COURT FILE NO.: CV-16-361-00 DATE: 2023-11-15
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ontario Aboriginal Housing Support Services Corporation Applicant
E. Durst, for the Applicant
- and -
Patricia Ann Aho Respondent
Patricia Aho, self-represented
HEARD: June 9, 2023, at Thunder Bay, Ontario
Regional Senior Justice W.D. Newton
Decision On Application
Overview
[1] This is an application by Ontario Aboriginal Housing Support Services Corporation (“OAH”) for a declaration that Ms. Aho is a trespasser at 239 Earl Road and for leave to issue a Writ of Possession for these premises.
Facts leading to this Dispute [1]
[2] In October 1987, Ms. Aho purchased a home located at Rupert Street (now Ditmars Drive) in Kakabeka falls (the mortgaged property or Rupert Street property). She purchased this property under the Rural and Native Housing program and entered into a mortgage with the Canada Mortgage and Housing Corporation (CMHC).
[3] Since then, the legal entities have changed. In 1999, the provincial and federal governments entered into a social housing agreement which transferred responsibility for the administration of the Rural and Native Housing program to the Ontario Ministry of Municipal Affairs and Housing. In 2006, the Ministry entered into an agreement with OAH to administer the program. In 2009, CMHC transferred all the Rural and Native Housing mortgages to OAH.
[4] In October 2003, after raising health and safety concerns, Ms. Aho moved from the mortgaged property to 239 Earl Road (the rental property or Earl Road property), so that the property manager for the Ministry could investigate and determine the scope of repairs required for the mortgaged property.
[5] Investigations determined that the house was not fit for habitation. [2] Attempts were made by Ms. Aho and lawyers acting on her behalf to negotiate compensation for the Rupert Street property. In 2008, Ms. Aho commenced proceedings against Ontario claiming breach of contract and negligence relating to her purchase of the Rupert Street property. The status of the action will be summarized later in these reasons.
[6] At issue in this application are the terms of the oral agreement under which Ms. Aho occupies the rental property. Further facts are required to put this in context.
[7] OAH states that Ms. Aho was permitted to stay at the rental property on a short-term basis provided that she continued to make the mortgage payments for the Rupert Street property, that she pay the utilities for that property, and that she return to that property as soon as the investigation and repairs were completed.
[8] Ms. Aho maintains that the agreement regarding her occupancy of the rental property also included the term that all expenses associated with the rental property (maintenance, grass, yard work, snowplowing etc.) were to be paid by the Housing Authority.
[9] OAH also states that Ms. Aho posted “no trespassing” signs at the Rupert Street property and refused to allow the property manager access to investigate and complete repairs, thus frustrating attempts to effect repairs at the Rupert Street property.
[10] Ms. Aho admits to posting the “no trespassing” signs but says that she did so in consultation with a contractor and the Ministry of the Environment because of the toxic mold contamination. She further deposed that her set of keys to the mortgaged property were turned over to the property manager shortly after she moved into the rental property.
[11] When Ms. Aho moved into the rental property, the mortgage payments for the mortgaged property were subsidized so that Ms. Aho was only required to pay $95 monthly. In 2004, Ms. Aho was to provide income verification for the subsidy to continue. She did not do so, and the subsidy was withdrawn, and the mortgage payments increased to $716 monthly. Ms. Aho continued to pay $95 per month until December 2005. Thereafter, she did not make any further mortgage payments. She has not paid anything to OAH for her occupation of these premises since then and has continued to occupy these premises for almost 18 years.
[12] A judgment for foreclosure under the mortgage was obtained in April 2015.
[13] Ms. Aho claims that she has not made any payments because the expenses that she has incurred at the rental property exceed what she was required to pay under the mortgage. The email correspondence between Ms. Aho’s then counsel to OAH’s counsel in September 2011 confirm her position that she would resume mortgage payments once OAH assumed expenses related to the rental property.
[14] An application to the Landlord and Tenant Board in 2016 to terminate the tenancy and evict Ms. Aho failed because the Board Member found that the Residential Tenancies Act, 2006, did not apply in the circumstances.
