Bernard Property Maintenance v. Taylor

Ontario Reports

Court of Appeal for Ontario

Juriansz, Benotto and D.M. Miller JJ.A.

October 21, 2019

148 O.R. (3d) 494 | 2019 ONCA 830

Case Summary

Civil procedure — Appeal — Jurisdiction — Tenant evicted after failing to appear at eviction hearing before Landlord and Tenant Board — Tenant claiming that failure to grant adjournment did not accommodate his disability — Tenant's request for reconsideration denied — Tenant appealing to Divisional Court — Landlord having appeal dismissed for lack of merit and failure to perfect — Tenant appealing to Court of Appeal — Proper procedure would have been motion to set aside or vary before Divisional Court panel — Court of Appeal granting leave and hearing the matter as if motion had been properly brought — Divisional Court judge acted within jurisdiction and board member properly exercised discretion not to grant adjournment.

Courts — Jurisdiction — Appeals — Court of Appeal — Divisional Court — Tenant evicted after failing to appear at eviction hearing before Landlord and Tenant Board — Tenant claiming that failure to grant adjournment did not accommodate his disability — Tenant's request for reconsideration denied — Tenant appealing to Divisional Court — Landlord having appeal dismissed for lack of merit and failure to perfect — Tenant appealing to Court of Appeal — Proper procedure would have been motion to set aside or vary before Divisional Court panel — Court of Appeal granting leave and hearing the matter as if motion had been properly brought — Divisional Court judge acted within jurisdiction and board member properly exercised discretion not to grant adjournment.

Human rights — Discrimination — Disability — Tenant evicted after failing to appear at eviction hearing before Landlord and Tenant Board — Tenant claiming that failure to grant adjournment did not accommodate his disability — Tenant's request for reconsideration denied — Tenant appealing to Divisional Court — Landlord having appeal dismissed for lack of merit and failure to perfect — Tenant appealing to Court of Appeal — Proper procedure would have been motion to set aside or vary before Divisional Court panel — Court of Appeal granting leave and hearing the matter as if motion had been properly brought — Divisional Court judge acted within jurisdiction and board member properly exercised discretion not to grant adjournment.

Landlord and tenant — Residential tenancies — Eviction — Landlord and Tenant Board — Tenant evicted after failing to appear at eviction hearing before Landlord and Tenant Board — Tenant claiming that failure to grant adjournment did not accommodate his disability — Tenant's request for reconsideration denied — Tenant appealing to Divisional Court — Landlord having appeal dismissed for lack of merit and failure to perfect — Tenant appealing to Court of Appeal — Proper procedure would have been motion to set aside or vary before Divisional Court panel — Court of Appeal granting leave and hearing the matter as if motion had been properly brought — Divisional Court judge acted within jurisdiction and board member properly exercised discretion not to grant adjournment.

Facts

The respondent commenced applications before the Landlord and Tenant Board to end the appellant's tenancy, evict him, and collect unpaid rent. The appellant did not attend the hearing and the applications were granted. The appellant sought a reconsideration on the ground that the sitting board member failed to accommodate his disabilities by not granting an adjournment. When the reconsideration request was denied, the appellant appealed to the Divisional Court. A single judge of the Divisional Court granted the respondent's motion to dismiss the appeal on the grounds of failure to perfect and being devoid of merit. The appellant filed an appeal in the Court of Appeal, arguing that the motion judge lacked jurisdiction and that the board failed to accommodate his disabilities. The Court of Appeal made a preliminary ruling that the proper process would have been a motion to set aside or vary before a panel of the Divisional Court, but decided to hear the matter as if such a review motion had been brought.

Held

The motion should be dismissed.

The appellant was put on notice that the respondent was applying for an order dismissing his appeal as being devoid of merit. That issue was fully argued before the motion judge, who had jurisdiction to quash the appeal as he did.

