Court File and Parties

COURT FILE NO.: 18/08

DATE: 20090626

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: NOVINA HARRIS, ZEINAB MAHAMUD and GILLIAN WHYTE v. Toronto Community Housing Corporation

BEFORE: Swinton, Low and Bryant JJ.

COUNSEL: M. Buonaguro, for the Appellants

M. Boushel, for the Respondent

HEARD AT

TORONTO: June 10, 2009

E N D O R S E M E N T

Bryant J.

The Appeal

[1] The Toronto Community Housing Corporation (“TCHC”) brought applications to terminate the tenancies of and to evict Novina Harris, Zeinab Mohammud and Gillian Whyte (collectively, the “Tenants”) pursuant to the now repealed Tenant Protection Act, 1997, S.O. 1997, c.24 (the “TPA”). In each case, the tenancy was terminated for cause pursuant to s. 65(1) of the TPA, as acts of an occupant or person permitted in the residential unit were found to seriously impair or to have seriously impaired the safety of other persons.

[2] The transition provisions contained in s. 242 of the Residential Tenancies Act 2006, (S.O. 2006, c. 17) (“RTA”) provide that the TPA continues in force for proceedings commenced under the now repealed TPA through to its final disposition except for the application of s. 84 of the TPA. Section 83 of the RTA, and not s. 84 of the TPA, applies where no final order had been issued before the TPA was repealed. Section 83 of the RTA applies to the subject appeal since no final order had been issued before the repeal of the TPA.

[3] Alan Mervin, Member, of the Ontario Rental Housing Tribunal (the “Board”), conducted a combined hearing on consent of all parties because the three evictions raised common issues. The Board received evidence which was common to all the parties and each party had the right of cross-examination. Upon the completion of the first stage of the hearing, the parties called case-specific evidence with each party having the right to cross-examine on the case-specific evidence. In three separate decisions, dated December 6, 2007, the Board found that the acts and omissions of the tenants' family members or their friends living in or visiting at the rental units had seriously impaired the safety of others in contravention of s. 65(1) of the TPA. That provision states:

A landlord may give a tenant notice of termination of the tenancy if,

(a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and

(b) the act or omission occurs in the residential complex.

[4] The Tenants appealed the Board’s decision to the Divisional Court. An appeal of a decision of the Board is limited to a question of law alone (s.196(1) TPA).

The Board’s Factual Findings

[5] On May 18, 2006, several combined police forces from Southern Ontario executed search warrants for the residences of the Tenants and many others after 6 to 8 months of investigation work. The investigation included more than 120,000 intercepted telephone calls, background investigations, surveillance evidence, photographs and other investigative means. Based on the information gathered through this extensive investigation, the police identified individuals and residences that were the subject of search warrants.

[6] In Ms. Mohamud’s household, the police officers found 11 grams of crack cocaine, two loaded 357 magnum guns, a loaded pistol-grip shotgun, with the serial number removed, and a MAC-11 semi-automatic weapon, which was later found to have been used in four other crimes. Ms. Mohamud’s son, a guest of her son, and another occupant were arrested and charged in relation to these seizures.

[7] In the Harris household, the police officers found drugs, guns and ammunition, which included a fully loaded handgun, newspaper articles relating to the Jamestown Cripps Gang, two scales, 5 cell phones, and a large amount of cash. Ms. Harris’ son was arrested and charged in relation to these seizures.

[8] In the Whyte household, the police officers found bullets and shotgun shells, a number of drug scales, dime bags of marijuana, 5 bullets concealed in a bandana of a type worn by members of the Cripps gang, $2000 in cash, a debt list, 12 Ecstasy pills, a loaded 9 mm handgun, and a box for the handgun together with a user’s manual. Ms. Whyte’s son, who was listed as an occupant, and a guest were arrested and charged in relation to these seizures.

[9] The persons arrested at the residences were either members of the Tenant’s family or friends of family members. These persons were arrested and charged as a result of the investigation and seizures. They were present in the residences with the knowledge and permission of the Tenants. None of the Tenants was arrested or charged by the police.

[10] The Board made factual findings as to the location of the seized items in the residences and the knowledge of the occupants as to the presence of seized items in the respective residences of the Tenants:

(a) guns were hidden in the bedrooms of the family members of the Tenants or in the belongings of family members or their guests;

(b) no guns were found in the common areas of the residences;

(c) none of the Tenants were aware that guns were hidden in their residences;

(d) the Tenants did not know and were not wilfully blind to the fact that guns were present in their respective residences; and,

(e) the Tenants had been victimized without their knowledge and placed in a vulnerable position by others close to them.

[11] The Board also found that drug trafficking and shootings were rampant in the residential complex, that there was a sense of fear in the community about moving into the area and that these fears were justified. The Board concluded that the other tenants feared “for their safety, and these [were] very real and well grounded fears.”

