Cliffside Court Housing Co-Operative Inc. v. Jamila Redhead

CITATION: Cliffside Court Housing Co-Operative Inc. v. Jamila Redhead, 2019 ONSC 2972

DIVISIONAL COURT FILE NO.: 39/19

DATE: 20190515

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

CLIFFSIDE COURT HOUSING CO-OPERATIVE INC. Applicant on the Motion/Respondent on the Appeal/Appellant by Cross-Appeal

– and –

JAMILA REDHEAD Respondent on the Motion/Appellant on the Appeal/Respondent by Cross-Appeal

COUNSEL: Safia J. Lakhani, for the Respondent David Strashin, for the Appellant

HEARD at Toronto: May 14, 2019

BEFORE: Backhouse J.

REASONS FOR JUDGMENT

[1] This is a motion to quash an appeal in respect of the Landlord and Tenant Board (“LTB”) order evicting Jamila Redhead (“the Member”) from Unit 8 at Cliffside Court Housing Co‑operative Inc., (“the Co-operative”) located at 15 Delano Place (the Unit). The Co-operative is seeking an order lifting the stay on the LTB Orders so that it may enforce the order and regain possession of the Unit.

Facts

[2] The Co‑operative is a housing provider incorporated pursuant to the Co‑operative Corporations Act, R.S.O. 1990, c. C.35, as amended.

[3] The Co‑operative commenced eviction proceedings against the Member at the LTB as a result of her continued failure to pay housing charges in full and on time. The Member’s arrears totalled $18,057.00 (“the Arrears”) as of the date of the Co‑operative’s application to the LTB.

[4] The parties attended the Merits Hearing at the LTB on June 29, 2018. The Co-operative was represented by counsel. The tenant was unrepresented. At the hearing, a payment plan was entered into to resolve the Arrears. LTB Member Debbie Mosaheb issued a consent order incorporating the payment plan (the “Consent Order”). The Consent Order provided that if the Member failed to make payments according to the payment plan, the Co‑operative could collect the entire outstanding balance immediately and could apply, without notice to the Member, to the LTB for an eviction order

[5] The Member breached the Consent Order and the Co‑operative applied to the LTB on October 19, 2018 for an order evicting the Member. That order was granted by LTB Member Harry Cho on November 22, 2018 (the “Eviction Order”).

[6] The Member brought a motion to set aside the Eviction Order. The motion was heard on December 21, 2018. Following a hearing, at which both parties gave evidence, LTB Member Debbie Mosaheb issued an order lifting the stay on the Eviction Order (the “Reinstatement Order”).

[7] The Member subsequently requested a review of the Reinstatement Order on the basis that there was a serious error in the proceedings. The Member’s request for review was denied by LTB Member Egya Sangmuah on January 21, 2019, who stated that the LTB Member’s findings were reasonable and supported by the evidence (the “Review Order”).

[8] The Member seeks to appeal the LTB Orders.

[9] The Co‑operative submits that the grounds cited in the Amended Notice of Appeal do not disclose a question of law and are manifestly devoid of merit and/or were made for the purposes of delaying eviction.

[10] The Member submits that the Amended Notice of Appeal raises the following issues:

(1) issues of procedural fairness and natural justice;

(2) that the Member did not consent to the terms of the Consent Order which was unfair to her; and

(3) that the LTB erred in not properly applying Section 78(11) of the RTA, incorporated by reference into Section 94 of the RTA, pursuant to which the LTB is required to consider all relevant circumstances and only set aside an eviction order if it is satisfied it would not be unfair to do so.

[11] The Member submits that these are questions properly reviewable by this court and that it is not the function of a single judge to adjudicate the appeal or hear it on its merits. The Member submits that this is not a case of an unscrupulous tenant manipulating the law to avoid paying rent. The LTB acknowledges that the Member is paying the housing charges (i.e. rent) and the monthly amount of the outstanding arrears which is set out in the Consent Order and has reduced the arrears from approximately $18,000 at the time this matter was before the LTB to approximately $10,000.

Jurisdiction and Powers on Appeal

[12] Pursuant to section 210(1) of the Residential Tenancies Act (“RTA”), a person affected by an order of the LTB can appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. The Divisional Court may affirm, rescind, amend or replace the decision or order or remit the matter to the LTB with the opinion of the Divisional Court. It may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.

[13] Section 134(3) of the Courts of Justice Act (“CJA”) allows a court, on a motion, to quash an appeal when it is manifestly devoid of merit. The court may also decline to hear an appeal if it is not made on a question of law, as required under s. 210(1) of the RTA. Appeals that are launched to further delay a matter may be found to be an abuse of process. (Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 1976 793 (ON CA), 13 O.R. (2d) 430 (C.A.) at para. 18; Thompson v Parish of Hastings, 2013 ONSC 6829 (Div Ct) at para 11; Regan v Ennis, 2016 ONSC 7143 (Div Ct) at paras 24 and 39.)

Standard of Review

[14] The standard of review applicable to decisions of the LTB where it is interpreting the RTA and exercising its core functions is reasonableness. It is only where the Board is deciding issues of law of central importance to the legal system and that are outside its specialized area of expertise, that the standard of review will be correctness.(Caputo et. al v. Newberg, 2009 32908 (ON SCDC); First Ontario Realty Corporation Limited v. Deng, 2011 ONCA 54; Toronto Community Housing Corporation v. Naidoo, 2018 ONSC 2685 (Div. Ct.))

Analysis

[15] This court has jurisdiction to quash an appeal but this power is exercised sparingly as it is usually difficult to determine the merits of an appeal without hearing it. This is the role of a panel: See Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.); Clarke v. Fok, [2003] O.J. No.489 (Div.Ct.)

[16] Notwithstanding the skilful argument of Ms. Lakhani, only a minimal level of merit is needed to defeat a motion to quash. It is not my task to weigh the relative merits of the parties’ arguments. In my opinion the appellant has raised sufficient legal characteristics in the grounds put forward in her Amended Notice of Appeal that it would be premature for a single judge to dismiss the appeal on grounds that is manifestly devoid of merit or raises no question of law.

[17] Counsel for the Member advises that he has the transcript of the motion to set aside the ex parte order and is in a position to move forward to perfect the appeal. Pending the appeal, the Member shall continue to comply with paragraph 2 of the July 3, 2018 order of the LTB. I shall remain seized of this matter pending the appeal. Should she fail to comply with paragraph 2 of the July 3, 2018 order, this application to quash the appeal may be renewed before me.

Conclusion

[18] The motion is therefore dismissed without prejudice to the Co-operative renewing it before me in the event that the Member does not continue to comply with paragraph 2 of the July 3, 2018 order of the LTB.

___________________________ Backhouse J.

Released: May 15, 2019

CITATION: Cliffside Court Housing Co-Operative Inc. v. Jamila Redhead, 2019 ONSC 2972 DIVISIONAL COURT FILE NO.: 39/19 DATE: 20190515

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CLIFFSIDE COURT HOUSING CO-OPERATIVE INC. Applicant on the Motion/Respondent on the Appeal/Appellant by Cross-Appeal

– and –

JAMILA REDHEAD Respondent on the Motion/Appellant on the Appeal/Respondent by Cross-Appeal

REASONS FOR JUDGMENT

Backhouse J.

Released: May 15, 2019