CITATION: Telan v. Elm Place Inc., 2023 ONSC 2528
DIVISIONAL COURT FILE NO.: DC-490/22
DATE: 20230426
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Baltman and Schabas JJ.
B E T W E E N:
ERIN-KATE C. TELAN
Appellant
- and -
ELM PLACE INC.
Respondent
Self-represented
Spencer Toole, for the Respondent
HEARD by videoconference at Toronto: April 4, 2023
backhouse J.
reasons for judgment
Overview
[1] This is an appeal of the Review Decision of the Landlord and Tenant Board (“LTB”), decided by Member Morris on July 11, 2022, upholding a Decision of the LTB, decided by Member Brocanier on February 22, 2022, terminating the tenancy of the Appellant. The Appellant seeks to have both decisions set aside on the basis that the LTB failed to take certain provisions of the Residential Tenancies Act (“RTA”)[^1] into account, constituting an error of law. The Appellant also submits she was denied natural justice in the proceedings below.
[2] For the reasons set out below, I find no errors of law in the Decision or the Review Decision and would dismiss the appeal.
Background
[3] The Appellant is a tenant of the Respondent. The Appellant lost her full-time job in September 2021 and went into arrears on her rent.
[4] On September 9, 2021, an N4 Notice (Notice to End your Tenancy for Non-Payment of Rent) was handed to the Appellant demanding the payment of $1658.30 by September 23, 2021, or demanding the Appellant move out by that date. The Appellant submits she was handed an L1/L9 Application on February 4, 2022 (Application to Evict a Tenant for Non-Payment of Rent and to Collect Rent the Tenant Owes). The L1/L9 application was dated February 3, 2022, and indicated rental arrears were $4733.20. A communication from the Respondent’s representative (D&D Associates) was attached to the L1/L9 application, indicating there was a hearing on February 10, 2022, and seeking a proposed payment plan for the Landlord’s consideration. After the Application was filed, the Appellant paid $2758.30.
[5] Following receipt of the L1/L9 application, the Appellant submits in her factum that she called the Respondent, and then the Respondent’s Agent (D&D Associates). She submits to this Court (and submitted to the Board below) that D&D told her that since she did not receive a Notice of Hearing from the Board, her attendance at the hearing, scheduled for February 10, 2022, was not necessary. The Appellant’s factum indicates that the Appellant’s daughter received a Notice of Hearing for the February 10, 2022 hearing.
Initial Hearing
[6] The hearing was held virtually on February 10, 2022. The Appellant did not attend. The LTB indicated in its Decision that the Appellant was properly served with a Notice of Hearing by the LTB. The Appellant had not paid the total rent required from September 1, 2021 to February 28, 2022.
[7] The LTB determined that, after considering the disclosed circumstances including COVID-19 and the Respondent’s unsuccessful attempt to negotiate a repayment agreement with the Appellant, it would be unfair to grant relief from eviction. The LTB terminated the tenancy with a termination date of March 5, 2022. The termination order was voidable if certain sums were paid. The Decision contained a Schedule to outline the summary of calculations.
[8] After the hearing, the Appellant submits she spoke with the Respondent’s agent who asked why she did not attend the February 10 hearing. She submits he told her she received “bad counsel” when advised to not attend the hearing.
[9] The Respondent submits that on March 16, 2022, a Notice to Vacate was served on the Appellant by the Sheriff. On March 23, 2022, the Appellant requested a review of the Decision, following which the Decision was stayed pending the review.
Review Decision
[10] The Review hearing was conducted virtually on May 9, 2022, before Member Morris.
[11] The Appellant argued that she was not reasonably able to participate at the hearing on February 10, 2022, because she did not receive a Notice of Hearing and because she called the Respondent’s Representative who told her she did not need to attend the hearing if she did not receive a Notice of Hearing. The LTB noted that the Appellant spoke to Tenant Duty Counsel prior to the hearing, and that she was assisted by her daughter.
