CITATION: Toronto Community Housing Corp. v. Palma, 2019 ONSC 5421
DIVISIONAL COURT FILE NO.: 144/18 LANDLORD AND TENANT BOARD
FILE NO.: TSL-90768-17, TSL-90768-17-SA, TSL-90768-17-RV
DATE: 20190918
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Backhouse and Favreau JJ.
BETWEEN:
TORONTO COMMUNITY HOUSING CORP.
Landlord
(Respondent)
– and –
MAGDALENA PALMA and ROBERTO PALMA
Tenants
(Appellants)
Katie Douglas, for the Landlord (Respondent)
Magdalena Palma, acting in person
HEARD at Toronto: September 18, 2019
SWINTON J. (Orally)
[1] The appellant appeals orders of the Landlord and Tenant Board (the “Board”) dated November 28, 2017, January 22, 2018, and February 26, 2018 that terminated her tenancy because she failed to comply with the terms of a settlement reached on August 8, 2017.
[2] In this settlement, reached after mediation, she agreed that she owed arrears of $26,760.00. She agreed to pay her regular monthly rent and $250.00 towards arrears each month.
[3] It was uncontested before the Board in the January 18, 2018 hearing that she failed to pay rent and $250.00 towards arrears in November, 2017, and that she did not pay anything in December, 2017 and January, 2018. According to TCHC, there has been no payment since October 2017, and arrears were $32,369.00 as of May 2019.
[4] The appellant raises two principal grounds of appeal:
(1) Roberto Palma was not properly served and did not have a chance to participate in the Board process.
(2) Ineffective assistance of counsel, because the appellant was not allowed to present evidence she wished to present.
[5] With respect to the first argument, we are satisfied that Roberto Palma was properly served as a member of the household by service on the unit. The appellant did not raise the issue of his participation before the Board, and the Board reasonably assumed that the appellant was representing the household.
[6] With respect to the second ground of appeal, in the context of a civil case, the ineffective assistance of counsel is very rarely a successful ground of appeal and requires demonstrating that there was a miscarriage of justice. In this case, the appellant does not point to any evidence that would have changed the outcome of the proceedings before the Board.
[7] The receipts from the bank she claims she would have presented do not establish that she paid rent during the relevant period, which is after the settlement agreement in August 2017. In addition, the Board made a finding that the appellant’s evidence about trying to pay rent in November and December 2017 was not credible. She was allowed to lead this evidence, but the Board did not believe her. This is not attributable to ineffective counsel.
[8] With respect to the appellant’s claim that her legal representative failed to request an audit of the state of her account with TCHC, her legal representative requested and obtained the client’s ledger. We are not satisfied there was anything else to provide, particularly anything relevant to whether she had breached the mediated settlement.
[9] For these reasons, the appeal is dismissed. TCHC agrees that the tenant should be given three to four months so that she can find a new residence, given that she has the custody of two small children and has lived in Toronto Community Housing for approximately 30 years. However, she should be required to pay rent on an ongoing basis.
[10] Therefore, an order is to go as follows:
(1) The appeal is dismissed.
(2) The stay of the Board’s eviction order is lifted.
(3) The Sheriff shall not carry out the eviction before January 31, 2020, provided that the appellant pays rent of $276.00 for September 2019 and $276 for October 2019 on October 1, 2019 and the rent of $276.00 (or the rent as adjusted by TCHC in accordance with the law) on the first of each month thereafter.
(4) If the appellant does not pay the rent above, TCHC may apply to the Sheriff to immediately carry out the eviction order.
(5) TCHC does not seek costs.
(6) The appellant’s approval of the draft order is dispensed with.
Swinton J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Favreau J.
Date of Oral Reasons for Judgment: September 18, 2019
Date of Release: September 19, 2019
CITATION: Toronto Community Housing Corp. v. Palma, 2019 ONSC 5421
DIVISIONAL COURT FILE NO.: 144/18 LANDLORD AND TENANT BOARD
FILE NO.: TSL-90768-17, TSL-90768-17-SA, TSL-90768-17-RV
DATE: 20190918
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Favreau JJ.
BETWEEN:
TORONTO COMMUNITY HOUSING CORP.
Landlord
(Respondent)
– and –
MAGDALENA PALMA and ROBERTO PALMA
Tenants
(Appellants)
ORAL REASONS FOR JUDGMENT
Swinton J.
Date of Oral Reasons for Judgment: September 18, 2019
Date of Release: September 19, 2019