Court File and Parties
Citation: One Superior Avenue Incorporated v. Sheridan, 2019 ONSC 1235 Divisional Court File No.: 18-374 Date: 2019-02-21 Superior Court of Justice – Ontario Divisional Court
Re: One Superior Avenue Incorporated, Landlord/Respondent -and- Mary Coralee Sheridan, Tenant/Appellant
Before: F.L. Myers J.
Counsel: David S. Strashin, lawyer for the landlord Mary Coralee Sheridan, in person
Heard at Toronto: February 20, 2019
Endorsement
THE MOTION
[1] The landlord moves to quash the tenant’s appeal under s. 134(3) of the Courts of Justice Act, RSO 1990, c C.43.
[2] For the reasons that follow, I find that the appeal is manifestly devoid of merit and must therefore be quashed.
THE BACKGROUND FACTS
The Proceedings before the Board
[3] The landlord applied to the Landlord and Tenant Board to evict the tenant for non-payment of rent. On April 17, 2018, the board heard a day of testimony and argument. The tenant was unable to respond meaningfully to the landlord’s statement of account that showed that she owed arrears of rent of over $10,000 even after the landlord applied credits in the tenant’s favour. In addition, the tenant wanted more time to bring competing claims under s. 82 of the Residential Tenancies Act, 2006, SO 2006, c 17 to try to offset the arrears claimed. The hearing adjourned that day when the tenant called an ambulance and left with the attendants.
[4] The member made an interim order requiring the tenant to provide lists of the allegations that she sought to raise under s. 82 and any evidence that she wished to bring forward to rebut the landlord’s evidence of arrears or otherwise prior by May 3, 2018.
[5] The hearing resumed on May 29, 2018. The tenant sought to adjourn the hearing three times from May 8 to 28, 2018. The member gave reasons for declining the adjournment requests. The tenant then did not appear at the hearing. She also had not served or filed a list of s. 82 issues and other matters as she had been ordered to do. The member considered how to proceed and determined as follows:
The Tenant then made three requests to reschedule this hearing. All three requests were denied. The first request, made on May 8, 2018, was denied because the Tenant had not obtained the Landlord’s consent. The second request, made on May 23, 2018, was denied because the Tenant’s request was for medical reasons but she had not included sufficient information to support her request. The third request, made on May 28, 2018, was denied because the doctor’s letter sent in support of the request was vague as to (a) the reason the Tenant could not participate in the hearing (it stated that she had “recent emotional trauma”), (b) when the Tenant had experience [sic] the trauma discussed in the letter, and (c) when the Tenant would likely be able to participate in a hearing. None of the requests to reschedule mentioned any scheduling conflict with the hearing date
On the date of the hearing, the Board received several emails from the Tenant indicating that she was not feeling well and that she would be going to the hospital. The Tenant mentioned vertigo and dizziness in her emails.
I interpreted the Tenant’s emails to the Board as an adjournment request. At the hearing the Landlord’s representative opposed the request.
At no time has the Tenant given any specific information about what barriers she faces that prevent her from participating in a hearing. Considering all of the circumstances, I cannot conclude, on a balance of probabilities, that the Tenant required an adjournment on May 29, 2018. When the Tenant stated, on April 17, 2018, that she wished to call an ambulance, she was not in any apparent physical distress and did not describe any specific issue that caused her to require medical attention. She went into the ambulance unassisted. On April 23, 2018 the Tenant told the schedule officer that she needed to reschedule because she had a conflict, but she did not mention any scheduling conflict in any of her requests to reschedule. It appears from the Tenant’s interactions with the schedule officer that the Tenant’s need for a different date had something to do with wanting more time to prepare for the adjourned hearing, but in her requests to reschedule she did not mention this. The Tenant’s medical letter in support of one of her requests to reschedule was very vague; it referred to a “recent emotional trauma” and concluded that the Tenant would be better off if the hearing is rescheduled. Given the above, at the hearing I denied the Tenant’s request for an adjournment.
[6] The member was satisfied by the landlord’s statement of account and noted that the tenant had offered no particulars to rebut its content either at the hearing on April 17, 2018 or under the interim disclosure order. The member also noted that the tenant had failed to comply with her order that she provide a list of issues that she wished to raise under s. 82. Therefore the member ruled that there were no s. 82 issues before her although she left it open for the tenant to bring her own application for compensation at a later date.