Procedural History to Date
[15] OAH commenced this application over seven years ago, in August 2016.
[16] On September 15, 2016, Pierce J. set a litigation timetable for this application with responding material to be served and filed by October 6, 2016, and with cross examinations to be completed by November 10, 2016. Pierce J. also ordered that service upon Ms. Aho was to be by ordinary mail at the address shown on the application, “as confirmed by respondent.”
[17] On October 13, 2016, Ms. Aho appeared before me in motions court seeking for an order preventing OAH from taking any steps against her. As it appeared that the motion material was “short served” on OAH, I adjourned the motion to November 17, 2016.
[18] On November 17, 2016, Koke J. dismissed Ms. Aho’s motion “to quash”, stating that “[t]here is no relevant evidence in support of the motion.” He set a revised litigation timetable with responding materials to be filed by December 15, 2016, and cross examinations to be completed by March 3, 2017. Again, Justice Koke confirmed that service on Ms. Aho would be by ordinary mail.
[19] On March 23, 2017, Warkentin J. heard OAH’s motion to compel Ms. Aho’s attendance for cross-examination on her affidavit. Justice Warkentin granted the motion “notwithstanding Ms. Aho’s claims she was not served. The motion material set out the applicant’s many attempts to serve the respondent and communicate with her.” The application was adjourned to June 20, 2017, for argument.
[20] I heard the application and released reasons [3] on July 26, 2017.
[21] By endorsement dated October 22, 2018, I directed that the trial of the issue was to determine two questions:
a. What were the terms of the agreement allowing Ms. Aho occupancy of the property? b. Is Ms. Aho in breach of those terms?
[22] I further directed that the parties were to appear before me on November 19, 2018, for a further case management conference to set a hearing for this trial of an issue. In advance of that case conference the parties were to exchange proposed witness lists. On November 19, OAH, took the position that it was premature to set a date since further discovery was required. I directed that OAH would have to bring a motion for further discovery if required. I confirmed Ms. Aho’s address for service by mail.
[23] No action was taken by either party for some time. On June 3, 2021, I presided over a trial management conference. I noted:
The witnesses for the Housing Authority will be Larry Bellerose, John Flavo, Brenda Labelle and Roseann Cormier. Affidavits have been filed for Bellerose, Falvo and Labelle. The House and Authority will file an affidavit from Ms. Cormier by July 31, 2021.
Ms. Aho has not determined who are witnesses will be. By July 15, 2021, Ms. Aho will provide a list of witnesses to Ms. Kettle.
The trial management conference will resume on August 24, 2021, at 10 AM via zoom to discuss the witnesses for trial and set a trial date.
[24] On August 24, 2021, the parties appeared before me. Ms. Aho had not provided a list of witnesses. I ordered that within 60 days she was to deliver her witness list including names, addresses, telephone numbers of the witnesses she intended to call, and that the parties were to arrange a further case conference before me to discuss these witnesses and the procedures for trial. I also stated that, failing compliance with this deadline, OAH may bring whatever motion it determines appropriate.
[25] OAH brought a motion to strike Ms. Aho’s affidavit sworn December 16, 2016, and judgment in the application for failure to provide the names of her witnesses. Alternatively, they sought an order prohibiting Ms. Aho from calling any witnesses on the trial of an issue on the grounds that Ms. Aho did not provide the witness list as ordered and did not respond to any attempts by OAH’s counsel to communicate with her between October 2021 and May 20, 2022.
[26] On the return of that motion on September 1, 2022, Ms. Aho claimed that she was only just served. I adjourned the motion to September 22, 2022.
[27] I heard the motion on September 22, 2022. In my reasons, [4] I noted:
[15] The affidavits filed by Aboriginal Housing confirm that Ms. Aho failed to provide a list of witnesses by October 24, 2021, or at all, and that Ms. Aho failed to communicate with counsel for Aboriginal Housing despite their attempts to contact her by telephone and voice mail to schedule this motion.