The Board member had found that the appellant failed to pay his rent. Given that finding of fact, and given that the appellant had neither requested an adjournment in advance nor availed himself of the board's rescheduling procedures, the member's refusal to grant an adjournment was an entirely reasonable exercise of discretion. The motion judge found no evidence of discrimination against the appellant. Accordingly, the motion judge's decision to dismiss the appeal for lack of merit was amply supported by the record and displayed no error of law.

Judgment

The judgment of the court was delivered by

Juriansz J.A.:

A. Appeal Improperly Brought in this Court

[1] This appeal from a single judge of the Divisional Court came before us sitting as a panel of the Court of Appeal. At the outset we asked the parties to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued that appeal lay to this court pursuant to s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA").

[2] I disagree. A line of authority establishes that the proper process to set aside or vary a decision of a single judge of the Divisional Court is a motion pursuant to s. 21(5) of the CJA before a panel of the Divisional Court. Mr. Taylor's appeal was improperly filed in this court.

[3] In Overseas Missionary Fellowship v. 578369 Ontario Ltd., 73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional Court should "take precedence over and exclude the general terms of" the provisions governing appeal to this court, currently at s. 6(1) of the CJA: at p. 75 O.R. More recently, in Alliance to Protect Prince Edward County v. wpd White Pines Inc., 2018 ONCA 576, Lauwers J.A. observed that "the structure of the [CJA] requires a person to exhaust the remedial jurisdiction of the Divisional Court before coming to the Court of Appeal": at para. 13. In Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, this court summarily quashed an appeal of an order of a single judge of the Divisional Court to the Court of Appeal, stating, "The appellant's proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act": at para. 2.

[4] The reconstitution of a panel of this court as a panel of the Divisional Court is an action that is practically abandoned: M. (P.) v. A. (M.), 2017 ONCA 6, at para. 6. However, in the unusual circumstances that this court granted Mr. Taylor leave to appeal, a stay of the order below, and an extension of time, we reconstituted ourselves as a panel of the Divisional Court to hear and determine the matter as if it were a motion brought under s. 21(5) of the CJA with the assent of the Chief Justice of the Superior Court of Justice and the consent of the parties.

B. Merits of the Present Appeal

(1) Procedural History

[5] Mr. Taylor is a tenant in a property that was managed by the responding party, Bernard Property Maintenance ("Bernard Property"). On June 7, 2017 Bernard Property commenced applications before the Landlord and Tenant Board (the "Board") to end Mr. Taylor's tenancy, evict him and collect unpaid rent. On June 12, 2017, the Board gave notice that the applications would be heard on July 17, 2017. Mr. Taylor did not attend on that day, and the Board Member granted the applications and made an eviction order.

[6] Mr. Taylor sought a reconsideration, submitting that the Member failed to accommodate his disabilities by not granting an adjournment. On July 25, 2017, the Board vice chair issued a decision denying his request to review the Member's order. Mr. Taylor then appealed to the Divisional Court on July 27, 2017.

[7] Bernard Property brought two unsuccessful motions to dismiss Mr. Taylor's appeal for delay. The first was rejected as it had not been filed and served properly. The second was dismissed on terms that Mr. Taylor pay rent and take steps to perfect his appeal.

[8] On June 27, 2018, Bernard Property brought a third motion to dismiss Mr. Taylor's appeal for delay in perfecting, because the appeal was frivolous, vexatious, or an abuse of process, and because Mr. Taylor had not complied with the earlier order to pay rent. Price J., sitting as a single judge, granted the motion on July 16, 2018 and made an order that, among other things, dismissed Mr. Taylor's appeal "for delay on the ground of his failure to perfect the appeal, pursuant to Rule 61.13(1) and (3) of the Rules of Civil Procedure" and "on the ground that it is manifestly devoid of merit, frivolous and/or vexatious pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure".

[9] Mr. Taylor then filed appeal proceedings in the Court of Appeal, proceedings that are now being treated as a motion for review under s. 21(5) of the CJA.

