Court File and Parties

CITATION: Yusheng Cheng v. Toronto Community Housing Corporation, 2024 ONSC 4252

DIVISIONAL COURT FILE NO.: 183/24

DATE: 20240729

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Yusheng Cheng, Appellant

-and-

Toronto Community Housing Corporation, Respondent

BEFORE: FL Myers J

COUNSEL: Yixin Wang, for the appellant Spencer Toole, for the respondent Nicola Mulima, for the Landlord and Tenant Board

READ: July 29, 2024

Endorsement

[1] In my order of April 19, 2024, as amended on July 18, 2024 and reported as 2024 ONSC 2306, I scheduled a motion in writing for Ms. Cheng to seek an extension fo time to appeal the order of the Landlord and Tenant Board dated February 2, 2024.

[2] Ms. Cheng was evicted from her rental unit last fall because she violated a prior order of the Board requiring her to maintain the cleanliness of the rented premises. On finding that Ms. Cheng violated the terms of her prior agreement, the Landlord and Tenant Board made an order evicting Ms. Cheng without notice to her.

[3] Mr. Cheng moved to set aside that order but she was unsuccessful.

[4] Ms. Cheng waited over two months to apply for a reconsideration of the order dismissing her request to set aside the eviction order. Before she applied for the reconsideration, the sheriff evicted her. She may not have known about the eviction because she had been living in a shelter for over a year due to the unhabitable condition of her unit.

[5] In my April endorsement, I required Ms. Cheng to move for an extension of time in writing and I provided her with the applicable multi-factor test to extend the time for an appeal.

[6] Ms. Cheng appointed counsel on June 6, 2024. Mr. Wang has delivered an affidavit of Ms. Cheng and one of his own to support the motion to extend the time to appeal. The landlord has not responded.

[7] Ms. Cheng’s evidence is that she is 77 years old. She immigrated to Canada in 1977. Prior to that she was a university teacher in medical school in China and she had been a visiting scholar in the US.

[8] Ms. Cheng is single and has no children. Here parents are deceased. Her only relative is a sister in the US.

[9] Ms. Cheng needs to use a wheelchair for mobility due to severe issues with her knees that developed in 2004.

[10] Ms. Cheng’s evidence about the timing of the appeal is as follows:

6. Although I had legal representation before, I was never advised of the requirement to appeal the order within 30 days after being given the order. I did not receive the order issued by the Landlord and Tenant Board on November 24, 2023, personally. However, my former counsel notified me of that order in late December 2023. I do not have access to computer at my residence and would be required to travel to a public library to use one with the assistance of library staff. Additionally, the library was closed from October 2023 to February 2024, during which I had no access to a computer. This hindered my ability to initiate this appeal. I did not know about the right to appeal until March 2024. After that, I quickly prepared the appeal documents with the assistance of a paralegal.

7. I am advised by Mr. Wang that the rental unit has already been re-let. My only objective in pursuing this appeal is to convince the court that the eviction order was unlawful.

[11] Mr. Wang testifies that he is acting for Ms. Cheng on a pro bono basis. That is commendable. He provides the following chronology:

(a) On March 16, 2022, the Landlord and Tenant Board ("the LTB") issued an order (attached as Exhibit "A") requiring Ms. Cheng to meet certain conditions regarding the maintenance of the rental unit;

(b) In or around June 2023, the respondent applied for and obtained an ex parte order (attached as Exhibit "B") terminating Ms. Cheng's tenancy due to her failure to maintain the rental unit and balcony in a safe, clean, and uncluttered condition below a level 3 on the Clutter Image Rating Scale for a period of two years beyond May 31, 2022…;

(c) Subsequently, Ms. Cheng brought a motion to set aside the eviction order;

(d) On September 5 and November 6, 2023, the parties and their legal representatives attended the hearings for the motion to set aside the eviction order;

(e) On November 24, 2023, the LTB issued an order (attached as Exhibit "C") denying Ms. Cheng's motion to set aside the eviction order;

(f) On February 2, 2024, the LTB issued an order (attached as Exhibit "D") denying Ms. Cheng's request to review the order; and

(g) Subsequently, Ms. Cheng filed a notice of appeal dated March 13, 2024 (attached as Exhibit "E") with this court.

[Emphasis in original]

[12] Ms. Cheng was represented at the Board hearing. Although the Board’s decision was released November 24, 2023, Ms. Cheng did not seek a review until January 26, 2024. The reconsideration was denied just days later, on February 2, 2024, because Ms. Cheng did not provide details of any alleged error by the Presiding Board Member.