Grounds of Appeal

[12] The Tenants appealed the Board decision upholding the evictions on the following grounds (Appellant’s Factum, paragraph 7):

(1) The Board erred in law in its interpretation and application of s. 65(1) of the TPA, by imposing a standard of absolute liability, whereas the correct interpretation of s. 65(1) imposes a strict liability standard which permits a defence of due diligence. The Tenants submit that on the proper strict liability standard, the factual findings of the Board require a finding that s. 65(1) of the TPA did not apply to the Tenants.

(2) The Board erred in law in its determination that the mere existence of a gun in a household is sufficient evidence to ground a finding of serious impairment of safety under s. 65(1) of the Act. The Tenants submit that the onus on the Landlord to establish the existence of a serious impairment of safety was not met.

(3) The Board erred in law in its consideration of the circumstances of the Tenants when determining whether s. 83 of the RTA should be applied to refuse the application for eviction in these cases.

[13] Counsel for the appellants and respondents agree that the standard of review on a pure question of law is correctness.

Issue 1: Interpretation and application of s. 65(1) of TPA

[14] The Board stated in its reasons that s. 65(1) appeared to create a standard of "strict liability". Counsel for the appellants submitted that s. 65(1) is a “strict liability” statutory provision imposing liability for the conduct of other persons. Counsel argued that although the Board correctly identified the standard, it erroneously applied an “absolute liability” standard holding the Tenants responsible for the acts of others without first examining whether the Tenants acted with reasonable diligence in the above circumstances. Counsel relied upon the Supreme Court of Canada’s decision in R. v. Sault Ste Marie, [1978] 2 S.C.R. 1299, at page 1326 as the applicable standard for the interpretation and application of s.65(1) of the TPA.

[15] The Supreme Court’s classification of criminal and regulatory offences in Sault Ste. Marie as either a mens rea, strict liability or absolute liability offence has no application in the interpretation and application of a remedial statutory provision governing residential tenancies.

[16] Counsel for the respondent Landlord submitted that the Board used the term “strict liability” consistent with its use in the civil law context of vicarious liability or strict liability, such as the Rylands v. Fletcher doctrine.

[17] These principles of tort law have no application in the interpretation and application of s. 65(1) of the TPA which is a remedial statutory provision governing residential tenancies. Section 65(1) should be interpreted in accordance with its grammatical and ordinary sense, harmoniously with the scheme and object of the TPA and in light of the remedial purpose of the legislation (Rizzo v Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at paragraphs 21-22). The section permits the landlord to give the tenant a notice of termination if an act or omission by the tenant or an occupant of a rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person and that such act or omission occurs in the residential complex.

[18] The section does not incorporate a fault element as do regulatory offences which allow a due diligence defence. The alleged act or omission of the tenant, occupant or the person permitted in the residential complex underpinning the notice need not be morally blameworthy as the section could apply to a tenant suffering from dementia whose omission seriously impaired the safety of other tenants in the residential complex or could seriously impair the safety of other persons in the future.

[19] In contrast to s. 65(1), other provisions of the TPA specifically include a fault element. Under s. 62,the landlord may give notice of termination for an illegal act in the rental unit or residential complex, but only where the tenant commits the illegal act or permits another person to do so.

[20] Pursuant to s. 63(1), the landlord may give notice of termination if the tenant or a person whom the tenant permits in the residential complex willfully or negligently causes undue damage to the rental unit or the residential complex.

[21] Moreover, s. 65(2) provides only a ten day notice period and the tenant is given no opportunity to correct the situation. The wording of s. 65 suggests that the Legislature intended to create stricter provisions for acts that have a serious impact on the safety of others in the residential complex.

[22] While this reading of s. 65(1) may seem harsh to the tenant in some circumstances, s. 65(1) must be also read in conjunction with s. 83 of the TPA, which grants the Board the authority to refuse to grant an application for an eviction “unless satisfied, having regard to all the circumstances, that it would be unfair to refuse” or may “order that the enforcement of the eviction be postponed for a period of time” as was done by the Board in this case.

[23] In my view, s. 65(1) does not incorporate a due diligence component or incorporate the principles of strict liability of the law of torts for the above reasons.

Issue 2: Hearsay Evidence and The Sufficiency of Evidence of Serious Impairment of Safety

[24] Counsel for the Tenants alleged that the Board relied exclusively upon hearsay on this issue and submitted that the evidence to prove that the acts or omissions of the family members and others was insufficient for the Board’s finding that they seriously impaired the safety of any person.

[25] The evidence of Detective Dominey consisted of his knowledge of the investigation, the items seized as shown in the photographs, information received from other searchers as to the precise location within the residences where the guns, ammunition and drugs were found. The detective also gave opinion evidence as to the knowledge or awareness of the Tenants concerning the activities of family members and others living in or visiting at their residence.

