CITATION: Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123
DIVISIONAL COURT FILE NO.: 908/21
DATE: 2022-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
STEWART, KURKE, AND COPELAND JJ.
BETWEEN:
Valerie Guillaume
Applicant/Moving Party
– and –
Barney Rivers Investment Inc. and Landlord and Tenant Board
Respondent/Responding Party
Valerie Guillaume, acting in person
No responding submissions made
HEARD: February 16, 2022, in writing
REASONS FOR DECISION
[1] This is a motion to review the order of Matheson J. of January 12, 2022, dismissing Ms. Guillaume’s primary heading of interim relief, to be restored to leased premises pending disposition of an appeal in this court (2022 ONSC 271).
[2] Because of the need for an expeditious decision on this review motion, the moving party requested that it be heard in writing, to be based on the materials before the motion judge and her additional written submissions delivered by email. The responding party elected not to file responding submissions on the review motion, thus leaving it to the court to decide the motion on the basis of the materials that had been before the motion judge, the motion judge’s decision, and the additional material sent by the moving party.
[3] Upon reviewing the materials, as described above, the panel was satisfied that it could adjudicate the review motion fairly without oral submissions.
Review of an order of a single judge of the Divisional Court
[4] This is a motion to set aside or vary an order of a single Divisional Court motion judge pursuant to s. 21(5) of the Courts of Justice Act. The test on such a review is well established in this court: a motion to review is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact: Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div. Ct.), at para. 2; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518, at para. 7 (Div. Ct.). Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations”: Franchetti v. Huggins, 2022 ONCA 111, at para. 5.
The motion judge’s decision
[5] The motion judge’s decision was an exercise of discretion. Although she declined to order that Ms. Guillaume be permitted to occupy the premises pending the appeal to this court, she ordered the appeal expedited and she ordered that the landlord not be permitted to re-lease the premises pending determination of the appeal. This order balanced the interest of the parties in a manner consistent with equity and limited the period of potential prejudice to both parties to the time required for the expedited appeal.
[6] The underlying purpose of an interim order, such as the one sought in this case, is not to vindicate rights pending the hearing of the appeal, but to preserve the court’s ability to do justice at the end of the case, and to limit or eliminate prejudice to both parties pending completion of the proceedings in this court.
The issue on appeal
[7] The Landlord and Tenant Board (“LTB”) found that Ms. Guillaume was not a tenant and thus was not entitled to the protection afforded tenants under the Residential Tenancies Act. Ms. Guillaume has been out of the premises since the summer of 2021. The appeal to this court is from that LTB decision.
[8] As a consequence of the decision of the motion judge, the appeal is scheduled for hearing on April 13, 2022 – which expedites the appeal process in this court to roughly four months from commencement of the appeal to the hearing date.
The issue before the motion judge
[9] The motion judge correctly characterized the issue before her as requiring her to apply the test in RJR-MacDonald v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. She found that the appeal meets the low bar to establish a serious issue to be tried but concluded that the tenant did not establish irreparable harm. This is a factual finding, rooted in the record, and discloses no error. The motion judge also found that the balance of convenience weighed against placing the moving party in the premises, but also weighed in favour of prohibiting the landlord from leasing the premises to anyone else pending the determination of the appeal. As the motion judge expressed, this balance limited the risk of changing the status quo in a way that could lead to complications upon disposition of the appeal in this court.
[10] The motion judge applied the correct legal test, made no palpable and overriding error of fact, and her exercise of discretion discloses no basis for this panel to intervene
The moving party’s argument
[11] The moving party’s argument is largely premised on two points. First, she argues that on the merits she was a tenant and so her rights as a tenant should be vindicated. Second, she argues that the LTB found that she was a tenant in a prior interim ruling. Neither of these arguments discloses a basis to interfere with the motion judge’s decision.
[12] In respect to the first argument, it is encompassed in the motion judge’s finding that there is an arguable appeal. The moving party’s authorities – cases in which opportunities were given to tenants by the LTB to “preserve” their tenancies – are distinguishable, as involving situations in which there was no dispute that there was in fact a “tenancy”, which is not the situation here. The second argument is without merit for the reasons expressed by the motion judge. The prior ruling did not establish that the moving party was a tenant, but merely preserved her rights to make that argument in a subsequent hearing before the LTB.
[13] A motion for interim relief is not a motion for summary judgment. The motion judge did not err in limiting her assessment of the merits to her finding that there is an arguable appeal. The moving party’s arguments on the review motion do not raise an issue on review in respect to the motion judge’s application of the test for interim relief to the facts as she reasonably found them to be.
Disposition
[14] The review motion is dismissed. Since the responding party chose to file no responding submissions on the motion, there shall be no order as to costs.
E.M. Stewart, J.
A.D. Kurke, J.
J. Copeland, J.
Released: February 22, 2022
CITATION: Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123
DIVISIONAL COURT FILE NO.: 908/21
DATE: 2022-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
STEWART, KURKE, AND COPELAND JJ.
BETWEEN:
Valerie Guillaume
Applicant/Moving Party
– and –
Barney Rivers Investment Inc. and Landlord and Tenant Board
Respondent/Responding Party
REASONS FOR JUDGMENT
Released: February 22, 2022