Court File and Parties

Citation: Sleeping Giant Property Management v. Clouston, 2019 ONSC 3990 Divisional Court File No.: DC-18-002-00 Date: 2019-06-24 Superior Court of Justice – Ontario Divisional Court

Re: Sleeping Giant Property Management and Robert Murray, Appellants - and - Frances (Kathy) Clouston and Albert Martin, Respondents

Before: Lafreniere, Myers, and Williams JJ.

Counsel: Robert Murray, in person Rodi-Lynn Rusnick-Kinisky, for the Respondents

Heard at Thunder Bay: June 24, 2019

Endorsement

Myers J. (orally):

[1] The appellants appeal from the decision of the Landlord and Tenant Board dated January 17, 2018 in which the respondents were awarded $3,712.85 plus post-judgment interest due to the landlords’ failure to meet their maintenance duties under the Residential Tenancies Act, 2006. SO 2006 c.17.

[2] The landlords assert that the board erred in finding that Sleeping Giant was a landlord; that Mr. Martin was a tenant; and that the landlords failed to meet their maintenance obligations to the tenants. The landlords also assert that the board failed to consider the obligations of the tenants to see to the ordinary cleanliness of the premises and to refrain from obstructing the landlords under ss. 33 and 36 of the statute.

[3] An appeal lies to this court on an issue of law only under s. 210 of the statute. Issues of fact or mixed fact and law are not appealable to this court. That means that if the board applies the correct legal test to the issues before it and there was some evidence on which findings of fact were based, there is no appeal from the facts as found by the board or from the result when the facts, as found by the board, are assessed under the correct legal standard. Absent an error of law, determinations about the facts of what happened and whether the facts fit the applicable legal tests are for the board alone.

[4] The standard of review for the issues of law that may be raised is reasonableness. As long as the board’s interpretation of law was intelligible, justifiable, transparent, and fell within the range of outcomes reasonably available to it, then this court will defer to the board’s findings of law.

[5] The definition of landlord: The board added Mr. Murray as landlord in addition to Sleeping Giant named by the tenant. The board made no error of law in finding that Sleeping Giant being named in the lease falls within the legal definition of landlord in s .2 (1) of the statute.

[6] The definition of tenant: In light of the board’s findings of fact that Mr. Martin always resided in the unit and paid rent jointly with Ms. Clouston, the board made no error of law in finding that he falls within the definition of tenant in s.2 (1) of the statute.

[7] Moreover, Mr. Murray’s speculation that the tenants might have tailored their evidence because neither could be excluded from the hearing does not raise a question of law or procedural fairness in the circumstances of this case.

[8] The findings that the unit was rendered uninhabitable by the infestation of rodents and that the landlords failed in their obligations to keep the unit and the building from becoming infested are findings of fact or mixed fact and law for which there is no appeal allowed by the statute.

[9] If the board failed to even consider a legal issue that was properly raised before it that may amount to an error of law. However, in making its findings concerning the rodent infestation, the board considered the facts, including the lack of cleanliness of the appliances, as well as the structural issues with the building and the unit. In finding that the landlords failed to meet their obligations, it implicitly rejected the alternative that the tenants’ breach of duty led to the infestation. The damages were properly reduced to deal with the non-payment of rent.

[10] As to the question of the tenants’ obstruction of the landlords’ remediation efforts, the board considered the landlords’ failure to take meaningful and prompt action and the tenants’ insistence on being present when the landlord wished to attend in setting the quantum of rent abatement. The landlord was unable to point to any error of law in the board’s treatment of that issue.

[11] As there were no errors of law committed by the board, the appeal must be dismissed.

Lafreniere J (orally):

I have written out the endorsement which I can read, for the record.

“For the oral reasons provided by Myers J. the appeal is dismissed. The respondents are entitled to costs which we fixed at $6,000.00, inclusive of disbursements and HST.”

Lafreniere J.

I agree_______________________________ Myers J.

I agree_______________________________ Williams J.

Date of Reasons for Judgment: June 24, 2019

Date of Release: June 27, 2019