[13] Ms. Cheng’s delivered her Notice of Appeal to this court two weeks after the thirty-day appeal period. It expresses many concerns with the behaviour of the landlord. But, on my reading, it does not raise explicitly any issue of law for appeal under s. 210 of the Residential Tenancies Act, 2006, SO 2006, c 17.

[14] Mr. Wang’s affidavit discusses the tenant’s position before the Board. Essentially, she argued that the landlord’s failure to maintain her refrigerator forced her to temporarily store perishables on her balcony and in her bathtub. Mr. Wang concludes:

7. Under subsection 78( 11 )(b) of the Residential Tenancies Act, if the respondent makes a motion to set aside the ex parte order, the LTB shall, after a hearing, make an order setting aside the order if the LTB is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order. Although the hearing officer acknowledged the duty to consider all the circumstances in the reasons, it appears that he did not address Ms. Cheng's complaints about the landlord's failure to maintain and repair the rental unit.

8. Accordingly, I believe that Ms. Cheng has a good basis for asserting that the LTB made the following error of law:

The LTB erred in law by failing to undertake its statutory duty under subsection 78(11)(b) of the Residential Tenancies Act to have regard to all the circumstances including the landlord's failure to maintain and repair the rental unit and in considering those facts in determining whether it would not be unfair to set aside the order of eviction.

[Emphasis added.]

[15] The Board’s decision included the following findings:

1. The Tenant concedes that the Tenant did not meet a condition specified in the order issued by the Board on March 16, 2022 with respect to application TSL-11568-19, but requests that the order be set aside under subsection 78(11)(b) on the basis that it would not be unfair to set aside the order.

2. After considering all of the circumstances, including those outlined below, I find that it would be unfair to set aside order LTB-L-034440-23

3. Finally, the fact of the Tenant stacked garbage in her bathtub, drew the shower curtain, and then got upset that the Landlord opened the shower curtain to discover the garbage, displays both an awareness of the contents of order TSL-11568-19 and an active attempt to cover up her breach of that order.

4. The Tenant submits that she has rectified her breach of order TSL-11568-19.

5. I also do not find this to be credible.

6. I am aware that the Tenant is an elderly person with a disability and language barriers and that the rental unit is rent-geared-to-income. While these factors speak in favour of relief from eviction, I find the case for relief from eviction to be significantly blunted by the fact that the Tenant has been staying in a shelter for the last 1.5 years. The Tenant claims the shelter is only available to her because she has a rental unit however this allegation appears implausible on its face and I am not satisfied that the Tenant met the burden of proving this as she did not provide any evidence to support her allegation. As a result, I have no reason to believe that she will not be accepted by a shelter if the motion is denied.

[16] As Mr. Wang noted, the Presiding Board Member did indeed refer to the legal test under s. 78(11)(b). In light of Ms. Cheng’s concession that she failed to meet a condition of the outstanding order, the residual fairness of an eviction was practically speaking the only issue for the Presiding Board Member. He found against the tenant’s credibility and expressly weighed factors going to the fairness of an eviction. Mr. Wang’s evidence (actually a submission) is that the Member’s failure to expressly weigh the allegation that the refrigerator was broken amounts to an issue of law for appeal.

[17] If the refrigerator was broken, that would go to undermine the finding that the tenant breached the outstanding order at all. It would not be consistent with Ms. Cheng’s concession that she was in breach of the prior order. It is implicit in the Presiding Board Member’s disbelief of Ms. Cheng’s evidence and his finding that Ms. Cheng actively hid food in the bathtub, that the Presiding Board Member did not accept that there was a problem with the refrigerator that lay at the landlord’s feet.

[18] The state of repair of the refrigerator had been an issue between these parties in the past. In a prior hearing, Ms. Cheng testified that the refrigerator broke in February, 2019 but she did not report it to the landlord until July, 2020. The landlord repaired it immediately after receiving the report. Then, in July, 2021, the tenant reported that the refrigerator door would not close. The landlord’s evidence was that it promptly sent a repairman who found no issues with the door seal. Rather, the door would not close because Ms. Cheng crammed the refrigerator too full of food containers. An issue developed again in early 2022. The Board held that, “…each time an issue has arisen with the fridge, the Landlord has responded in a timely and reasonable manner.”