[7] The member ordered the tenant’s lease terminated and fixed her rent arrears at $10,285.55 plus interest. She also ordered that the tenant can void the termination order by paying the arrears and moving under s. 74(11) of the statute prior to being evicted.
[8] A Vice-Chair of the board conducted a review of the member’s decision at the tenant’s request on June 15, 2018. The tenant claimed that she was unable to attend the hearing on May 29, 2018 because she was seen in the emergency department that day. She presented no proof of that assertion before the board. She has not brought a motion to admit fresh evidence in the appeal. However, in her motion record for this motion she included hospital records for her April 17, 2018 attendance and an email with a nurse confirming that they spoke on May 29, 2018. Even now, there is no evidence that the plaintiff was at the hospital or that she ssuffered an objectively verifiable emergency on May 29, 2018. Moreover, the existence of an objectively verifiable emergency is inconsistent with the fact that the tenant had tried three times unsuccessfully to adjourn the hearing in advance of the hearing date.
[9] The Vice-Chair upheld the decision of the member and found as follows:
The Board takes seriously the right to participate as expressed in King-Winton v. Doverhold Investments, 2008 60708 para. 3 (ON SCDC), where the Divisional Court stated: “Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.” However, a party who fails to attend the hearing should not be in a better position than the party who attends, and a party should not benefit from their conduct in failing to attend the hearing by delaying the proceedings.
In addition, an interim order TSL-91342-17-IN was issued on April 19, 2018. The interim order directed that the Tenant was to provide a) a list of any issues that the Tenant wishes to raise at the hearing pursuant to section 82 of the Act including particulars of her allegations of the remedy sought; b) a list of any issues the Tenant wishes to raise at the hearing with respect to the alleged arrears; and c) a copy of any additional evidence that the Tenant intends to rely on at the hearing. These items were to be provided to the Landlord no later than May 3, 2018. The Landlord reported at the hearing on May 29, 2018 that no submissions had been received from the Tenant on May 3, 2018 or at all.
Having considered the Tenant’s pattern of conduct aimed at delaying the proceeding, her abuse of the Board’s process by failing to abide by the interim order, and the vague and insufficient medical evidence provided by the Tenant to support an adjournment on the grounds of medical need, the Member determined that an adjournment of the May 29, 2018 hearing was not appropriate. I see no error in the Member’s decision to proceed with the hearing in the circumstances. I accordingly exercise my discretion to deny the request for review without a hearing, pursuant to Rule 29.11 of the Board’s Rules of Practice.
[10] While the tenant may have subjectively suffered symptoms on May 29, 2018, she submitted no evidence to support her multiple requests for delay or her failure to attend at the hearing. Her requests for accommodation, without any supporting material, cannot permanently exempt her from the substantive law requiring her to pay her rent when due, from procedural obligations to treat the other party fairly, nor from the requirement to observe the board’s orders.
The Proceedings before this Court
[11] The tenant appealed the orders of the board to this court by a notice of appeal dated June 19, 2018. The sole ground of appeal is that the member denied the tenant procedural fairness by proceeding in her absence on May 29, 2018. The landlord moved to quash the appeal. The motion was heard by Swinton J. on October 26, 2018. Justice Swinton adjourned the motion to December 13, 2018 on condition that the tenant recommence paying monthly rent when due pending the appeal. She did not require the tenant to make any payments towards her arrears.
[12] On December 13, 2018, the landlord’s counsel sought to adjourn the motion on the basis that the tenant had been paying rent when due. Moreover, the transcripts of the hearing before the board had arrived so that the tenant was then required to turn to perfecting the appeal. Justice Perell agreed to the adjournment and extended the time for the tenant to perfect the appeal until January 31, 2019. It was a term of Justice Perell’s order that if the tenant defaulted in any of the terms set by Swinton J. or by him, the landlord could bring on the adjourned motion to quash on four days’ notice.
[13] In early February, having failed to perfect the appeal by the date required, the tenant scheduled a motion date for March 7, 2019 for a motion to extend the time for her to perfect the appeal. She has not delivered any materials for that proposed motion. In the meantime, the landlord brought on its motion to quash on four days’ notice as provided by Justice Perell’s order.