[16] In response, Ms. Aho filed two affidavits from her, both sworn September 16, 2022. The affidavits do not provide a list of witnesses, addresses or telephone numbers and, when questioned by the Court, Ms. Aho acknowledged that nothing in the affidavits addressed why she has not provided a witness list as ordered.
[17] Instead, Ms. Aho repeats her assertions with respect to the merits of the application and makes allegations that her rights to privacy, security, and health were violated. She deposes that she endured tampering with her security cameras, computers, emails and files. She objects to the current motion as “just another attempt to discriminate me and to silence me.” She requests that this motion be dismissed based on “misleading statements improper and inadequate service and in some cases, no service.”
[18] When asked why she had not provided a list of her witnesses and contact information, Ms. Aho said that she did not provide the list because Aboriginal Housing would interfere with her witnesses. She then indicated that she would proceed on her own.
[28] I concluded:
[21] There is no evidence at all that Aboriginal Housing interfered or will interfere with any witness Ms. Aho might call.
[22] My orders were clear. The breach is equally clear. The delay caused by the breach is also clear. I am mindful of the allegation that Ms. Aho has been living in the premises for decades without payment and that Aboriginal Housing has been responsible for maintenance.
[23] Ms. Aho is self-represented. I have directed a trial of an issue. Ms. Aho has now announced that she will proceed on her own which I interpret as meaning she will not call any witnesses. I am sympathetic to the position of Aboriginal Housing. However, Ms. Aho will have the opportunity to argue her case at trial. In light of Ms. Aho’s failure to provide a witness list and her stated intention to proceed “on her own”, the trial will proceed subject to the following qualifications:
a. The trial of an issue will proceed before me.
b. No additional material may be filed by either party for the trial of an issue. However, both parties may file a factum limited to 20 pages.
c. Aboriginal Housing will have 90 minutes to present its evidence. Counsel for Aboriginal Housing and their witnesses may participate via Zoom.
d. Ms. Aho will have 90 minutes to present her evidence. Although Ms. Aho may testify on her own behalf, she may not call any other witnesses. Ms. Aho must be present in the courtroom.
e. After hearing evidence, the parties will each have 45 minutes to present their closing submissions.
f. The date for this hearing will be fixed by the trial coordinator. One day is required. If a date is not set within 30 days, the parties are to appear before me on a date to be set by the trial coordinator for a final trial management conference.
Evidence On the Trial of the Issues
[29] The witnesses who testified on this trial were Lawrence Bellerose, Linda Labelle, and Patricia Aho.
Lawrence Bellerose
[30] Mr. Bellerose provided an affidavit, sworn July 14, 2016, when this application was initially brought. At that time, he was the manager of Rural Native Housing for OAH.
[31] In 2006, OAH took over the mortgage subsidy program initially operated by CMHC. Ms. Aho had been a participant in that program and had purchased 46 Rupert Street [5] in Kakabeka Falls in 1987 with CMCH as mortgagee.
[32] In 2003, after having been in possession of 46 Rupert Street for 16 years, Ms. Aho complained of mold and other issues with the property.
[33] Arrangements were made for Ms. Aho to move into another property in the program, 239 Earl Road, while renovations were undertaken at the Rupert Street property. Mr. Bellerose testified that this was to be a temporary arrangement while renovations were completed, and that Ms. Aho was obliged to continue making her regular mortgage payments.
[34] As of November 2002, the blended monthly payment on the mortgage was $618.52 per month, however, Ms. Aho qualified for a mortgage payment subsidy assistance which allowed her to pay only $95 per month, provided that she continue to qualify for the subsidy assistance. In turn, OAH would be responsible for the maintenance and repairs on the Earl Road property while repairs were made at the Rupert Street property.
[35] Those repairs were “on hold” because Ms. Aho had posted a “No Trespassing” sign on the property, ordering the property manager not to attend.
[36] By letter dated August 16, 2004, Ms. Aho was advised that she needed to provide verification of her yearly income from all sources and household composition to continue qualifying for the subsidy. Ms. Aho did not supply the forms and was advised, by letter dated November 18, 2004, that her mortgage payment would increase to $716 per month commencing December 1, 2004.
