CITATION: Diane Seguin v. Trena Whinfield, 2019 ONSC 3769
COURT FILE NO.: DC-19-2467
DATE: 2019/06/24
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Diane Seguin
Tenant/Appellant (Responding Party)
– and –
Trena Whinfield
Landlord/Respondent (Moving Party)
Appearing In Person
Alexandra Nantel-Soucy, for the Respondent
HEARD: June 14, 2019.
DECISION ON MOTION TO QUASH APPEAL
R. SMITH, J.:
[1] The landlord, Trena Whinfield, has brought a motion to quash the tenant’s appeal to the Divisional Court of her eviction on grounds that it is manifestly devoid of merit and is an abuse of process because it has been brought solely for the purpose of delay.
Background
[2] On July 17, 2018 the landlord gave the tenant, Ms. Seguin, notice of termination as of September 30, 2018 because she required possession to allow her eldest son to live in the apartment. The landlord currently resides in a two bedroom apartment in the same building with her two adult sons and her spouse and his minor children, who are there every second weekend.
[3] On November 15, 2018, the Landlord and Tenant Board (“Board”), ordered that Ms. Seguin’s tenancy be terminated and she was ordered to vacate the premises. Neither party was represented by a lawyer at this hearing and Ms. Seguin did not ask for an adjournment to obtain legal counsel.
[4] Ms. Seguin sought a Review of the Board’s decision and a Review Hearing was held on January 8, 2019. At the Review Hearing, which proceeded as a hearing de novo, Ms. Seguin requested an adjournment to obtain legal counsel because the landlord had retained a lawyer. Her request for an adjournment was denied by the Board. On February 1, 2019 the initial Board decision was upheld.
[5] The Member’s decision of February 1, 2019, stated that the request for an adjournment was denied because of the ongoing prejudice to the landlord of a further delay, as her son had been sleeping on the living room couch since August of 2018. The tenant had been aware of the hearing date since December 21 and only decided on the day before the hearing that she wanted to retain counsel. In addition, the tenant agreed that she would not suffer any prejudice if the matter was to go forward.
[6] The tenant has also raised two additional grounds of appeal which were not raised at either previous hearing, namely:
(1) The Residential Tenancies Act 2006 has no jurisdiction because it was a commercial tenancy where she carried on a bookkeeping business; and
(2) She disputes the finding of both Board Members that the landlord acted in good faith because a two bedroom rental unit has become available in the building as of May 31, 2019.
[7] At the hearings before the Board, Ms. Seguin argued that the landlord’s notice of termination was made in bad faith and that her tenancy should not be terminated because she had lived in the apartment for 14 years, was single, and had a heart condition. The Board disagreed and found as a fact that the landlord had acted in good faith. The initial Board decision postponed the eviction date to January 2, 2019 due to her advanced age and medical condition. A similar extension was granted to February 28, 2019 by the second Board decision.
Appeal Grounds
[8] Ms. Seguin initially appealed from the Board’s decision essentially on two grounds:
(i) and (ii) She was denied her right to legal representation at the Review Hearing scheduled for January 8, 2019; and
(iii) She was also denied the opportunity to retain legal counsel at the November 6, 20l8 hearing because the landlord failed to serve her with the notice of hearing for that date.
Additional Grounds (iv) and (v)
(iv) The Residential Tenancies Act 2006 has no jurisdiction because it was a commercial tenancy as she carried on a bookkeeping business in the apartment.
(v) She disputes the finding of both Board Members that the landlord acted in good faith because a two bedroom unit became available in the building in May 2019.
Analysis
[9] Section 210(1) of the Residential Tenancies Act states that an appeal from the Board lies on a question of law only. As a result, no appeal to Divisional Court is available based on a question of fact or mixed law and fact.
[10] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 allows a court to quash an appeal in a proper case.
[11] In Shields v Lancelotte, 2016 ONSC 4433, para 21, and in Solomon v Levy, 2015 ONSC 2556, para 34, the court held that the Divisional Court had jurisdiction to quash an appeal where it was manifestly devoid of merit or where the appeal can be said to be an abuse of process because it has been brought only for the purpose of delay. In addition, this power should be exercised sparingly as only a minimum level of merit is needed to defeat a motion to quash.