THE HEARING OF THE MOTION TO QUASH
[14] The matter was held down to allow the tenant to speak to duty counsel who was in the building before another court. Duty counsel attended before me and indicated that he had to appear in the other court for the morning but that he was available at 2:00 pm to help the tenant at the hearing. Ms. Sheridan said that she had an appointment in the afternoon and she could not wait. Accordingly, after providing further time for Ms. Sheridan to consult, the hearing proceeded.
[15] During the hearing, Ms. Sheridan advised that the affidavit that she filed for this hearing contained the evidence on which she would have relied for her motion to extend the time to perfect the appeal that she intended to bring on March 7, 2018. She agreed that it made sense to avoid an extra attendance and to avoid the need for her to prepare another motion record. Both parties therefore agreed that I would deal with the tenant’s request for an extension of time as part of this decision.
The Landlord’s Position
[16] Mr. Strashin argues that only issues of law can be appealed to this court under s. 210 of the Residential Tenancies Act, 2006. Issues of fact and mixed fact and law are not appealable. It is the intention of the Legislature that all factual issues be dealt with solely by the board. This court may intervene only when there is an error of law or principle, or where there is no evidence to support a finding of fact. Moreover in denying an adjournment, the member was exercising discretion. The court may only intervene in a discretionary decision where the tribunal applies the wrong principle or is clearly wrong. Mr. Strashin submits that the tenant’s appeal raises only issues of fact or mixed fact and law and, as such, cannot succeed before this court.
The Tenant’s Position
[17] The tenant set out her concerns during the hearing at some length. She has not been able to complete her factum and book of authorities within the time required by Perell J. She is having difficulty with legal research and understanding what a factum should contain. Given her medical concerns and the number of appointments with professionals that she expects to have over the next several months, the tenant was not able to estimate a date by which she might have the appeal perfected.
[18] The tenant did not ask me to waive the rules requiring her to deliver a factum and a book of authorities. While that might be a possible accommodation if the tenant had evidence of medical need, the prejudice of doing so is self-evident. I will articulate, as best as I can, the arguments that the tenant says she intends to raise. Moreover, I am in as good a position today as the judges who might hear an appeal some months hence if there is no factum or a factum with no real legal substance.
[19] The tenant’s first argument is that the member’s characterization of her requests for accommodations as delays was untrue and cast her in an inappropriate light. The finding that the tenant has delayed is a finding of fact based on the evidence before the board. It is not an issue of law that can be appealed to this court. Neither is there a principle of law that a party is entitled to set her own rules upon stating a desire for accommodation as the tenant has done. The tenant was required to provide evidence to support the procedural requests that she made and to abide the outcome of the board’s process and orders.
[20] The tenant’s second argument is that she was denied the right to present her evidence and to speak to the evidence submitted by the landlord. There is no doubt that the doctrine of procedural fairness requires that parties be provided with an opportunity to present their respective cases. However, the doctrine is not absolute. The member had the discretion to decide whether to adjourn the hearing in the interests of justice. The tenant is not able to point out any error in principle committed by the member or by the Vice-Chair in exercising the discretion to consider her adjournment requests. She just asserts that the board should have adjourned on May 29, 2018 when she did not attend. While I cannot be the tenant’s lawyer, it is fair to observe that looking at the member’s reasons and the Vice-Chair’s reasons objectively, ignoring that the tenant cannot articulate any errors of law, I too do not see any error in principle that might amount to an arguable case of an error of law to justify sending this proceeding to a panel. The member exercised her discretion in the interests of justice on the facts that she found based on the evidence before her. That is the exact thing that the Legislature wants the board to do and excludes this court from considering. There simply is no arguable issue of law raised on procedural fairness grounds.
[21] The tenant’s third argument is that the member erred in law in failing to consider her arguments for an abatement of rent or other monetary relief (exceeding the $25,000 limit) under s. 82 of the statute. The tenant says she wanted to raise issues concerning mental anguish, anti-Semitism, threats, intimidation, alienation of her neighbours, uninhabitable conditions due to a lack of repair and maintenance, and an allegation that a superintendent sprayed her in the face with a cleaning liquid.