[37] Despite the requirement to pay $716 monthly, Ms. Aho continued to pay $95 per month until December 2005. Since December 2005, she did not make any mortgages payments at all. On January 11, 2005, a final arrears notice was sent to Ms. Aho advising her that legal action would be taken against her unless she complied with her payment agreement.
[38] OAH obtained a judgment for foreclosure on the Rupert Street property in 2015.
[39] On November 28, 2006, the property manager advised Ms. Aho that the agreement allowing her temporary accommodation at 239 Earl Road was terminated and that she was to vacate the property or enter into a lease agreement to continue occupying the Earl Road property.
[40] Ms. Aho refused to vacate the Earl Road property and refused to enter into a rental agreement despite requests for her to do so which continued to 2011, at which point she was provided with a rent geared to income application package.
[41] As noted, the application to the Landlord and Tenant Board to terminate Ms. Aho’s tenancy was dismissed in 2016 as the Board concluded that the relationship was that of landlord and tenant. The Board noted that:
The Landlord has incurred $43,526.70 in total maintenance costs at Earl Road since PA took possession and I do not find that the minimal Repair costs paid by PA towards a few minor maintenance issues over a 12 year period can be characterized as consideration paid for the right to occupy a rental unit.
[42] Mr. Bellerose confirmed that OAH paid for electricity, heating, maintenance and repairs at Earl Road.
[43] Mr. Bellerose testified that he would like to rent the Earl Road property to another family in need as it is a three-bedroom home, and there is significant need for housing in the area.
Brenda Labelle
[44] Ms. Labelle also swore an affidavit in June 2016, with the initial application.
[45] Ms. Labelle deposed that Ms. Aho moved out of Rupert Street in October 2003 on a temporary basis so that the property manager could investigate and determine the scope of repairs to be made at the Rupert Street property under a residential rehabilitation assistance program. She said that Ms. Aho was permitted to stay at the Earl Road property on the condition that she continue to make payments on the mortgage and the utilities for Rupert Street. She deposed that Ms. Aho refused to allow the property manager access to the Rupert Street property, that she had stopped paying for utilities, and that she eventually stopped making mortgage payments.
[46] In her testimony, it was apparent that Ms. Labelle had little independent recollection of the events from 2003, given the passage of time.
Other Witness: John Falvo and Roseann Cormier
[47] Although counsel for OAH had previously advised that both Mr. Falvo and Ms. Cormier would be called as witnesses, these witnesses were not called at trial. Ms. Aho objected, submitting that it was necessary to cross-examine these witnesses on their affidavits. Failing an opportunity to cross-examine, she submitted that their affidavits should be struck. Counsel for OAH consented to those affidavits being struck.
[48] The affidavits of Mr. Falvo and Ms. Cormier were not considered for the purposes of this trial.
Patricia Aho
[49] Ms. Aho’s affidavit on this application was sworn December 16, 2016. Because Ms. Aho is representing herself and often referred to her other affidavits when making submissions, I have also considered her prior affidavits, sworn on September 16, 2016, on her motion to “quash” the application dismissed by Koke J. on November 17, 2016, and her affidavit sworn September 16, 2022 on OAH’s motion to strike her affidavit for failing to disclose her witnesses. Her complaints made in these other affidavits are substantially the same.
[50] Although she purchased the Rupert Street property in 1987, by 2003 it was determined that the house was uninhabitable. From documents attached to Ms. Aho’s affidavits, it is apparent that she has been attempting to obtain compensation for repair or replacement of that property for years. She has had many different lawyers over the years and has also sought assistance from local MPPs to intervene with Ontario on her behalf.
[51] Attached as exhibit 9 to Ms. Aho’s affidavit of December 16, 2016, is a document which appears to be an excerpt from an Ontario Ministry memo, from sometime in 2006, which states:
- Ministry legal staff is negotiating with the client’s solicitor to offer the client a lump sum of money.
- Ministry staff is attempting to ensure that all of the client’s concerns are addressed, including any harm that is proven to have occurred as a result of the mold.
