CITATION: Tataw v. Minto Apartment L.P., 2023 ONSC 4238
DIVISIONAL COURT FILE NO.: 380/22 DATE: 20230803
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Lederer and Charney JJ.
BETWEEN:
GIANNA TATAW
Ms Tataw, self-represented and with
assistance from Mercy Tataw
Tenant / Appellant
– and –
MINTO APARTMENT LIMITED PARTNERSHIP
Martin Zarnett, for the Respondent
Katia Snukal, for the LTB
Landlord / Respondent
HEARD at Toronto (by videoconference):
February 14, 2023
REASONS FOR DECISION
D.L. Corbett J.
[1] This is an appeal from the Landlord and Tenant Board (“LTB”), seeking to set aside an eviction order and related relief. The decision below discloses no reversible error. Further, the LTB eviction order was enforced by the Sheriff and the premises have been relet to another tenant. These events were not precluded by a stay or other order, and thus the appellant could not have been restored to the rental unit, even if her appeal had succeeded. Therefore, for the following reasons, I would dismiss the appeal.
Preliminary Issue – Post-Eviction LTB Appeals
[2] An eviction order of the LTB is stayed automatically upon filing of an appeal to this court: Courts of Justice Act, RSO 1990, c. C.43, s. 134; Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 25 and R. 63.01 of the Rules of Civil Procedure. However, where an eviction is carried out by the Sheriff in accordance with an LTB order before a stay is in place, then the situation is different. It is then too late to stay the eviction order, which has been executed. Rather, in this circumstance, the tenant is obliged to move for an interim order from this court for repossession of the unit or an order precluding the landlord from re-renting the unit. In the absence of such an order, the landlord may rent the unit to a new tenant.
[3] That is what happened in this case. The eviction took place on May 30, 2022. No order was made precluding the landlord from re-renting the unit to a new tenant, which it did on September 22, 2022.
[4] Where the eviction or the re-renting of the unit has taken place in violation of a statutory stay or an order of the LTB or of this court, or where the new tenancy is a sham or to a person not at arm’s length from the owner, there may be room to restore a tenant to possession: MacMillan v. Martin, 2022 ONSC 357 (Div. Ct.); Margulis v. E. Manson Investment Limited, 2020 ONSC 7969 (Div. Ct.); Lysak v. Atkinson, 2020 ONSC 6972. That is not this case. The landlord re-rented the unit to a new arm’s-length tenant, who has been in possession since September 2022. In these circumstances, even if the appellant’s appeal were to succeed on the merits, the court would not oust the new tenant to restore the appellants to the unit.
[5] In the alternative, the appellant seeks an order to compel the landlord to “restore” her to a different unit, when it becomes available. There is no statutory or common law authority for such an order, and it misconceives the structure of the Residential Tenancy Act. The Act does not protect the landlord/tenant relationship, but rather the tenant’s interest in the rented unit. Once that interest has been extinguished, there is no jurisdiction to order that the tenant be granted an interest in a different rental unit.
[6] The Act balances the interests of landlords and tenants. It provides substantial security of tenure for tenants – a derogation of the landlord’s common law right to control the use to which it puts its own property. This security of tenure continues until the tenant gives up the tenancy or the LTB makes an order terminating the tenancy. Where the LTB makes such an order, there are rights of reconsideration before the LTB, and appeal rights to this court, either of which may serve to stay an eviction order and delay the date by which a landlord may recover the use of its property. However, tenants must avail themselves of the processes for reconsideration and/or appeal in a timely way if they wish to prevent eviction and loss of the tenancy.
[7] Therefore, I conclude that on the preliminary issue, the remedy of restoration of the tenancy – in the original unit – is not available to the appellants in the circumstances of this case. An order that a tenancy be established for the tenant in another unit owned by the landlord is not available in law.
The Appeal on the Merits
Procedural History
[8] The landlord brought two applications before the LTB. The eviction was carried out in connection with the second such application. In that application, the landlord applied to the Board pursuant to s. 74 of the RTA in respect to rent arrears. The landlord succeeded on this application and obtained a voidable eviction order from the LTB on March 21, 2022. The LTB’s order fixed the quantum of arrears and gave the tenant until April 15, 2022, to pay those arrears (and any other rent that accumulated to that date). The tenant failed to pay in accordance with the LTB’s order, and the landlord filed the order with the Sheriff, who evicted the tenant on May 30, 2022.