[22] The tenant was not able to raise these issues because (a) she did not comply with the interim order requiring her to provide notice of her issues and evidence to the landlord and the board; and (b) she failed to attend the hearing. Nevertheless, the tribunal made it clear that Ms. Sheridan maintains her right to bring her own proceedings for monetary relief if she chooses to do so. This issue is another attack on the adjournment and a collateral attack on the interim order for disclosure. It does not raise an arguable issue of law for appeal.
[23] Finally, the tenant referred twice to a possible argument that the tribunal’s order was “moot”. I do not understand any basis for saying this. Moreover, if the order is moot then there is no appeal available to the tenant.
[24] The tenant also has no viable case for an extension of time. There is no evidence that she has taken any steps to perfect the appeal in the eight weeks since Justice Perell’s order or in the eight months since commencing the appeal. Her indication that she cannot put a time estimate on when she might be able to perfect the appeal was heartfelt. The process is complex and she has her own difficulties that prevent her from getting through it. She has met with Pro Bono Law Ontario but she did not give any indication that they are able to help her with perfecting the appeal. In any event, as there is no merit in the grounds for appeal raised in the notice of appeal, the motion to quash effectively determines the request for an extension.
SUMMARY
[25] Decisions of the Landlord and Tenant Board are entitled to deference when it assesses its home statute. On a statutory appeal questions of law are reviewed by this court on a reasonableness basis Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47. The deferential standard makes it that much more difficult for an appellant in an appeal that is limited to questions of law. The appeal will fail unless an appellant can show that the tribunal’s decision on a question of legal principle is so unreasonable as to have been outside of the range of decisions that were reasonably open to it to make in the exercise of its expertise. The high standard makes it somewhat easier therefore to conclude that a proposed appeal is manifestly devoid of merit. Where, as here, the appellant does not raise any issues of law and the court does not see one looking through an objective lens trying to be helpful, the decision is straightforward.
[26] The tenant Ms. Sheridan is not in good health. She fears for her future with good reason. She has received significant accommodations at the Landlord and Tenant Board and in this court. But her appeal is wholly without merit and further accommodation will not make up for that. Moreover, it is unfair to the landlord to make it responsible to bear the burden of the tenant’s health problems. Nor can the court provide her with the help that she needs.
[27] Ms. Sheridan required accommodation before the board and in court to assist her to present her case. She has never provided either the board or the court with any evidence concerning the details of her need for accommodation beyond vague one-line letters with no real content. Yet she requires that she be provided with a private room, with a phone, and an attendant where she can rest during frequent breaks. It is very difficult to schedule hearings with Ms. Sheridan as she asserts that she has numerous unparticularized medical appointments and the dates of the appointments seem to be somewhat fluid. It can be difficult for Ms. Sheridan to remain composed during a hearing. She also calls an ambulance to take her to the hospital when she feels distressed as she did both before the board and before the court last year.
[28] I do not say any of this as a criticism. Rather, I recognize that Ms. Sheridan has a very difficult hill to climb to present an appeal before this court. But, making every allowance for her circumstances, I still cannot see merit in her proposed appeal and I have no confidence that she is capable of perfecting or arguing the appeal in any event.
[29] Ms. Sheridan presents a very sympathetic case. I genuinely believe that she has a well-founded fear of what will happen to her if she is evicted. But, as I noted above, the landlord is not responsible to take care of the tenant given the board’s finding of fact that she owes substantial arrears of rent. Similarly, while the court process provides an automatic stay of the board’s decision during the appeal process, the stay is temporary and depends on the appellant raising issues that are capable of being appealed successfully under the statute and doing so on a more or less timely basis. In this case, the appellant tenant has done neither of these things.
[30] This appeal is manifestly devoid of merit and is therefore quashed.
[31] This is the third trip to court for these parties. Justice Swinton did not reserve the costs of the appearance before her. Justice Perell did however. Mr. Strashin seeks costs of $2,500 all-inclusive on a partial indemnity basis. This strikes me as a very reasonable amount in the circumstances.
[32] Order to go:
a. quashing the appeal;
b. vacating the automatic stay of the decision of the board;
c. requiring the tenant to pay the landlord its costs fixed at $2,500 all-inclusive within 30 days;
d. cancelling the appointment for a motion before this court to extend time that is currently booked for March 7, 2019; and
e. waiving any requirement for the tenant’s approval of the form and content of the formal order.
F.L. Myers J.
Date: February 21, 2019