Asnake and Vittorio v. Aldrey, 2019 ONSC 4092

CITATION: Asnake and Vittorio v. Aldrey, 2019 ONSC 4092

Landlord and Tenant Board File Numbers: CEL-78647-18-RV and CEL-78647-18-RV2

COURT FILE NO.: 809/18

DATE: 20190705

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Sofia Asnake and Daniel Vittorio, Respondents in appeal; moving parties on motion to quash

AND:

James Aldrey, Appellant; respondent on motion to quash

BEFORE: Kiteley J.

COUNSEL: Feven Glaizghi, counsel for Asnake and Vittorio

James Aldrey, self-represented. Assisted by Amicus Natasha Danson

HEARD at Toronto: June 6, 2019

ENDORSEMENT

[1] Pursuant to s. 210 of the Residential Tenancies Act, 2006[^1], James Aldrey (the “Tenant”) seeks to overturn two decisions of the Landlord and Tenant Board (the “Board”), dated November 5, 2018 and December 11, 2018, which resulted in the termination of his tenancy. Sofia Asnake and Daniel Vittorio (the “Landlords”) have brought this motion to quash the Tenant’s appeal on the basis that the appeal has no merit. For the reasons that follow, the motion is granted and the appeal is quashed.

Background

[2] In January 2014, the Tenant and the Landlords entered into a lease agreement. Asnake operates a hair salon on the street level and the rental unit is on the second story. After the one-year lease, the Tenant became a month to month tenant.

[3] The Landlords are married and have two sons. On July 30, 2018, the Landlords served on the tenant personally a N12 notice indicating that they required the rental unit for the older son’s full time use and for Asnake’s periodic use. In the notice, the termination date was September 30, 2018.

[4] The application was heard on September 7, 2018. The Landlords attended with a legal representative. The Tenant did not attend. In the order dated September 26, 2018, the Member made the following findings:

(a) the Tenant had been served with the Notice to Terminate giving September 30, 2018 as the date of termination;

(b) pursuant to s. 48(1) of the Act the Landlords had satisfied the “good faith” requirement;

(c) the Member was not satisfied that the Landlords had given compensation pursuant to s. 48.1 and the Member directed the Landlords to provide proof. The Member then became satisfied that the Landlords had provided the compensation required;

(d) the Member considered all the disclosed circumstances in accordance with subsection 83(2) of the Act and found that it would be unfair to grant relief from eviction pursuant to s. 83(1) of the Act;

(e) the Member made an order terminating the tenancy as of October 7, 2018, and an order for the Tenant to pay compensation for use of the unit from October 8, 2018 to the date he moved out.

[5] On September 28, 2018, the Tenant attended at the Board office and submitted a request to review and a request for a stay pending consideration of the review request. On October 1, 2018, the Board issued a stay order.

[6] The Review Hearing was conducted on October 25, 2018. Both the Landlords and the Tenant attended. The basis for the review request was the assertion by the Tenant that he had not received notice of the September 7, 2018 hearing in the mail. The transcript of the hearing indicates that the Member reviewed the Board file and concluded that the Board had not served the Tenant with the Notice of Hearing by mail which the Landlords did not contest. At page 10 of the transcript, the Member granted the review request and then conducted a rehearing of the N-12 application. Asnake, the Tenant, and the Tenant’s roommate gave evidence. The Member reserved decision.

[7] In the Review Order dated November 5, 2018, the Member held as follows:

(a) the Tenant did not challenge the Landlord’s evidence that she has an adult child who requires the unit for his residential occupation as it is closer to his college;

(b) the Tenant relied on the timing of his complaint about the refrigerator earlier in July to suggest that the July 30, 2018 Notice was in bad faith and retaliatory. The Member did not accept that the Notice constituted retaliation. The Member accepted the Landlord’s evidence that she had been telling the Tenant for years that it was her intention to have the rental unit for her children when they attended college. On the balance of probabilities, the Member found that the Landlord did, in good faith, require the rental unit;

(c) there was no evidence that the Landlords were aware that the Tenant had made complaints through the 311 service to Property Standards. The Tenant conceded that he had never brought a tenant application concerning the issue of the fridge disrepair. On that basis, there was no evidence on which the Member could be satisfied that s. 83(3) of the Act applied;

(d) Vittorio had paid compensation by September 21, 2018 as ordered. The Tenant had accepted the e-transfer but then had returned the money to Vittorio and he accepted it back. The order was made conditional on the Landlords again paying the required compensation;

(e) pursuant to s. 83(1)(b) of the Act, the Member terminated the tenancy as of December 31, 2018, to give the Tenant time to relocate;

(f) if the Tenant did not vacate by December 31, 2018, the Tenant was required to pay compensation.

[8] On December 4, 2018, the Tenant requested a review of the November 5, 2018 order. A preliminary review was completed without a hearing. In the Review Order dated December 11, 2018, the Member denied the request for review and held as follows:

(a) Pursuant to rule 29.17 of the Board’s Rules of Practice, the Board will not accept a second review request. However, pursuant to Rule A4.2 of the Social Justice Tribunal Common Rules, the Board waived the application of rule 29.17 because the basis of the first review was that the Tenant had not attended the original hearing. Therefore, the first opportunity the Tenant had to challenge the Board’s findings was in the hearing on October 25, 2018.

