Court File and Parties
DIVISIONAL COURT FILE NO.: 262-24
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Paul Sweete Appellant
– and –
Sabir Moosa Respondent
Self-Represented Appellant Self-Represented Respondent
HEARD at Toronto: January 9, 2025
O’Brien J.
REASONS FOR JUDGMENT
Overview
1The tenant, Mr. Sweete, appeals an order of the Landlord and Tenant Board dated April 4, 2024. The landlord, Mr. Moosa, had applied to terminate the tenancy and evict him from the rental unit because Mr. Moosa stated he in good faith needed possession of the rental unit for residential occupation. The Board dismissed the landlord’s application in an order dated February 22, 2024 because the residential complex was owned by a corporation.
2The tenant then sought a review of the order. He submitted the Board had made a serious error in the proceedings because the presiding member did not allow the tenant to make submissions on costs. In the April 4, 2024 order now under appeal, the Board dismissed the request for review.
3In this court, the tenant submits he was denied procedural fairness when he was not allowed the opportunity to make submissions at the February 7, 2024 hearing. He emphasizes that he was not permitted to participate in the hearing at all. He also submits the Board erred by not awarding costs. He relies on the long history between the parties, which he says started after he made a complaint to the city in 2015. He submits that the landlord has initiated numerous vexatious proceedings against him that justify a costs award.
4Pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), an appeal to this court from a decision of the Board is limited to questions of law. For the following reasons, the appeal is dismissed.
Was the tenant denied procedural fairness when he was not permitted to make costs submissions at the February 7, 2024 hearing?
5The tenant submits the Board breached procedural fairness by reaching a decision on the landlord’s application without permitting the tenant to make submissions on costs.
6I conclude there was no breach of procedural fairness. The Board orders costs in limited situations. Section 204 of the RTA authorizes the Board to order a party to an application to pay the costs of another party. The amount is to be determined in accordance with the Board’s Rules of Procedure. Rule 23.1 provides that where an applicant is successful, the Board may order the respondent to pay the application fee as costs. That does not apply here as the landlord was not successful.
7Rule 23.3 states that a “party who engages in unreasonable conduct which causes undue delay or expense may be ordered to pay costs to another party.” According to the Board’s Interpretation Guideline on costs, conduct falling within r. 23.3 could include bringing a frivolous or vexatious application or motion, initiating an application or procedure in bad faith, and taking unnecessary steps in a proceeding.
8In the April 4 review order, the Board found that it may have been a breach of procedural fairness not to hear submissions on costs at the February hearing. Even if there was such a breach, there is no breach of procedural fairness before this court because the tenant had the opportunity to make costs submissions before the member hearing the request for review. These submissions were not made orally at a hearing, but given the nature of costs and their limited availability before the Board, this afforded the tenant sufficient procedural fairness on this issue. The tenant’s position on costs was put before a member of the Board, who considered it and determined that costs would not have been awarded in all the circumstances.
Did the Board err by not awarding the tenant costs?
9The tenant submits he was entitled to costs because the landlord initiated a series of vexatious proceedings against him starting with an application commenced in 2021.
10In 2021, the landlord applied for an order to terminate the tenancy because another tenant of the residential complex had kicked the door of the tenant’s unit and caused damage. In a March 2022 order, the Board dismissed the application because the landlord’s testimony revealed the tenant was not in the complex at the time of the damage. The landlord then initiated a claim against the tenant in Small Claims Court.
11The landlord subsequently applied to terminate the tenancy because he, in good faith, required possession for the purpose of residential occupation for at least one year by his son. In an August 2023 order, the Board dismissed the application because the landlord had not given the tenant compensation of one month’s rent before the termination date as required by ss. 48.1 and 55.1 of the RTA.
12The tenant submits the landlord’s 2021 application was fabricated and without merit. He further submits the landlord improperly initiated multiple proceedings by pursuing damages against him in Small Claims Court and then seeking to evict him in the applications leading to the 2023 and 2024 hearings. He submits the landlord’s applications were statute-barred since s. 48(5) of the RTA prohibits a landlord from giving notice of termination for the landlord’s own residential use unless the landlord is an individual.
13There was no error in law when the Board declined to order costs after reviewing the submissions on the request for review.
14The Board noted that the only basis for a costs award would be unreasonable conduct by a party, such as an application that is frivolous, vexatious, or brought in bad faith. It concluded that, while the landlord’s application was without merit, the landlord was the owner of the corporation, which was closely held. Also, the landlord was self-represented. The errors Mr. Moosa made were not sufficient to demonstrate unreasonable conduct or to justify a costs award.
15The Board member specifically considered the landlord’s application leading to the August 2023 order. The Board noted that the landlord had not paid the tenant when he first sought to terminate the tenancy. The member called the landlord’s breach a “technical error” that did not amount to unreasonable conduct “and certainly not unreasonable conduct that would warrant an order for costs.”
16The Board did not address the landlord’s 2021 application. Although the tenant viewed the landlord’s applications as falling within the same course of conduct, the 2021 application was less recent and was initiated on a different issue. It did not arise from the landlord seeking the residential unit for his family’s use. In any event, contrary to the tenant’s claim, the Board did not make any finding in the 2022 order that the landlord’s claim was based on fabricated evidence. There was no error in the Board member not addressing this application in its reasons on the review order.
17To the extent the tenant made submissions to the Board about the action in the Small Claims Court, it would not have been within the Board’s jurisdiction to award costs related to conduct in pursuing that case. The failure to address this issue also was not an error.
18The decision to award costs is an exercise of discretion. The Board considered the relevant circumstances and determined that, keeping in mind the limited situations in which costs are awarded at the Board, costs were not appropriate. As I reiterated to the tenant at the hearing, the court’s jurisdiction is limited to reviewing errors of law. There was no error of law and therefore no basis for this court to intervene in the Board’s exercise of discretion.
Disposition
19The appeal is dismissed. The landlord did not seek costs of the appeal and none are awarded.
___________________________ O’Brien J.
Released: January 14, 2025
CITATION: Sweete v. Moosa, 2025 ONSC 261
DIVISIONAL COURT FILE NO.: 262-24
DATE: 202501**
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Paul Sweete Appellant
– and –
Sabir Moosa Respondent
REASONS FOR JUDGMENT
O’Brien J.
Released: January **, 2025