- For the past 18 months, the client has been housed in one of the rental houses in Thunder Bay. She can continue to stay in this home until a final settlement is reached.
[52] As noted, an action was commenced in 2008 by an Ottawa law firm claiming damages on behalf of Ms. Aho and her children from the province of Ontario. The action claims damages for breach of contract and negligence relating to Ms. Aho’s purchase of the Rupert Street property.
[53] That action has been dormant for some time. In June 2018, I conducted a case conference in that action noting that the action had been dormant since 2013, that each party claimed that undertakings were outstanding from the other, and that Ontario could bring a summary judgment motion, or motion to dismiss for delay.
[54] By endorsement dated November 19, 2018, I noted that Ms. Aho had not been served with Ontario’s cross motions and that it was, therefore, premature to schedule a hearing date. Ontario was to arrange a further case conference once Ms. Aho was served.
[55] The last endorsement on that file was made by me on February 8, 2019. The endorsement reads as follows:
Counsel for Ontario, Ms. Machado, has advised the trial coordinator that Ms. Aho has not responded. A date needs to be set with the outstanding motions. Ms. Machado and Ms. Aho are to appear before me in March.
[56] I gave available dates for March and instructed Ms. Machado and Ms. Aho to contact the trial coordinator to advise which dates were suitable. That endorsement was forwarded to counsel and Ms. Aho by mail on February 8, 2019. There is no indication that either party responded.
[57] That action has not been dismissed.
[58] Ms. Aho testified that the problems with the Rupert Street property led to what was to be the temporary move to Earl Road.
[59] Ms. Aho stated that the agreement with respect to the Earl Road property was that all expenses, maintenance, grass, yardwork, snowplowing etc., were to be covered, and that she was responsible only for paying her Rupert Street mortgage.
[60] Her position is that she stopped paying her mortgage as a deduction against repairs and expenses she had incurred. She stated that these unreimbursed expenses exceeded her $95 monthly mortgage payment. She did not provide any evidence of any significant expense incurred.
[61] She alleges that unknown people have tampered with her security cameras, passwords have been installed on computers, and that her emails have been hacked.
[62] She also provided some proof that verification of income forms have been provided (see example fax cover page from John Rafferty MP, dated September 26, 2011), but not when requested in 2005.
[63] She confirmed that she stopped making mortgage payments in December 2005.
[64] She confirmed that she placed the “No Trespassing” sign on the Rupert Street property in February 2004 and told the property manager that no one was to enter that property.
Position of the Parties
[65] OAH submits that the terms of the agreement were that Ms. Aho would move to the Earl Road property temporarily while the Rupert Street property was being repaired. Ms. Aho’s actions in prohibiting entry frustrated the attempts to investigate and repair the Rupert Street property. While residing at the Earl Road property, Ms. Aho was to continue making the required mortgage payment for the Rupert Street property, and that she breached the agreement by ceasing to make payments in late 2005. Therefore, Ms. Aho is in breach of the agreement and her right to occupy the property has ended. OAH denies that the agreement was to cover all expenses such as snow removal, yardwork, and grass cutting.
[66] OAH argues that Ms. Aho is trespassing as she has failed to make mortgage payments as required by the agreement between the parties. Alternatively, OAH argues that the license to occupy the premises has been revoked.
[67] OAH seeks a permanent injunction restraining Ms. Aho from trespassing on the property and seeks a writ of possession.
[68] In final submissions, counsel for OAH confirmed that OAH would seek to house Ms. Aho if a proper application for housing is made.
[69] Ms. Aho’s submissions are difficult to discern. She relies on extracts from various documents to establish her points and, at times, her submissions are difficult to follow.
[70] Central to her submissions is that OAH was to cover all expenses for Earl Road: maintenance, yardwork, snow removal etc. Although she admits that she put up the “No Trespassing” signs at the Rupert Street property, she says that she returned the keys, and put up the sign up in consultation with the Ministry of Environment.
Analysis
[71] The issues to be determined are:
a. What were the terms of the agreement allowing Ms. Aho occupancy of the property? b. Is Ms. Aho in breach of those terms?