(b) The Tenant had raised five reasons for a review order: the full amount of compensation should have been $1700, not $1670 as was paid by the Landlords; the affidavit required by s. 72(1) of the Act was not presented in the hearing on October 25, 2018 and was not made an exhibit; the Tenant was prevented from questioning Vittorio because he did not attend on October 25, 2018; the Tenant was prevented from presenting evidence in the form of viewing what was on the screen of his cell phone and he had additional evidence as to his complaints about the refrigerator; and the Board refused to hear evidence with respect to complaints other than those regarding the refrigerator, which the Tenant had made over the years.

(c) The Member dealt with each of those issues and concluded that she was not satisfied that there was a serious error in the November 5, 2018 order or that a serious error occurred in the proceedings.

[9] On December 31, 2018, the Tenant filed a Notice of Appeal and a Certificate Respecting Evidence. The Divisional Court issued the Certificate of Stay.

[10] The Tenant asserts the following grounds of appeal:

(a) the orders contain errors of law and procedure that materially affected the Board’s decision;

(b) the Tenant was not afforded an opportunity to present evidence with respect to the history and nature of the maintenance issues. This evidence would have provided an accurate picture of events through which the N12 could be seen as retaliatory;

(c) Vittorio attended the October 25, 2018 hearing but denied being a second landlord and thus the Tenant was unable to cross-examine him and was prejudiced as a result;

(d) the Review Order states that the Tenant did not summon Vittorio and infers that his questioning must have been unimportant. That is an unreasonable conclusion to draw for several reasons identified;

(e) the Board relied on an erroneous interpretation and/or application of the law resulting in the erroneous conclusion that the compensation requirement under s. 48.1 had been fulfilled.

[11] In an affidavit sworn January 31, 2019, the Tenant said that, on November 8, 2018, he had ordered and paid for the recording of the hearing on October 25, 2018. He said he had not received it until he attended at the Board office on January 31, 2019.

[12] It appears that the Landlords ordered the transcript and it was completed April 12, 2019.

Motion to Quash

[13] On April 6, 2019, counsel for the Landlords served the Tenant with the Motion Record returnable April 24, 2019, in which the Landlords asked for an order quashing the Notice of Appeal and related relief. The motion record included an affidavit of Daniel Vittorio sworn April 6, 2019, an affidavit of Sofia Asnake sworn April 6, 2019, attached to which was the affidavit of their older son sworn August 20, 2018, and written confirmation that their younger son had been accepted to college and would also occupy the rental unit. The Landlords also served a factum, book of authorities, and a copy of the transcript of the hearing held on October 25, 2018.

[14] The Tenant filed two three inch binders. The first contain his affidavit sworn April 16, 2019 with adjacent documents in tabs A to J that are not properly made as exhibits. He also included a copy of all of the material that the Landlords had filed. That binder contains material that might be considered to be a factum. The second binder is accompanied by a memo filed June 3, 2019 to the court apparently explaining the unorthodox nature of his material. The binder is described as a “Schedule of Documents” and it has an index and documents tabbed from B to Q. A considerable quantity of the material in the second binder consists of historic data about issues such as hot water usage and Toronto hydro usage. None of the documents from B to Q have been referenced in an affidavit. Based on my review of the material, much of it was not before the Board either in October, 2018 or for the review hearing in December.

[15] On April 24, 2019, Sachs J. made an endorsement in which she indicated that the Tenant had requested an adjournment to June 6, 2019. In that endorsement she ordered the Tenant to pay, in May, rent for April and May 2019, each in the amount of $1670, and on or before June 1, 2019, rent for June, failing which the Landlords could bring a motion on notice for an order quashing the appeal. She also reserved costs of June 6, 2019 to the judge hearing the motion to quash.

[16] The Tenant did make those rent payments.

[17] The Landlords take the position that the appeal should be quashed because it is manifestly devoid of merit, is frivolous and a delay tactic, and the Board has exercised its s. 83 jurisdiction reasonably.

[18] Subsection 210(1) of the Act permits an appeal to the Divisional Court only on a question of law. The standard of review is reasonableness and deference is afforded where a tribunal is interpreting its own statute including s. 48 and s. 83.[^2]

[19] Section 134(3) of the Courts of Justice Act[^3] provides the jurisdiction to quash an appeal where the appeal is manifestly devoid of merit.[^4] The power to quash should seldom be exercised.[^5]

