Boychuck v. JDM Apartments, 2019 ONSC 5805
CITATION: Boychuck v. JDM Apartments, 2019 ONSC 5805
DIVISIONAL COURT FILE NO.: 754/18
LANDLORD AND TENANT BOARD NO.: TSL-95765-18 DATE: 20191007
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, S.T. Bale, and Favreau JJ.
BETWEEN:
Dan Boychuck
Tutalik Boychuck, acting in person
Tutalik Boychuck
Tenants/Appellants
– and –
JDM APARTMENTS
Timothy M. Duggan, for the Respondent JDM Apartments Inc.
Landlord/Respondent
– and –
Mitchell Jules
No one appearing
Sriram Chadalavada
Occupants
HEARD at Toronto: October 7, 2019
ORAL REASONS FOR JUDGMENT
FAVREAU J. (Orally)
[1] The appellant appeals two decisions of the Landlord and Tenant Board dated June 22, 2018 and November 8, 2018.
[2] In the first decision, the Board found that the tenants no longer live in the apartment, and that it is occupied by unauthorized occupants. The Board terminated the tenancy as of July 3, 2018.
[3] The appellant did not participate in the first hearing. She requested a review of the June 22, 2018 decision on the basis that she did not get notice of the hearing until after the decision was made.
[4] The Board granted the request for a review and held a hearing into the issue of whether the appellant received notice of the hearing. In its decision of November 8, 2018, the Board found that the appellant did not prove on a balance of probabilities that she was not reasonably able to participate in the hearing.
[5] The Board made this finding on the basis of the appellant’s own admission that she did receive the notice of hearing in the mail, and that she did not provide a satisfactory explanation for why it did not come to her attention.
[6] Section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17, provides that an appeal lies to the Divisional Court on a question of law.
[7] The appellant has not identified any issues of law in support of her appeal nor do we see any errors of law in the Board’s finding that the appellant was reasonably able to participate in the hearing.
[8] Section 209(2) of the Residential Tenancies Act, 2006 provides that the Board’s power to review a decision or order may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding.
[9] We have reviewed the transcript and are satisfied that the Board’s conclusion is supported by the record. The appellant has not lived at the apartment for a number of years. She allowed other people to occupy the apartment who paid a portion of the rent. She visits from time to time. It is evident that the Notice of Hearing was delivered to the appellant’s mailbox, but that she did not make arrangements to regularly check the mail. In addition, she was aware of notices served by the landlord but made no efforts to ensure that she was aware of notices of hearing sent by the Tribunal by mail.
[10] The Board’s review decision is consistent with the decision of this Court in Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541, at para. 8, to the effect that lack of due diligence is sufficient for the Board to not set aside an order when parties fail to appear.
[11] Having found that there was no error of law in the review decision, there is no basis for us to address the merits of the appeal from the Board’s original June 22, 2018 decision.
[12] The appeal is therefore dismissed.
SWINTON J.
[13] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons delivered today. The stay of the eviction order shall be lifted on November 30, 2019, given that the tenant is current on her rent and the landlord has last month’s rent. The requisition to the Sheriff to carry out an eviction shall not be made before December 1, 2019. Costs to the respondent are fixed at $3,000.00 all in, payable within six months. The tenant’s approval of a draft order is dispensed with.”
Favreau J.
I agree
Swinton J.
I agree
S.T. Bale J.
Date of Oral Reasons for Judgment: October 7, 2019
Date of Release: October 8, 2019
CITATION: Boychuck v. JDM Apartments, 2019 ONSC 5805
DIVISIONAL COURT FILE NO.: 754/18
LANDLORD AND TENANT BOARD NO.: TSL-95765-18 DATE: 20191007
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, S.T. Bale, and Favreau JJ.
BETWEEN:
Dan Boychuck
Tutalik Boychuck
Tenants/Appellants
– and –
JDM APARTMENTS
Landlord/Respondent
– and –
Mitchell Jules
Sriram Chadalavada
Occupants
ORAL REASONS FOR JUDGMENT
FAVREAU J.
Date of Oral Reasons for Judgment: October 7, 2019
Date of Release: October 8, 2019