review Order noted the following:

At the hearing on July 3, 2019, the Tenants dispute the calculations of rent claimed on the L1 application from 2017. The Member directed the Tenants to submit their banking financial information to support the rent payments in 2017 and 2018 as noted in paragraph 4 of the order within 48 hours.

Based on the review of the file no post-hearing submissions were received and the Member issued the order based on the best evidence before him.

The Tenants also did not submit new evidence with their review request.

The order sets out a reasonable basis for the determinations made. As stated in Guideline 8 of the Board’s Interpretation Guidelines, the Member’s findings of fact are entitled to considerable deference. Reasonable determinations will not be interfered with on review.

7The Tenants commenced an appeal of the order terminating the tenancy on August 6, 2019. The Notice of Appeal does not state any grounds of appeal.

8There is a dispute between the parties over whether the Tenants properly served the Landlord with the Notice of Appeal. I do not have to decide this issue for the purposes of this motion.

Procedural background

9In December 2020, the Landlord served the Tenants with a motion to quash the appeal. The motion materials include an affidavit sworn by the Landlord in which he states that the Tenants have taken no steps to perfect their appeal since it was commenced and that the rent arrears at the time the affidavit was sworn were over $16,000. The Tenants have also failed to pay utilities, which were in excess of $3,000 at the time the affidavit was sworn.

10The Court convened a case conference on March 25, 2021 for the purpose of scheduling the Landlord’s motion. In a case management endorsement dated March 25, 2021, I directed that the motion was to be heard by telephone conference on April 23, 2021 and that the Tenants were to serve their responding materials by no later than April 16, 2021. I also urged the Tenants to obtain legal advice about the appeal.

11In advance of the motion, the Tenants sent the court a number of documents, consisting of a letter terminating Mr. Williams’s employment due to the COVID-19 pandemic and a number of bank print outs. Before the hearing date, the Court advised the Tenants that the documents could not be considered on their own if they were not attached to an affidavit. The advice to obtain legal advice was renewed. The Tenants did not provide an affidavit in advance of the motion.

12The motion proceeded as scheduled by telephone on April 23, 2021.

13Following the motion, it became evident that the Board’s Order dated July 9, 2019 contained in the Landlord’s motion record was missing a page. The Court contacted the Landlord’s representative to obtain a copy of the complete decision, which she sent to the Court on May 28, 2021.

Analysis

14The Landlord brings the motion on three grounds:

a. The appeal does not raise a question of law and is therefore devoid of any merit;

b. The appeal is an abuse of process given the long period of non-payment of rent and utilities; and

c. The appeal should be dismissed for delay because the Tenants have not taken any steps to perfect their appeal since it was commenced.

15In my view, the appeal should be quashed and the stay lifted on the basis that there is no merit to the appeal and the appeal is an abuse of process. Given these conclusions, it is not necessary to decide whether the appeal should also be dismissed for delay.

The appeal is devoid of any merit

16Section 134(3) of the Courts of Justice Act, R.S.O 1990, c. C.43, gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal".

17Pursuant to section 210(1) of the Residential Tenancies Act, 2006, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.

18In Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada explained that “questions of law are questions about what the correct legal test is”.

19As stated above, in this case, the Notice of Appeal does not set out any grounds of appeal.

20During the argument of the motion, I asked Ms. Byfield on what basis she says the Board’s order was wrongly decided. She stated that the amount of arrears was miscalculated. She also said that she and Mr. Williams should not be required to pay all outstanding rent and utilities because the Landlord has failed to provide sufficient heat to the rental unit.

21Even if these grounds of appeal were properly set out in the notice of appeal, they do not raise a question of law. The issue of whether the Board calculated the right amount of arrears is a question of fact, not a question of law, and is therefore not a proper ground of appeal to this Court. The issue of whether the Board should have reduced the rent owing due to issues about insufficient heat is a question of mixed fact and law, and again not a proper ground of appeal to this Court.

22Therefore, I am satisfied that, given that the appeal does not raise any issues of law, it is manifestly devoid of merit and should be quashed on this ground alone.

The appeal should be dismissed as an abuse of process

23This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the sole purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34.

24In this case, the Tenants have persistently failed to pay their rent. At the time of the hearing before the Board, the Board noted that the Tenants had made a $3,500 payment in advance of the hearing, but at that time they still owed almost $7,000 in rent. By the time the Landlord served his motion record in December 2020, the outstanding rent was over $16,000. At the hearing, the Tenant advised me that rent payments had been made since then. The Landlord agreed that some payments were made but contested the amount. In any event, there was no dispute that a significant amount of arrears were still owing. In the circumstances, there is a clear pattern of non-payment of rent.

25The tenants commenced the appeal without stating any grounds of appeal and have taken no steps to perfect the appeal since it was commenced almost two years ago. They have a persistent pattern of non-payment of rent, only making payments when threatened by legal proceedings. In the circumstances, I am satisfied that the appeal is an abuse of process, brought for the purpose of obtaining an automatic stay of eviction without any intention to pursue the appeal on the merits.

Whether the appeal should be dismissed for delay

26Given my conclusion that the appeal should be dismissed as devoid of merit and as an abuse of process, I do not need to go through the test to determine whether it should also be dismissed for delay. However, the lengthy delay and the lack of merit to the appeal all suggest that the appeal should also be dismissed for delay.

Conclusion

27For the reasons above, the motion is granted and I make the following order:

a. The appeal is quashed;

b. The stay of eviction is lifted; and

c. The Sheriff’s Office is directed to enforce the eviction, but not before June 30, 2021.

28Given that the Landlord was not represented by a lawyer, I make no order as to the costs of the motion.

___________________________ Favreau J.