(2) Grounds of Appeal

[10] Mr. Taylor raises two main grounds of appeal. First, he argues that the motion judge lacked jurisdiction to dismiss his appeal. Second, he argues that on the merits, the appeal raised the substantial issue of whether the Board failed to accommodate his disabilities, contrary to the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, and other legislation.

[11] For the reasons that follow, I would reject these submissions.

(3) Jurisdiction of the Judge Below

[12] Mr. Taylor argues that the motion judge relied on inapplicable rules to ground his jurisdiction to quash the appeal. He points out that Rule 61.13 of the Civil Procedure Rules, R.R.O. 1990, Reg. 194 bestows jurisdiction to dismiss an appeal for delay on the Registrar of the court, not on a judge, and rule 21.01(3)(d) applies to an "action" before trial. The definition of "action" does not include an appeal: see rule 1.03(1).

[13] Counsel for Bernard Property submits that the motion judge had jurisdiction to quash the appeal under s. 134(3) of the CJA. He said such orders are made regularly by single judges of the Divisional Court. While he did not cite any examples, there are many.

[14] Cases in which appeals from the Landlord and Tenant Board have been quashed include Regan v. Ennis, 2016 ONSC 7143; Shields v. Lancelotte, 2016 ONSC 4433; and Houle v. Hayes, 2010 ONSC 924. Panels of the Divisional Court have upheld decisions of single judges quashing appeals under s. 134(3) of the CJA: see, e.g., Regan v. Latimer, 2016 ONSC 4351, affg 2016 ONSC 4132, leave to appeal to Ont. C.A. dismissed for delay, M46871 (November 16, 2016); Bérubé v. Rational Entertainment Ltd., 2010 ONSC 5545, affg 2009 CarswellOnt 8674, leave to appeal to Ont. C.A. dismissed for delay, M39388 (January 19, 2011).

[15] It should be noted that rule 61.16(2.2), which provides that a motion for an order that finally determines an appeal should be heard by a panel of not fewer than three judges, expressly applies only to the Court of Appeal. Conversely, s. 21(3) of the CJA provides that a motion in the Divisional Court shall be heard by one judge, unless the court provides otherwise.

[16] The motion judge in this case did not specifically state that he was acting under s. 134(3) of the CJA. However, Mr. Taylor was put on notice that the respondent was applying for an order dismissing his appeal because it had no merit. That issue was fully argued before the motion judge. I am satisfied that he had jurisdiction to quash the appeal as devoid of any merit and his order is not rendered a nullity simply because he did not cite s. 134(3).

(4) Merits of the Appeal, under s. 21(5) of the CJA

[17] Mr. Taylor submits that his appeal had merit because it raised the substantial issue of whether the Board had failed to accommodate his disabilities. He telephoned the Board's offices on July 17, 2017, the morning of his hearing, to indicate he could not attend the hearing because of disability. He says he was told that the Board does not grant adjournments to tenants.

[18] This submission requires a review of what transpired before the Board and what the Board decided.

[19] The Board's Notice of Hearing was issued on June 12, 2017 for the hearing date July 17, 2017. The Notice stated: "It is very important for you to attend the hearing. If you are late, or if you do not attend your hearing, it may take place without you." For tenants who could not attend the hearing, the Notice provided the following advice: "you should send someone who has your written permission to represent you. If you or your representative do not attend, the Board may hold the hearing without you and you will not be sent any further notice of the proceedings".

[20] In his reasons dated July 18, 2017, the Member noted that Mr. Taylor did not attend the hearing and the hearing proceeded in his absence. The Member later learned that Mr. Taylor had called the Board's hotline to advise he would not be attending, but the Member indicated he would not have granted an adjournment had he known of the call. The Member observed that Mr. Taylor had prior notice of the hearing, that he did not contact the landlord in advance to request an adjournment, that he did not avail himself of the Board's rescheduling procedures, that he did not send an agent, and that he simply called minutes before the hearing was scheduled to begin to advise he would not attend. The Member noted that Mr. Taylor had requested similar adjournments in the past and concluded that he was "gaming the system" and abusing procedure for the purpose of delay.