[9] After the eviction, on June 8, 2022, the tenant filed a request to review the LTB’s order. On a preliminary basis, on June 9, 2022, the Board declined to intervene on the basis that the payment order did not disclose a serious error, nor had there been a serious procedural flaw in the proceedings. The appellants commenced this appeal from the reconsideration decision in the second application on July 9, 2022.
[10] The landlord’s first application had been brought for an eviction order because of persistent late payment of rent between October 1, 2020 and September 1, 2021. The landlord succeeded on this application, resulting in an order terminating the tenancy dated February 28, 2022. However, the appellants made a timely request for reconsideration of this order, and the order was stayed by order of Member Cho dated May 30, 2022, pending a re-hearing of the first application.[^1] That re-hearing was scheduled to be held on June 22, 2022. At that hearing, the landlord advised the LTB that the eviction had been carried out on May 30, 2022 pursuant to the order granted in the second application, review of the decision on the second application had been denied on June 9, 2022, and therefore the first application was moot (the tenancy having been brought to an end). Given these circumstances, the landlord asked to withdraw the first application.
[11] By order dated July 18, 2022, the Board permitted the landlord to withdraw the first application, which had the effect of terminating the interim stay order granted by Member Cho.
[12] Therefore, as of July 18, 2022, the tenants had been evicted on May 30, 2022 by the Sheriff pursuant to a lawful order of the LTB which had not been stayed, there were no ongoing proceedings before the LTB, and the stay granted by Member Cho in the first application had been terminated by withdrawal of the first application. An appeal had been brought in this court from the LTB decision in the second application, but no stay had been granted because the eviction order had already been carried out. No order was made by the LTB or by this court preventing the landlord from re-leasing the unit.
Issue 1: Multiplicity of Board Proceedings
[13] The appellants argue that it was procedurally unfair for the Board to permit the landlord to pursue two separate proceedings in respect to what is essentially the same issue – late payment and arrears of rent. I do not accept this argument.
[14] Persistent late payment of rent, and non-payment of rent, are related but distinct bases for applications before the Board. Landlords are entitled to be paid rent on time, as it falls due. Where an application is brought in respect to current arrears, if the Board finds for the landlord, the usual order is for a voidable order terminating the tenancy: if the tenant pays up the arrears and further rent accruals by a specified date, then the termination order is voided. Where the Board finds persistent late payment of rent, the Board may terminate the tenancy, or it may impose some other order – for example, for timely future payment of rent, failing which the landlord may seek a termination order.
[15] In this case the landlord sought relief for persistent late payment of rent. That was the subject-matter of the first application. The merits of that application were scheduled for a reconsideration hearing on June 22, 2022.
[16] While the reconsideration hearing respecting persistent late payment was pending, the landlord claimed that the appellants fell into arrears, and it applied for an order terminating the tenancy for this reason. On March 22, 2022, the Board found that there were arrears and made a voidable order requiring the appellants to pay the arrears and further accrued rent by April 15, 2022. The appellants did not seek reconsideration of this order in a timely way and did not pay as ordered by April 15th. The landlord then relied upon the Board’s termination order and requisitioned the Sheriff to obtain vacant possession of the unit, which was done on May 30, 2022. It was not until about a week after the eviction – on June 8, 2022 – that the appellants sought reconsideration of the Board’s March 22, 2022 order – some ten weeks after that order had been made. The reconsideration request was denied on June 9, 2022, and the appellants waited another thirty days to commence appeal proceedings in this court.
[17] It was in this context that the landlord sought to withdraw the first application – based on persistent late payment of rent – at the Board hearing on June 22, 2022.
[18] If the appellants had paid what the Board had ordered in the second application by April 15, 2022, then the Board’s order terminating the tenancy in the second application would have been voided. That would have been an end to the second application. The landlord would then have been entitled to continue with the first application – pursing its claim for termination of the tenancy for persistent late payment of rent. However, since the tenant failed to bring arrears up to date and make the required payment by April 15, 2022, the tenancy was terminated and there was no point to continuing with the first application.
