Two-Two-Ought-Four Dufferin Limited v. Mitchell, 2019 ONSC 276
CITATION: Two-Two-Ought-Four Dufferin Limited v. Mitchell, 2019 ONSC 276
DIVISIONAL COURT FILE NO.: 602/2018
Landlord and Tenant Board File: NOTSL-91880-18
DATE: 20190110
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Two-Two-Ought-Four Dufferin Limited Landlord/ Respondent
– and –
Meryl Mitchell Tenant/Appellant
COUNSEL: David Strashin, for the Landlord/Respondent Erica Richler of Pro Bono Ontario appeared as Amicus for the Tenant
HEARD at Toronto: January 10, 2019
Backhouse, J.
[1] The Landlord/Respondent seeks an order:
(a) quashing the tenant’s appeal and vacating the stay of the Order of Landlord and Tenant Board issued July 10, 2018 in File NOTSL-91880-18 and confirmed by Review Order TSL-91880-18-RV issued August 17, 2018.
(b) In the alternative, requiring the tenant to forthwith perfect the appeal.
(c) In the further alternative, expediting the hearing of the tenant’s appeal.
(d) Dismissing the appeal as an abuse of process, pursuant to S.140(5) of the Courts of Justice Act.
(e) Dismissing the appeal on the basis that the Order appealed was made on consent and no leave, pursuant to Section 133 of the Courts of Justice Act, was obtained.
Background
[2] The tenant occupied the rental premises at 2204 Dufferin Street Apartment 407, Toronto for 17 years. The landlord sought to terminate the tenancy on the basis of substantial interference with reasonable enjoyment and overcrowding.
[3] The tenant attended at the return of the application on July 10, 2018. She was represented by counsel. The Member was advised at the outset that the tenant would not oppose the application for termination but was concerned that the eviction be delayed to September 30, 2018. The landlord did not oppose that request and offered to waive the rent for August and the filing fee for the application. The parties entered into an unopposed order terminating the tenancy effective September 30, 2018 with August 2018 rent and the Board filing fee waived and with the tenant’s last month’s rent deposit to be applied to the rent due for September, 2018.
[4] On August 1, 2018, the tenant requested a review of the Order issued July 10, 2018 on the basis that she was not reasonably able to participate in the hearing because she was poorly represented by her legal representative. The tenant claimed that she was not able to participate in the hearing or be involved in the decision making. The tenant’s request to review was denied by Review Order issued August 17, 2018 without a hearing by the Vice Chair who determined that she was not satisfied that there was either a serious error in the order or that a serious error occurred in the proceedings. The Vice Chair determined that the tenant had been represented by a lawyer from a community legal clinic and that no issue had been raised with respect to the tenant’s representative in the proceedings. The Vice Chair ruled that the order agreed upon by the parties was in essence a consent in that it was an agreement that the tenancy would come to an end. The Vice Chair stated:
“Having authorized the legal representative in question and entered into an agreement for termination in which she received compensation, the tenant must accept the consequences of her decision. I find no serious error in procedure.”
[5] On September 16, 2018, the tenant filed a notice of appeal and thereby obtained a stay with respect to the enforcement of the eviction order of the LTB. In her grounds for appeal she stated:
(a) that in the Notice to End Your Tenancy for Interfering with Others, Damage, or Overcrowding(“Form N5”) that she was served with on November 27, 2018, she was instructed to reduce the number of people living at the rental premises within seven days to void the eviction notice The tenant lives with her two minor children and therefore could not reduce the number of occupants to one person.
(b) On July 6, 2018, the tenant was prepared to contest the landlord’s allegations of substantial interference with reasonable enjoyment and overcrowding. However, her lawyer entered into an agreement with the landlord to resolve the eviction application without a hearing on the merits.
(c) The tenant did not understand what was being agreed to on her behalf. It was not until she received the Order in the mail that she understood her tenancy was terminated as of September 30, 2018. She immediately submitted a request for review.
(d) The Board denied the tenant’s request for review without a hearing. As a result, the tenant was not afforded an opportunity to explain why she was not able to reasonably participate at the N5 hearing.
(e) The tenant’s original representative from a community legal clinic withdrew due to conflicts of interest involving the landlord. The representative ended her involvement with the tenant in a manner which caused the tenant much confusion and anxiety. Subsequently and without the involvement of the previous representative, the tenant was contacted by a different lawyer who introduced himself as her new representative.