[21] The Member ruled in favour of the Landlord and terminated the tenancy, ordering Mr. Taylor to move out by July 31, 2017 and pay $2,869.39, a sum representing his rent owing and Board fees, less his rental deposit.

[22] Mr. Taylor subsequently requested review of the Board's decision, which was denied on July 18, 2017. The vice chair of the Board was not satisfied that there was a serious error in the order or that a serious error occurred in the proceedings. She stated that the Member "clearly and completely gave solid reasons as to why the adjournment was not granted," noting that the Board's records of Mr. Taylor's phone call made no mention of the disability he says required adjournment. The Vice Chair concluded that given the Member's knowledge of Mr. Taylor's past interactions with the Board, the Member exercised his discretion reasonably.

[23] In the Divisional Court, the motion judge began by noting that in order to have merit, an appeal from the Board must be based on a ground of law. At para. 33, he explained the scope of the Divisional Court's powers of review:

The Divisional Court is not a venue where a Tenant is entitled to have the facts of his case re-litigated. In the present case, where the Tribunal has found as a fact that Mr. Taylor repeatedly failed to pay his rent, and that finding of fact was within the scope of his authority and jurisdiction, an appeal based on a dispute that fact has no merit.

[24] The motion judge went on to find that there was no evidence in the material before him to support a finding that the Board discriminated against Mr. Taylor on the ground of disability by failing to adjourn the hearing on July 17, 2017: at para. 37. The Board offered accommodations for those who could not attend hearings, namely a procedure for rescheduling hearings and the ability to send an agent to a hearing on a tenant's behalf: at para. 39. The motion judge noted that Mr. Taylor offered no evidence that he was not able to attend the hearing himself to argue for an adjournment on the ground of disability, reschedule the hearing in compliance with the Board's procedures, or send an agent on his behalf: at para. 40. The motion judge held that in failing to provide such evidence, Mr. Taylor failed to establish a prima facie case of discrimination: at para. 43.

[25] The motion judge found that Mr. Taylor had breached an earlier order of the Divisional Court by failing to pay his rent from August to December 2017, and for June and July 2018. He was $9,975 in arrears of his rent for seven months: at para. 44. The motion judge noted that Mr. Taylor provided no evidence to support his claim that he had complied with the order and paid his rent: at para. 45.

[26] In challenging the decision of the motion judge under s. 21(5) of the CJA, Mr. Taylor has the burden of establishing that the single judge made an error of law or a palpable and overriding error of fact: see Marsden v. Ontario (Minister of Community Safety and Correctional Services), 2012 ONSC 6118.

[27] Mr. Taylor has failed to satisfy that burden. Mr. Taylor does not point out any error of law in the motion judge's reasoning. Moreover, the motion judge's decision dismissing Mr. Taylor's appeal for lack of merit is amply supported by the record. The motion judge could interfere only if the Member's refusal to grant an adjournment was an unreasonable exercise of the Member's discretion. The Member's finding that Mr. Taylor failed to pay rent and was "gaming the system" for delay is a finding of fact. Given that finding of fact, the Member's refusal to grant an adjournment was an entirely reasonable exercise of his discretion. The Vice Chair reasonably concluded Mr. Taylor had failed to show a serious error in the Member's reasoning. As she stated, "[a]bsent a serious error, a review is not an opportunity to 'extend time' and permit the Tenant to occupy a rental unit for a longer period, especially if rent is not being paid".

[28] There is no basis to set aside or vary the order of the motion judge dismissing Mr. Taylor's appeal for lack of merit.

[29] I consider it unnecessary to discuss other matters Mr. Taylor raised in his written argument. The substitution of the landlord as respondent in place of the landlord's agent was inconsequential and it was within the motion judge's discretion to admit fresh evidence.

[30] The motion to set aside or vary the order of the motion judge is dismissed.

[31] The respondent does not seek costs.

Motion dismissed.

End of Document