CITATION: Delanty v. Gloucester Housing Corporation, 2019 ONSC 5286
DIVISIONAL COURT FILE NO.: DC-18-2407
LANDLORD AND TENANT BOARD FILE NO.: EAL-73036-18 DATE: 2019/09/12
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Aston, S.T. Bale, Favreau JJ.
BETWEEN:
Jacqueline Delanty
Appellant
– and –
Gloucester Housing Corporation,
Respondent
Self-represented
Michael K.E. Thiele, Counsel for the Respondent
HEARD at Ottawa: September 11, 2019
Aston, J. (Orally)
[1] This is an Appeal from the Landlord and Tenant Board (the “Board”) issued May 18, 2018, with respect to two (2) applications brought by the landlord to terminate the tenancy and evict the appellant.
[2] On the L1 application, for non-payment of rent, Ms. Delanty was ordered to pay her landlord $79.30, representing the balance of rent owing up to the hearing date, together with $4.41 per day for the use of the unit, from May 19, 2018 until the date she vacated the premises. Ms. Delanty does not challenge the finding that there were arrears of rent as of the date of the hearing. Had the eviction order been made simply on the basis of rent arrears, the tenant would have had an opportunity to reinstate her right to continue occupation through payment of the amounts ordered for arrears of rent, occupation use and costs. Moreover, it is apparent from the transcript (pages 2-3) that the Board might well have granted relief from forfeiture, given the tenant’s personal circumstances, had the modest arrears of rent been the only issue. However, there is a significant distinction between the L1 application and the more serious L2 application when it comes to the appropriate disposition.
[3] The more serious L2 application is founded upon the allegation that the tenant was a party to an illegal act, or “for causing serious problems to the rental unit or the residential complex”, by interference with the hydro supply to her unit.
[4] At some point in 2017, Ms. Delanty’s payments to Ottawa Hydro were in arrears. It disconnected her hydro service as a consequence. In order to restore hydro service to Ms. Delanty’s unit, it was necessary for an inspection to be completed and for work to be done by a third-party contractor for the damaged hydro switch and box servicing her unit. In addition, the tenant was required to pay Ottawa Hydro a substantial fee for “deliberate, unauthorized energy usage”. That fee was ultimately paid by Ontario Works, on behalf of Ms. Delanty. The third-party cost of the work for the restoration of service entailed a cost of approximately $560.00 which the landlord paid and now wishes to recover from the tenant.
[5] The required inspection was carried out November 3, 2017. The inspector concluded that the tenant or someone on her behalf had cut the deadbolt off the protected hydro switch, apparently for the purpose of restoring hydro to the individual unit. This opinion is in the form of double hearsay in a document sent by a person not called as a witness. However, it is not referred to in the reasons of the Board and was not relied upon in the Board’s reasoning. There was direct testimony before the Board about the extreme danger created by the severance of the deadbolt and the rerouting of electricity to the rental unit without proper steps having been taken.
[6] The tenant denied that she or anyone on her behalf illegally restored electricity to her rental unit. The Board did not accept her denial of responsibility. The tenant’s rental unit was the only one to benefit from the restored electricity and the Board member stated, “I cannot think of any reason, and none was suggested, why anyone else but the tenant or someone on her behalf would illegally restore electricity to her unit”. The second reason given by the Board member is that “the tenant did not object” to payment of the deliberate unauthorized energy usage fee being paid in her name by Ontario Works and she did not lodge an appeal of Ottawa Hydro’s determination that she was the one responsible for the unauthorized energy usage fee.
[7] In concluding that the unauthorized restoration of electricity to the rental unit was both an illegal and extremely dangerous act, the Board refused to exercise any discretion with respect to eviction and ordered the tenant evicted as of June 30, 2018.
[8] This Court’s jurisdiction stems from s. 210 from the Residential Tenancies Act, 2006, S.O. 2006, c. 17. The only basis for appeal is on the question of law. Findings of fact are beyond the Court’s purview unless those findings amount to an extricable error of law, as for example through a fundamental misapprehension of, or failure to consider, relevant evidence or findings that are simply not supported by any evidence. The standard of review is reasonableness.
[9] The finding that supported the second reason of the Board member, namely that Ms. Delanty did not object to the payment of the unauthorized usage fee by Ontario Works, may well represent a misapprehension of the evidence or speculation. It is apparent from pages 45-46 of the transcript that Ms. Delanty did dispute Ottawa Hydro’s conclusion that she ought to be responsible for that fee. She did not pay the unauthorized usage fee, nor did she request Ontario Works to pay it on her behalf. An obvious reason for her not to dispute the payment by Ontario Works is that without that payment her hydro service would not have been restored. Restoration of service would be an obvious priority for her. That is a more rational inference than construing this circumstantial evidence of failing to object to the payment as an admission of culpability. That said, the uncontradicted evidence that the only person to benefit from the interference with the hydro meter was the Appellant is reason enough to support the Board’s factual conclusion.
[10] The Board’s finding that Ms. Delanty or someone on her behalf caused the damage to the hydro service and committed an illegal act endangering others in doing so, is based on circumstantial evidence only. This factual finding is only an error of law if it is a speculative conclusion without any evidence to support it. In this case it was open to the Board to draw the inference that it did for the reason given.
[11] It was not necessary for the Board to explicitly rule on Ms. Delanty’s credibility in rejecting her denial of responsibility. The inference drawn from the circumstantial evidence overwhelmed her uncorroborated testimony.
[12] The Appellant submits that she is entitled to the presumption of innocence. However, this is not a criminal case. That the onus of proof is on the landlord is simply a balance of probability test, a burden the Board found had been met.
[13] Ms. Delanty also raises as an issue her mental state at the hearing, at least she does in her written material before this Court. However, a review of the transcript confirms that she never informed the Board at the time that she required any accommodation as a result of her mental state, or for any other reason, nor has she provided any evidence to support this ground of appeal.
[14] The Court is unable to discover any error of law or breach of procedural fairness before the Board and is bound by the essential finding of fact, which is not unreasonable on the evidence.
[15] The Appeal is therefore dismissed.
[16] An Order is also granted lifting the automatic stay of the Board’s Order, created by the filling of the Notice of Appeal. However, given the personal circumstances of the Appellant, the Order directing the Sheriff to enforce eviction is not to be acted upon before November 30, 2019.
___________________________ Aston J.
I agree
Bale J.
I agree
Favreau J.
Date of Reasons for Judgment: September 11, 2019
Date of Release: September 12, 2019
CITATION: Delanty v. Gloucester Housing Corporation, 2019 ONSC 5286
DIVISIONAL COURT FILE NO.: DC-18-2407
LANDLORD AND TENANT BOARD FILE NO.: EAL-73036-18 DATE: 2019/09/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, S.T. Bale, Favreau JJ.
BETWEEN:
RE: Jacqueline Delanty, Appellant
AND
Gloucester Housing Corporation, Respondent
BEFORE: Aston, Bale, Favreau JJ.
COUNSEL: Self-represented
Michael K.E. Thiele, Counsel for the Respondent
ORAL REASONS FOR JUDGMENT
Aston,J.
Date of Reasons for Judgment: September 11, 2019
Date of Release: September 12, 2019