(f) The tenant is an unsophisticated litigant and does not possess the necessary background to fully comprehend this litigation matter at hand. Despite having representation she was unaware of and confused as to her personal options. At all material times, the tenant believed she was contesting the eviction application.
(g) The tenant was not properly coached or informed about what transpired between the two counsel and how the hearing would proceed. The tenant did not understand the flow of the hearing nor was her testimony elicited. The tenant was confused and overwhelmed by her lawyer’s submissions. She was waiting to be asked to speak by the board member but no such invitation to participate was extended. The tenant thus found herself bound to arrangements that were beyond her comprehension and which she had never authorized.
[6] An affidavit was filed on the motion by S.M. Korman, a paralegal who represented the landlord in the LTB proceedings. He deposed that prior to granting the order, the Member determined that both parties and their respective representatives understood the order being made, its consequences and that it was being entered into voluntarily. The tenant denies this.
[7] The tenant was ordered as a term of an adjournment of this motion to obtain the record of the proceedings before the LTB which was filed today. There is no reference in the transcript to the tenant being asked if she understood the order, its consequences and that it was being entered into voluntarily. The transcript also discloses that the representative of the landlord specifically advised the Member that the landlord neither opposed nor consented to the order.
Issues raised by the tenant
[8] Was the tenant accorded procedural fairness in the hearing before the LTB?
[9] Was the tenant denied natural justice by having no opportunity to appear before the Vice Chair to explain about her failure to comprehend what she was agreeing to, that her representative acted without proper instruction or authorization and that she was not able to reasonably participate at the hearing and a mistake was made?
Issues raised by the landlord
[10] Should the tenant’s appeal be quashed under s.210 of the Residential Tenancies Act, 2006 S.O.2006, c.17 because it is an appeal of a consent order and fails to raise a question of law?
Jurisdiction of the Court
[11] Section 210(1) of the Residential Tenancies Act, 2006, S.O.2006, c.17 (the “Act”) provides the Divisional Court with jurisdiction in this matter in respect of an appeal of the order limited to questions of law.
Standard of Review
[12] The standard of review of a decision of the Board when interpreting its home statute, regulations and rules is reasonableness: see First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54. In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47. The Court should not substitute its own reasons if the impugned orders were reasonable, appropriate and within the range of acceptable outcomes.
[13] There is no explicit standard of review for questions of procedural fairness or natural justice. The court is required to evaluate whether the rules of procedural fairness or of natural justice have been adhered to in the special circumstances taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817.
Analysis
[14] The landlord’s application proceeded on an unopposed basis with both parties in attendance and represented. While I agree with its description as a “quasi-consent”, I am unable to find that it was a consent order requiring leave to appeal pursuant to Section 133 of the Courts of Justice Act because the Board was specifically asked not to make a consent order.
[15] While there was no issue raised with respect to the tenant’s representation during the proceeding, the transcript of the hearing before the LTB makes it clear that the tenant was not given any opportunity to speak. The Member made no inquires to determine that the tenant understood the order being made, its consequences and that it was being entered into voluntarily.
[16] In these circumstances, I am unable to find that the appeal is manifestly devoid of merit, has no reasonable prospect of success and/or is an abuse of process. The tenant should have an opportunity to perfect the appeal so that she can make an argument that she was denied procedural fairness in the hearing before the LTB and denied natural justice by the Vice Chair.
[17] This is not a case where the tenant is using the process to remain in the unit and not pay rent. She has paid the rent for January, 2019. She agrees to pay the August, 2018 rent which was waived under the LTB order and the September, 2018 rent to which her last month’s rent was applied under the LTB order. She shall accordingly pay $1226.26 within 30 days and continue to pay rent of $613.13/month until the appeal is heard. The tenant shall perfect the appeal by the end of February, 2019.
[18] The motion is dismissed. Costs of this motion are reserved to the panel hearing the appeal including the costs of the attendance before Justice Myers on December 17, 2018 which he fixed at $750.
________________________ Backhouse, J.
Released: January 10, 2019
Two-Two-Ought-Four Dufferin Limited v. Mitchell, 2019 ONSC 276
DIVISIONAL COURT FILE NO.: 602/2018
Landlord and Tenant Board File NOTSL-91880-18
DATE: 20190110
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Two-Two-Ought-Four Dufferin Limited Landlord/ Respondent
– and –
Meryl Mitchell Tenant/Appellant
REASONS FOR JUDGMENT
Backhouse, J.
Released: January 10, 2019