[12] The LTB denied the request for review. The LTB found the Notice of Hearing was mailed to the Appellant on December 8, 2021 and was not returned as undelivered. It was deemed to have been served on her on December 13, 2021. The LTB found that there was no documentary record of any contact from the Appellant to the Respondent’s legal representative. The Appellant’s evidence was that she received the Landlord’s L1/L9, and that she requested a meeting on February 10, 2022 in response to it. As such, the LTB determined that the Appellant was aware there was a hearing before the LTB on February 10, 2022. The Appellant also knew there was a hearing after it had taken place when she spoke with the Respondent’s agent on February 11, 2022, when he inquired why she did not attend. Despite this, she waited 6 weeks to file a request for review. Even if she did not receive the Notice, the LTB determined that she knew about the hearing, and should have, “as a minimum requirement of due diligence”, attended.
[13] The LTB found she was reasonably able to participate in the February 10, 2022 hearing. The LTB was not satisfied there was a serious error in the order nor that a serious error occurred in the proceedings.
Issues
[14] The following issues arise on this appeal:
Did the LTB ignore the Respondent’s alleged breaches of the RTA?
Did the Respondent and /or its licensed paralegals purposely mislead the LTB?
Was the Review Hearing unfair because the Appellant did not have the opportunity to consult Tenant Duty counsel?
Did the LTB err in making the Review Decision?
Court’s Jurisdiction:
[15] This Court has jurisdiction to hear this appeal pursuant to s. 210 of the RTA. Pursuant to s. 201, the appeal is limited to questions of law alone.
Standard of Review:
[16] Appellate standards of review apply. The standard of review for questions of law is correctness.
Analysis
1: Did the LTB ignore the Respondent’s alleged breaches of the RTA?
[17] The Appellant submits the LTB erred by not applying s. 83 of the RTA whereby an order must be refused if the landlord is in breach of its responsibilities. She argues that the LTB disregarded her evidence that the Respondent’s agents breached ss. 23, 24, 26, and 27 of the RTA. A breach of the RTA must compel the LTB to refuse to grant the eviction order.
[18] The breaches of the RTA the Appellant relies upon are a notice pinned to her door on March 23, 2022 (after the Initial Decision). As well, the Appellant makes submissions of bullying/harassment claims against the Respondent. The Appellant also submits it was an error for the LTB to not have regard for s. 206 of the RTA, and instead rely on the balance of probabilities rather than the law. The Appellant also submits that Member Morris erred by not considering the COVID-19 pandemic during the review hearing.
[19] Section 206 of the RTA applies where the tenant and landlord have come to a settlement/agreement. No settlement/agreement was made in this case. Section 206 has no application to the facts of this case.
[20] The Appellant did not lead evidence at the Review Hearing that the Respondent interfered with her reasonable enjoyment of the unit, harassed her and/or entered the unit without notice. The Appellant did not raise any alleged breaches of the RTA during the Review Hearing and they cannot be raised for the first time on appeal. The date of these allegations are after either the Initial hearing and/or the Review Hearing. They are denied by the Respondent. Even if the Appellant’s allegations were true, they are irrelevant to the merits of the Termination Order and/or Review Decision.
2: Did the Respondent and /or its licensed paralegals purposely mislead the LTB?
[21] The Appellant argues that the Respondent misled the LTB at the Hearing when its licensed paralegal advised the LTB that the Respondent had attempted to work out a payment plan with the Appellant, but had not received a response, was not aware of any circumstances explaining why the Appellant did not attend the Hearing and/or was not aware of any circumstances that would force the LTB to delay or deny an eviction of the Appellant.
[22] The evidence established that the Respondent did attempt to make a payment plan with the Appellant but did not receive a reply, and thus did not mislead the LTB. The Appellant admitted to not making a payment arrangement prior to the hearing. The LTB considered the relevant factors in s. 83, including the impact of COVID-19 and expressed so in its decision and found that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the RTA. There is no merit to these grounds of appeal.
3: Was the Review Hearing unfair because the Appellant did not have the opportunity to consult Tenant Duty counsel?
[23] The Appellant submitted multiple times in her notice of appeal and factum that she was not afforded an opportunity to speak to duty counsel before the Review hearing. The Appellant filed what purported to be a transcript of the Review Hearing which was not prepared by an authorized court transcriptionist, and which left out the passages dealing with the Member arranging for the Appellant to have a 22-minute meeting with duty counsel prior to the Review Hearing proceeding. This necessitated the Respondent ordering an official transcript which refuted the Appellant’s allegation.