[19] While none of that is specifically applicable to this hearing, it demonstrates the factual nature of the alleged refrigerator problem. That is, to consider whether the landlord’s failure to maintain the refrigerator caused the tenant to keep unrefrigerated food was a matter fo fact. Then, the fairness of maintaining an eviction would be a question of applying the law to the facts as found. That is a question of mixed fact and law. Moreover, as the determination of fairness is quintessentially discretionary, an appeal would have to be based on a Presiding Board Member having made an error in principle rather than just a contest as to his weighing of the various factors at play or potentially at play.

[20] Under s. 210 of the Residential Tenancies Act, 2006, this court’s jurisdiction on appeals is limited to hearing questions of law. The Divisional Court cannot hear appeals based on questions of fact or mixed fact and law (unless there is an extricable question of law presented). Last week Justice Stratas wrote about recognition of limits on an appeal court’s jurisdiction in similar circumstances to this case.

[21] In Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122, the court was asked to hear an appeal from an administrative tribunal. As is the case here, the right of appeal to the Federal Court of Appeal was subject to a statutory limit. Justice Stratas wrote:

[8] But even where we grant leave, this issue always remains live: whether we have a “question of law or of jurisdiction” before us under subsection 64(1) goes to our subject-matter jurisdiction. We cannot take on things that Parliament forbids us from taking: See Emerson at para. 9, citing Green v. Rutherforth (1750), 27 E.R. 1144, 1 Ves. Sen. 462, at page 471; Penn v. Lord Baltimore (1750), 27 E.R. 1132, 1 Ves. Sen. 444, at page 446; Attorney General v. Lord Hotham (1827), 38 E.R. 631, 3 Russ. 415; Thompson v. Sheil (1840), 3 Ir. Eq. R. 135. And of even longer standing is the principle of legislative supremacy, one corollary of which is that Parliament’s laws bind courts, just like everyone else: Re: Resolution to amend the Constitution, 1981 25 (SCC), [1981] 1 S.C.R. 753, 125 D.L.R. (3d) 1 at 805-806 S.C.R.; Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paras. 71–72; Ref. re Remuneration of Judges of the Prov. Court of P.E.I.; Ref. re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 317 (SCC), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 at para. 10.

[9] In considering our jurisdiction in cases like this, we must remain on high alert. The say-so of a party that a “legal test” or “the Act” is involved is not enough. “Skilful pleaders” who are “armed with sophisticated wordsmithing tools and cunning minds” can express grounds in such a way as to make them sound like legal questions “when they are nothing of the sort”: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 49. Put another way, “the mere say-so of a party that a ‘legal test’ is implicated” or the expression of grounds of appeal “in an artful way to make them appear to raise legal questions when they do not” is “insufficient to found an appeal”: Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 51.

[10] Instead, we must look at the substance of what is being raised, not the form. See generally JP Morgan at paras. 49-50, cited in Emerson at para. 29; British Columbia Broadband at para. 51.

[11] In this appeal, Halton offers a number of grounds for setting aside the Agency’s decision and phrases them as legal issues—for example, adequacy of the Agency’s reasons—to try to get past the limitation in subsection 41(1). However, in my view, Halton’s real concern is mere disagreement with the Agency’s weighing of various factors and its conclusion that the location of the railway line is reasonable, matters we are powerless to address.

[Emphasis added.]

[22] In my view, this is exactly what has happened here. The tenant does not agree with the outcome of the balancing of factors conducted by the Presiding Board Member. There was no failure to apply or construe the statutory test. The tenant sadly does not see the fairness of the landlord’s concerns with her hoarding unrefrigerated food in her apartment. That does not present a question of law for appeal..

[23] Given that Ms. Cheng that she did not exercise diligence as to her appeal rights and that she has not presented an issue of law for appeal in any event, I would not be inclined to extend the time for her to appeal.

[24] Stepping back to consider the overall justice of the case, I have little doubt that this is a difficult and sad case. But having failed at the Board, it is not open to Ms. Cheng to claim that her eviction was unlawful. As she had not been living in the unit for some lengthy period of time before the eviction last fall due to lack of habitability of the unit, this is not a case that should encouraged to continue. The court is not the correct forum to help Ms. Cheng.

[25] The motion to extend the time for appeal is dismissed. If the landlord seeks costs of the appeal, it may submit no more than three pages of submissions and a Costs Outline by August 6, 2024. Ms. Cheng may respond with up to three pages of submissions and a Costs Outline by August 13, 2024.

Date: July 29, 2024