[20] While said to be errors of law in the notice of appeal, the grounds relied on are essentially challenges to the Board’s findings of fact. The key issue was whether the Landlords, “in good faith”, required possession of the rental unit for the purpose of residential occupation for a period of at least one year. At paragraph 11 of the order dated November 5, 2018, the Member noted that “the Tenant did not challenge the Landlord’s evidence that she has an adult child who requires the unit for his residential occupation as it is closer to his college”. At the hearing on October 25 and during submissions on the motion to quash, the Tenant did not take issue with the reason for the Landlord claiming possession. The Tenant’s focus was that the claim for possession was not “in good faith” because it was retaliatory. During the hearing on October 25, 2018, the Member afforded the Tenant the opportunity to provide evidence of retaliation. The Tenant referred to historic issues but the only complaints coincidental with the N12 Notice on July 30, 2018 were two complaints about the refrigerator earlier in July. At paragraph 11, the Member did not accept that a repair of this nature and without any corroboration indicated that the Landlord was retaliating. On the basis of that finding, the historic repair issues to which the Tenant had referred were irrelevant. Importantly, the Member accepted the Landlord’s testimony that she had been telling the Tenant for years that it was her intention to have the rental unit for her children when they attended college. The finding of the Member that the Landlord required the rental unit in good faith is a finding of mixed fact and law that is not subject to appeal. That ground is therefore without merit.

[21] At paragraph 12 of the decision dated November 5, 2018, the Member dealt with the other submission pursuant to s. 83(3), namely that the N12 notice was retaliatory because the tenant had complained to Property Standards to enforce his rights. The Member found that there was no evidence that the Landlords were aware of the complaints and that the Tenant had conceded that he had never brought a tenant application concerning the issue of the fridge disrepair. The Member’s finding at paragraph 12 that there was no evidence that s. 83(3) applied was a finding of mixed fact and law that is not subject to appeal.

[22] At paragraph 14, the Member referred to “all of the disclosed circumstances” and found that it would not be unfair to postpone the eviction for a period of 7 weeks to December 31, 2018. That was an exercise of discretion which is not an error of law and is not subject to appeal. [^6]

[23] At the hearing on October 25, 2018, the Tenant explained his personal circumstances. At page 31 of the transcript he described his anxiety disorder, and his multiple accommodation moves as he was growing up. In contrast, he had lived in the rental unit since early January 2014, a period of almost 5 years, which was the longest he had ever resided at a single location. He had acquired a cat and he expected difficulties in finding accommodation where he could take the cat. He referred to the challenges in the Toronto rental market. It was clear from the transcript that it was important to him to remain in possession of the unit. In his submissions at the hearing of the motion to quash the appeal, he repeated that this was the most stable home he had had and that this stability had a positive effect on his mental health challenges. The filing of the Notice of Appeal on the day scheduled for the termination of possession, the failure to perfect the appeal even after the motion to quash was served, and his persistence in pursuing continued occupation, all serve to demonstrate that this appeal is an effort to delay the termination of the tenancy.

[24] The appeal should be quashed because it does not raise questions of law and is therefore manifestly devoid of merit. It is also an attempt to delay the eviction.[^7]

[25] On the record before me, I infer that the son of the Landlord who was the original basis for possession needs occupation in advance of the school year. Since the N12 was served on July 30, 2018, the Tenant has had 11 months to find alternate accommodation. Since the review order dated December 11, 2018, he has had almost seven months to do so. The Tenant has had the benefit of many indulgences at the expense of the Landlords. Notwithstanding those indulgences, I will extend the occupation date until the end of this month to give the Tenant another 7 weeks after the hearing of the motion to quash on June 6, 2019 while ensuring that the son has possession of the unit in time for school.

Costs

[26] As indicated above, in her endorsement dated April 24, 2019, Sachs J. reserved costs of that attendance (75 minutes) to the hearing of the motion to quash. On June 6, 2019, I started this matter at about 11:45, recessed at 12:55 after hearing submissions, and on resumption at 2:20, advised the parties I would take the matter under reserve. All of that constitutes at least ½ day of counsel’s time. Counsel for the Landlords had served a bill of costs as of April 12, 2019, in which the Landlords claimed a counsel fee for preparation and attendance on April 24, 2019, of $2500 plus HST and disbursements of $545.49 before the transcription fee, subsequently verified as $355.27.

[27] The Landlords have been successful and are entitled to costs. The amount below reflects the preparation of the materials and counsel fee on April 24 and on June 6, 2019, and is proportionate to the success and the issues in the case.

ORDER TO GO AS FOLLOWS

[28] The motion is granted. The appeal is quashed. The stay of the Board orders is lifted.

[29] The Tenant shall pay costs to the Landlords in the amount of $900 for disbursements including HST and $2000 for fees plus HST of $260, payable within 60 days of the date of release of this decision.

[30] The Tenant shall move out of the rental unit on or before July 31, 2019.

[31] If the unit is not vacated on or before July 31, 2019, then the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced forthwith.

[32] The Landlords may take out this order without approval by the Tenant.

Kiteley J.

Date: July 05, 2019

[^1]: S.O. 2006, c. 17 (the “Act”).

[^2]: First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54 at para. 17.

[^3]: R.S.O. 1990, c. C.43.

[^4]: Lesyork Holdings Ltd. v. Munden Acres Ltd., [1976] O.J. No. 2225.

[^5]: Schmidt v. Toronto-Dominion Bank, [1995] O.J. No. 1604 (Ont. C.A.).

[^6]: Jackson v. Capobianco, 2017 ONSC 3324 at para. 7.

[^7]: Ibid at para. 9.