[24] Additionally, the Appellant submits she was denied the opportunity to attend the February 2022 hearing and it was an error for Member Morris to not find same. The Appellant submits this error was made because Member Morris relied on the balance of probabilities.
[25] The Appellant’s unsupported allegation that she was advised by the Respondent’s licensed paralegal that she did not need to attend the Hearing was refuted by the Respondent’s receptionist who gave evidence that she would never provide legal advice upon answering a call from a tenant. The Appellant did not produce her phone records as evidence that she had called the Respondent’s paralegal representative as she alleged.
[26] The Appellant’s arguments that she was deprived of procedural fairness are devoid of any merit.
[27] In the Review Decision the LTB found as a fact that the Appellant was properly served with the Notice of Hearing by the LTB via mail for the Initial Hearing. It was mailed on December 8, 2021, deemed to have been served on December 13, 2021 and was not returned undelivered to the LTB. The RTA permits service of a notice by mail. The LTB was entitled to find the Appellant’s reason for not appearing was not reasonable and to find that the Appellant knew of the hearing. The LTB found in the Review Decision:
In fact, even if the Tenant did not receive the notice of hearing, it is undisputed that the Tenant knew about the hearing. Because of this undisputed fact, the Tenant seeks to blame the Landlord’s legal representative for telling her that she did not have to attend the hearing. There is no documentary evidence of this allegation, and MG denied that she would ever provide such advice upon answering a call from a tenant.
Therefore even if the Tenant did not receive a notice of hearing, she should have, as a minimum requirement of due diligence, attended the hearing or had a representative attend the hearing to ask for an adjournment. She did not do so and she did not contact the Board at all until over a month after the order was issued, when she filed her request for a review.
[28] These are findings of fact that are not appealable to this Court. Where the LTB is satisfied that a party failed to attend a hearing due to a lack of diligence on the party’s part, the LTB will be justified in refusing to set aside its order on review. The LTB will be in a position to make a finding of lack of diligence where:
(a) The notice of hearing was sent to the correct address by mail; and
(b) The notice of hearing was not returned to the LTB by Canada Post.
Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div Ct.) at paras 8-9; Boychuck v. JDM Apartments, 2019 ONSC 580 (Div.Ct.) at para.10; Khani v. Zhang, 2019 ONSC 1362 (Div Ct.) at para.21.
[29] The Review Decision found that the Appellant owed more in arrears than she did at the time of the hearing in February 2022, that she did not propose a feasible payment plan at the review hearing and it is not likely that there would be a different outcome even if her review request were to be granted. The Member found that the Appellant had not proved, on a balance of probabilities, that she was not reasonably able to participate in the hearing held on February 10, 2022.
[30] The standard of proof for an applicant before the LTB is on a balance of probabilities. The Appellant’s submission otherwise is incorrect: Sandgecko Inc. v. Ye, 2020 ONSC 7245 (Div.Ct.) para.17; Boychuck v. JDM Apartments, 2019 ONSC 580 (Div.Ct.) at para.4.
Conclusion
[31] In the result, there is no merit to the grounds of appeal. The appeal is dismissed, and the stay of the eviction order is lifted.
Costs
[32] The Respondent requests costs inclusive of disbursements incurred in the amount of $8466.61 on a substantial indemnity basis. The Respondent points out that $900 was attributable to having to obtain an official transcript to refute the Appellant’s falsehood about not having an opportunity to consult duty counsel at the Review Hearing.
[33] Costs are typically modest in landlord and tenant matters. In this case the Appellant made irresponsible and unfounded allegations concerning licensed paralegals and the LTB. Because of this and because of the cost the Respondent was required to incur to order the transcript necessitated by the Appellant’s falsehood about not being given access to duty counsel, costs are awarded to the Respondent in the amount of $2500.00.
Backhouse J.
I agree______________________________
Baltman J.
I agree______________________________
Schabas J.
Released: April 26, 2023
CITATION Telan v. Elm Place Inc., 2023 ONSC 2528
DIVISIONAL COURT FILE NO.: DC-490/22
DATE: 20230426
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Baltman and Schabas JJ.
B E T W E E N:
ERIN-KATE C. TELAN
Appellant
- and -
ELM PLACE INC.
Respondent
REASONS FOR JUDGMENT
Backhouse J.
Released: April 26, 2023