[72] I am satisfied that the oral agreement between OAH and Ms. Aho was that Ms. Aho could occupy the Earl Road property temporarily while the issues with respect to the Rupert Street property were being resolved, provided that Ms. Aho continued to make the mortgage payments for the Rupert Street property. Further, I conclude that OAH was responsible for normal maintenance at the Earl Road property and note that, as found by the Landlord and Tenant Board in 2016, that OAH did pay the maintenance costs for the Earl Road property. [6] I am not satisfied that the agreement was to cover expenses such as snow removal, grass cutting, and yard maintenance. The Rupert Street property was a home on a lot that would have required snow removal, grass cutting, and yard maintenance. I see no rationale to support either a conclusion or an inference that OAH had undertaken responsibility to cover those expenses.
[73] I accept, as admitted by Ms. Aho, that she posted a “No Trespassing” sign at the Rupert Street property and that, to some extent, this action would have impeded access to the property. I am unable to conclude that she did not return the keys. As such, I am not prepared to find that Ms. Aho breached her agreement by frustrating the attempts for repairs at the Rupert Street property. Indeed, the evidence indicates that the Rupert Street property could not be repaired and that the Ministry was seeking to negotiate a settlement with Ms. Aho for the property.
[74] However, I conclude that Ms. Aho breached the agreement for temporary use of the Earl Road property by failing to make the mortgage payments to the Rupert property as required. Making the mortgage payments was a fundamental term that Ms. Aho was required to honour, notwithstanding that a settlement had not been reached to compensate her for the Rupert Street property. I do not accept that she provided the required information to continue with her subsidy in 2005 and that she was therefore in breach of the oral agreement. As stated, since OAH had no obligation to cover other expenses, Ms. Aho was not permitted to offset those expenses against her obligations under the mortgage.
[75] While I am sympathetic to Ms. Aho’s situation and the unresolved dispute with Ontario, her actions demonstrate an attempt to prolong what I have determined to be her unlawful occupation of Earl Road. I find that she has deliberately delayed the completion of these proceedings by claiming, at times, that she has not been served, that she has failed to communicate with counsel as directed, and that she has deliberately disobeyed court orders to provide witness lists. She has also made what I determined to be frivolous allegations against OAH such as interfering with her privacy rights, interfering with her security cameras, computers, passwords, and emails. I find no basis for her assertion that OAH would interfere with her witnesses.
[76] Having found that Ms. Aho has breached the oral agreement for her occupancy of the Earl Road property, failed to enter into a tenancy agreement when requested to do so, and failed to vacate the premises when asked to do so, I find that Ms. Aho is a trespasser on the premises and must vacate and give vacant possession of the property. An order for possession of the property shall issue in favour of OAH.
[77] However, OAH has said that it is still willing to provide subsidized housing for Ms. Aho, should she apply and qualify. Accordingly, OAH may not apply for a writ of possession until 120 days after the release of this decision to allow Ms. Aho time to make an application for subsidized housing to OAH.
[78] If costs are sought, then OAH may make written submissions within 60 days of the release of these reasons, and Ms. Aho will have 30 days thereafter to make reply written submissions. Each party’s cost submissions will be limited to five pages plus costs outline.
“Original signed by”
The Hon. Justice W.D. Newton, R.S.J.
Released: November 15, 2023
[1] These facts are taken from my decision to direct a trial of an issue reported at Ontario Aboriginal Housing Support Services Corp. v. Aho, 2017 ONSC 4529.
[2] A draft Technical Assessment date July 29, 2004, attached as an exhibit to Ms. Aho’s affidavits of October 6, 2016 and December 16, 2016 noted “numerous health and safety problems dating back to original construction.”
[3] Ontario Aboriginal Housing Support Services Corp. v. Aho, 2017 ONSC 4529.
[4] Ontario Aboriginal Housing Support Services Corp. v. Aho, 2022 ONSC 5968.
[5] Now 5 Ditmars Drive.
[6] Over $43,000 up to 2016.