[26] The Statutory Powers Procedure Act (SSPA), R.S.O. 1990, c. S.22 applies to eviction proceedings before the Board (s. 184 TPA). The Board may admit hearsay evidence pursuant to s. 15 of the SSPA (Singh v. Merkur Properties [2004] O.J. No. 1133 (Div. Ct.)). The Board was alive to the hearsay nature of the evidence and distinguished between reliable hearsay and unreliable hearsay. The Board did not rely upon the hearsay evidence of the detective concerning the precise location of the guns found by other officers and did not accept the opinion of the officer concerning the Tenants’ state of mind. To the contrary the Board rejected this type of hearsay evidence.

[27] The Board accepted the evidence of Detective Dominey and Barry Thomas, the property manager, that the neighbourhood was extremely dangerous, there had been many shootings, that other tenants and even staff members were afraid to come forward and give evidence at the hearing for fear of reprisals and persons were afraid to move into the complex but since the arrests the area was quieter and the number of incidents had decreased.

[28] The Board considered the type of weapons and the context in which the weapons were found. The Board inferred that the guns appeared to be unlicensed and that there was an absence of evidence that the occupants were licensed to possess the guns. The Board further found that the manner in which the guns and ammunition were stored presented a serious ongoing threat to safety to the owners and persons in the vicinity of the guns.

[29] The Board inferred from the evidence of Detective Dominey and Barry Thomas that illegal guns and drugs go hand and hand with drug trafficking and shootings, which were already rampant in the area. The Board concluded that the action of the family members and other persons in the three units impaired the safety of others in the residential complex. The Board’s finding of fact was supportable on the evidence.

[30] Section 210 of the RTA limits appeals to questions of law. The distinction between questions of law, fact, and mixed fact and law was articulated by Justice Iacobucci in Canada (Director of Investigations and Research, Competition Act) v. Southam Inc., [1996] S.C.J. No. 116 at para. 35):

…Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact

[31] The question whether the acts or omissions of the family members and others “seriously impairs or has seriously impaired the safety of any person is a question of mixed fact and law. The Divisional Court’s jurisdiction is limited to questions of law. Accordingly, I reject this ground of appeal.

Issue 3: The Application of s. 83: Fairness

[32] Counsel for the Tenants submitted that the Board erred in law when it did not exercise its power to refuse the eviction and/or make a conditional order prohibiting the family members and other identifiable persons who were responsible for the guns and other illegal conduct from attending at the residences of the Tenants.

[33] Section 83 of the TPA states in part as follows:

83(1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time.

83(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).

[34] The Board held that the test under s. 83 test was fairness and not hardship. The Board refused to grant the proposed conditional order because it was not practical or enforceable and because the Tenant would not have the ability or awareness of circumstances to control the activities of the family members and others to ensure that the activities would not continue in the future.

[35] Section 77(1) of the TPA states:

A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if,

(a) The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant;

(b) an order … with respect to the previous application imposed conditions on the tenant;

(c) among the conditions imposed by the order…were conditions that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application;

(d) the order… provided that the landlord could apply under this section if the tenant did not meet the conditions described in clause (c); and

(e) the tenant has not met the conditions described in clause (c).

[36] Thus, in order for the Landlord to evict a Tenant under s. 77(1) for breaching a condition of an order, it must prove that the identified family members and others continued with the prohibited activity of possessing guns and ammunition in the residential complex. The Landlord does not have the resources or the authority to gather evidence of a breach of such a condition. The Board’s conclusion therefore that the conditional order sought by the Tenants was not practical or enforceable was reasonable based on the evidence before it.

[37] The Board has jurisdiction to determine whether or not to refuse the eviction on grounds of fairness. The Board concluded that it would be unfair to the Landlord to refuse the eviction order. In coming to that conclusion, the Board took into account the Tenants' lack of knowledge of the presence of guns, ammunition and other illegal substances stored in the units. The Board was entitled to conclude, even in the presence of that fact, that in the totality of the circumstances, a refusal to evict was unfair to the Landlord. The Board then also considered the possible hardship for the Tenants to find alternative accommodation and fashioned its order, delaying enforcement. There is no suggestion in the record that the Board failed to exercise its jurisdiction or exceeded its jurisdiction. There is no suggestion the Board failed to consider relevant evidence. The Board’s exercise of its statutory authority under s. 83 was reasonable in the circumstances and, in my view, there was no error of law.

[38] For the foregoing reasons, the appeals are dismissed. The stay of the Board’s orders is lifted. As agreed between the parties, there will be no costs.

Bryant J.

Swinton J.

Low J.

DATE: June 26, 2009