Ground of Appeal (v) – Lack of Good Faith
[12] The tenant challenges the Board’s finding of the landlord’s good faith, which is a finding of fact based on the fact that another tenant terminated a two bedroom apartment as of May 31, 2019. This ground of appeal is completely devoid of merit because it challenges a finding of fact and not an error in law, is based on facts that occurred well after the notice of termination and the two Board Hearings were held, and relates to a different sized apartment, a two bedroom unit as opposed to a one bedroom unit.
Ground of Appeal (iii) – Failure to Serve Notice of the First Hearing
[13] The landlord failed to serve Ms. Seguin with the notice of hearing for the November 8, 2018 date because she mistakenly believed that the Board would serve the required notice, this fact is of no consequence because Ms. Seguin was aware of and attended the November 8, 2018 hearing and did not seek an adjournment at that time. As a result, I find that ground of appeal (iii) of her initial notice of appeal is also completely devoid of merit.
Appeal Ground of Appeal (iv) – Lack of Jurisdiction
[14] In this ground, the appellant challenges the jurisdiction of the Residential Tenancies Act, alleging that it was a commercial tenancy. This raises a question of law. However, the tenant did not advance this ground at either of the initial Board Hearings and in fact stated that she had lived in the apartment for 14 years. She now alleges that she used the apartment to carry on a bookkeeping business and did not reside in the apartment. The landlord does not disagree, stating that the tenant had not resided in the apartment since she purchased the property in 2010.
[15] As a general rule, courts of appeal do not permit a new issue to be raised on appeal because it prevents the responding party from responding and introducing evidence at the initial hearing and there is an expectation that hearings are final, subject only to appeal.
[16] A party seeking to raise a new issue on appeal must demonstrate that: the evidentiary record is sufficient to determine the issues on appeal; the failure to raise an issue at the initial hearing was not a factual issue; and no miscarriage of justice could result.
[17] Notwithstanding that the tenant has raised a question of law, she has not raised this issue at the two previous hearings and I find that to raise this new issue now after two hearings have been held is an abuse of process and was done solely for the purpose of delay. The tenant sought the benefits and protection of the Residential Tenancies Act by relying on it and testifying that she had lived in the apartment for 14 years. It would be very unfair to the landlord to allow her to raise a new issue on appeal after failing to raise this issue at the two previous hearings.
[18] In addition, no miscarriage of justice will occur from refusing to permit her to raise this new issue on appeal because a commercial month to month tenancy could have been terminated by the landlord giving her 30 days’ written notice of termination in any event. As a result, there is no prejudice to the tenant. The landlord has suffered prejudice as a result of the extensive delay and the costs she has incurred to recover possession of the apartment for valid reasons.
Appeal Grounds (i) and (ii) – Denial of Right to Legal Counsel
[19] The tenant submits that she was denied her right to legal counsel when her request for an adjournment was refused at the second hearing on January 8, 2019. The Board is a specialized tribunal and deference is owed to its decisions by the courts, based on the Supreme Court’s Dunsmuir decision. In this case, the tenant advised the Board Member on January 8, 2019 that she would not suffer any prejudice if her request for an adjournment was denied. In addition, the tenant has not identified any legal error in the proceedings. The Board gave clear reasons for denying her request for an adjournment and in the circumstances the Board Member exercised her discretion to refuse to grant the adjournment for transparent and cogent reasons. I find that the tenant’s appeal on this ground is also completely without merit.
Disposition
[20] For the above reasons, I find that all of the grounds of Ms. Seguin’s appeal are completely devoid of merit and that her appeal is an abuse of process that has been brought solely for the purpose of delay.
[21] Ms. Seguin’s appeal to the Divisional Court is quashed and the Stay of the Order of Board Member Emilie Moniz, dated February 1, 2019 is lifted. Ms. Seguin is ordered to move out of the apartment June 30, 2019 and if the unit is not vacated by that date, the Court Enforcement Officer is directed to give vacant possession of the unit to the landlord on or after July 1, 2019.
Costs
[22] The Appellant Ms. Seguin is ordered to pay costs to the landlord in the amount of $3,000 for legal fees, plus HST, plus disbursements of $655.61 inclusive of HST.
Justice Robert J. Smith
Released: June 24, 2019.
CITATION: Diane Seguin v. Trena Whinfield, 2019 ONSC 3769
COURT FILE NO.: DC-19-2467
DATE: 2019/06/24
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Diane Seguin
Tenant/Appellant (Responding Party)
– and –
TRENA WHINFIELD
Landlord/Respondent (Moving Party)
DECISION ON MOTION TO QUASH APPEAL
R. Smith J.
Date of Release: June 24, 2019.