[19] I see no unfairness to the tenants in this process. Late payment and non-payment are related but different problems, and usually lead to different remedies before the LTB. These distinct processes are longstanding LTB practices and are directed to addressing distinct problems in distinct ways. The tenant had notice of and a chance to participate in the LTB processes and the record does not disclose that she was confused about what the processes entailed. I would not give effect to this ground of appeal.
Issue 2: Issue Estoppel / “Res Judicata”
[20] The appellants argue that “late rent is unpaid rent” and that there was an estoppel preventing the landlord from pursuing the second application while the first application was outstanding.[^2] This is, in my view, a restatement of the tenant’s first argument. “Late rent” ceases being “unpaid rent” when it is paid. But it remains “late.” Persistent “lateness”, where payment has been made, may still ground an eviction order, or other relief (such as an order for timely payment failing which an eviction order will be granted).
[21] I accept that there is factual overlap between issues of “late payment” and “non-payment”, but they are distinct concepts under the Act and have long had separate processes before the Board. If these issues were not treated distinctly, as they are, it would create a system where a tenant could stop paying rent in the face of a landlord’s application for persistent non-payment, and the landlord would not be able to do anything about it until its first application was decided on a final basis. That would create an opportunity for abuse of process, and I see no reason to allow that to develop. The Board’s processes are consistent with the Act, its established procedures, and they reduce the risk of abuse of the Board’s process. I do not accept the appellant’s arguments respecting issue estoppel and would not give effect to this ground of appeal.
Issue 3: Loss of Jurisdiction – Effective Date of Termination
[22] The appellants argue that the Board had no jurisdiction to terminate the tenancy in the second application because the tenancy had already been terminated – effective November 2021 – by the order in the first application.
[23] I do not accept this argument. It elevates form over substance.
[24] The order in the first application was made on February 28, 2022, but the appellants sought reconsideration, and the order was stayed on May 30, 2022. The effect of the appellants’ argument would be that a landlord could not pursue an application for unpaid rent while a termination order for persistent late payment of rent was still being contended before the Board or before this court. As a matter of form, the appellants are not entitled to the benefit of a stay of the order in the first application while at the same time being able to rely on that order to preclude other enforcement efforts by the landlord. As a matter of substance, the order in the first application was terminated when the first application was withdrawn, with the result that the tenancy was not terminated as of November 2021. I would not give effect to this ground of appeal.
Issue 4: Procedural Unfairness
[25] The appellants argue that they were denied procedural fairness when they were denied an adjournment to obtain bank records. The gist of this argument is that the appellants were not in arrears, as alleged, and that they could demonstrate this with bank records.
[26] The tenants had notice of the landlord’s allegations and of the date of the hearing, and of the landlord’s position respecting the quantum of arrears. It was for the tenants to obtain their bank records in time for the hearing.
[27] Further and in any event, the appellants have not established that there is any reason to doubt the correctness of the landlord’s rent ledger, which was relied on by the Board to calculate arrears. There was no request to consider additional evidence before the Board in connection with the request for reconsideration, and no application for fresh evidence before us, to substantiate the allegation that the appellant’s bank records would show that they did not owe arrears in rent.
[28] The Board’s ruling on this issue was not procedurally unfair, and there is no basis for this court to conclude that the Board’s ruling – although fair at the time it was made – might work an injustice in light of fresh evidence now available. I would not give effect to this ground of appeal.
Disposition
[29] For these reasons I would dismiss the appeal, with costs to the landlord of $5,000.00, inclusive, payable within thirty days.
“D.L. Corbett J.”
“Lederer J.”
“Charney J.”
Date of Release: August 3, 2023
CITATION: Tataw v. Minto Apartment L.P., 2023 ONSC 4238
DIVISIONAL COURT FILE NO.: 380/22 DATE: 20230803
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Lederer and Charney JJ.
BETWEEN:
Gianna Tataw
Appellant
– and –
Minto Apartment Limited Partnership and Landlord and Tenant Board
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: August 3, 2023
[^1]: The eviction pursuant to the LTB order in the second application, and the stay ordered by Member Cho in the first application, both took place on May 30, 2022 – a coincidence that is not material to this decision.
[^2]: The appellants also characterize this as a matter of res judicata. There was no finding of the Board in the first application giving rise to res judicata in the second application, and the issue is more appropriately characterized as a question of issue estoppel or abuse of process.