Court File and Parties

CITATION: Aslani v. Baichan, 2019 ONSC 1009

DIVISIONAL COURT FILE NO.: DC 17 688

DATE: 20190221

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Amir Aslani, Plaintiff (Respondent in appeal)

AND:

PATRICIA BAICHAN AND ALEX URQUHART, Defendants (Alex Urquhart- Appellant in Appeal)

BEFORE: Backhouse J., Edwards, J. and Favreau, J.

COUNSEL: Alex Urquhart, self-represented

Lenard Kotylo for the Plaintiff (Respondent in appeal)

HEARD at Toronto: February 13, 2019

ENDORSEMENT

[1] The appellant, Alex Urquhart, appeals the eviction order of the Landlord and Tenant Board (“LTB”) dated September 6, 2016 and the review order dated October 11, 2016 which terminated the tenancy and required Patricia Baichan and Alex Urquhart to move out by September 30, 2016, pay the respondent landlord, Amir Aslani, $4,605.75 in rental arrears, $170 in additional costs, daily compensation and interest.

[2] Mr. Urquhart is seeking to be removed as a party to the orders from the LTB. In addition, he has requested that enforcement of Small Claims Court File number SC-16-11255(garnishing his wages) be dismissed. In the alternative, he requests that the LTB file be reopened and he be permitted to file a defence.

[3] At the outset of the hearing, Mr. Urquhart submitted that he knew nothing about this matter and requested that his uncle be permitted to speak on his behalf. The request was opposed by counsel for Mr. Aslani because of misrepresentations previously made on Mr. Urquhart's behalf by the uncle before Justice Sachs.

[4] In the circumstances we declined the request by Mr. Urquhart. He proceeded to make submission on his own behalf. We found Mr. Urquhart’s submissions to be articulate and in accordance with his position as set out in the material filed on his behalf.

[5] The core issue on this appeal is whether Mr. Urquhart had notice of the hearing before the LTB which took place on August 24, 2016. Mr. Urquhart asserts that he did not receive any correspondence from the LTB and that he was not aware of the proceeding. He also denies that he was in a tenancy relationship with the landlord, arguing that his mother, Ms. Baichan, was the signatory to the lease.

Standard of Review

[6] An appeal from an order of the LTB lies to this Court but only on a question of law, in accordance with section 210(1) of the Residential Tenancies Act, 2006, SO 2006, c.17.

[7] The standard of review on findings of the LTB is reasonableness.

[8] There is no standard of review applicable to a question of procedural fairness.

Background

[9] Mr. Aslani purchased Unit 1005, 1339 York Mills Road, Toronto on November 27, 2014 at which time there was an existing lease between the previous owner and tenants-Ms.Baichan and Rosina Chanderbahn The lease described two additional occupants-Alex Urquhart and Darryl Chanderbahn. By the time the lease expired on November 12, 2015, Ms. Chanderbahn and Darryl Chanderbahn had moved out. It is Mr. Aslani’s evidence which was accepted by the LTB that when the lease expired, there was a verbal agreement that there would be a month to month tenancy with Ms. Baichan and Mr. Urquhart being the tenants. Mr. Aslani’s evidence is that he treated both Ms. Baichan and Mr. Urquhart as tenants pursuant to the verbal tenancy agreement.

[10] It was Mr. Aslani’s evidence that Ms. Baichan and Mr. Urquhart were late with rent payments and he served them both with Notices of Termination of Tenancy for Non-payment of Rent on approximately three different occasions.

[11] On June 14, 2016, Mr. Aslani served a Notice of Termination form on Mr. Urquhart and Ms. Baichan by placing a copy of the document under the door of the rental unit which led to the orders which are the subject of this appeal. The practice of the LTB was to send a notice of hearing to each party named as a tenant. A notice of hearing was issued by the LTB naming Ms. Baichan and Mr. Urquhart as respondents and notifying them of the date of the hearing set for August 24, 2016. The notice of hearing states that it is very important to attend the hearing, the LTB can hold the hearing in the person’s absence and it can make a decision based on what is claimed by the landlord.

[12] There is no dispute that Mr. Urquhart lived at Unit 1005, 1339 York Mills Road at that time. Ms. Baichan attended the hearing on August 24, 2016. Mr. Urquhart did not. The LTB made determinations that both Ms. Baichan and Mr. Urquhart were tenants. Ms. Baichan then requested a review of the LTB’s order. She specifically sought a determination that Mr. Urquhart was not a party to the lease. Mr. Urquhart did not appear.

[13] On October 11, 2016, the LTB confirmed the August 24, 2016 decision. Ms. Baichan and Mr. Urquhart then commenced an appeal from the LTB’s order to the Divisional Court. The parties appeared before Sachs J. to request an extension of time within which to file a notice of appeal. In his factum and at the hearing, Mr. Urquhart represents that he and Ms. Baichan moved from the property on September 30, 2016 and that accordingly, the October 11, 2016 review order sent to the property was never received by them. Mr. Aslani asserts that they did not move out until the end of October, 2016. In the enforcement proceedings in the Small Claims Court before a deputy judge, Ms. Baichan twice swore that the date she and Mr. Urquhart moved out was October 20, 2016, not September 30, 2016 as represented to Justice Sachs.

Analysis

[14] We are satisfied that Mr. Urquhart had actual notice of the August 24, 2016 hearing and chose not to attend. There is no merit to the issues of procedural fairness raised by him.

[15] Mr. Urquhart raises the issue that the LTB made an error in finding that he was a tenant. In support of this he submits that he had been found not to be a tenant by the LTB in a prior decision and in the Small Claims Court (in documents not part of the Record before us).

[16] The issue of whether Mr. Urquhart was a tenant was raised before the LTB which was entitled to make its findings on the evidence before it. These findings are entitled to deference. The decisions are reasonable.

[17] The appeal is dismissed as is the additional relief Mr. Urquhart seeks as set out in paragraph 2 herein.

[18] Mr. Kotylo seeks partial indemnity costs of $4800. We consider the amount of $2500 reasonable, taking proportionality into account. Costs are awarded against Mr. Urquhart in favour of Mr. Aslani in the amount of $2500.

Backhouse J.

Edwards J.

Favreau J.

February , 2019