CITATION: Jocich and Hough v. Apollo, 2019 ONSC 5954
COURT FILE NO.: 19-DC-2489
DATE: 2019/10/15
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
Tanya Jocich Appellant/Respondent on the motion
– and –
Howard Hough Appellant/Respondent on the motion
– and –
Apollo Property Management Limited Respondent/Moving party
Self-Represented
Self-Represented
Ronald S. Petersen, Counsel for the Respondent
HEARD: October 8, 2019 (Ottawa)
Endorsement
H.J. Williams, J.
[1] The respondent Apollo Property Management Limited seeks to quash the tenants’ appeal of a decision of the Landlord and Tenant Board dated April 30, 2019.
[2] The Residential Tenancies Act, 2006, S.O. 2006, c. 17 permits a person affected by an order of the Board to appeal to the Divisional Court, but only on a question of law. (RTA, s. 210(1).)
[3] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that, on motion, a court to which an appeal is taken may, in a proper case, quash the appeal.
[4] Apollo argues that the tenants’ appeal does not raise a question of law, that it is devoid of merit and that it is frivolous, vexatious and an abuse of process.
Chronology
[5] The relevant events began on July 1, 2018, when the tenants failed to pay their rent, which was $946.00/month at the time.
[6] On August 28, 2018, Apollo served the tenants with a notice to end their tenancy. On October 3, 2018, Apollo filed an application with the Board for an order terminating the tenancy.
[7] Apollo and the tenants negotiated an agreement on November 19, 2018 and on November 20, 2018, the Board issued a consent order that reflected the terms of the agreement. The consent order stated that the tenants owed Apollo rental arrears of $4,534.27, that the tenants would pay Apollo $2,692.27 in “guaranteed funds” on or before November 26, 2018 and that, each month for the next seven months, the tenants would pay their monthly rent in full, in guaranteed funds, as well as arrears of $230.25.
[8] The November 20, 2018 consent order also provided that if the tenants failed to make any of the payments set out in the order, the outstanding balance owed to Apollo would become due and Apollo could apply without notice for an order terminating the tenancy and evicting the tenants.
[9] The November 20, 2018 order has not been appealed[^1] or set aside.
[10] The tenants admit that they did not comply with the November 20, 2018 order.
[11] A ledger produced by Apollo shows that the tenants made no payments in November or December of 2018. After November 20, 2018, the tenants made sporadic payments to Apollo but, by the date of the motion, their arrears were $10,863.90, an increase of more than $6,000.00 since the date of the consent order.
[12] The Board terminated the tenancy on January 22, 2019 and ordered the tenants to vacate the apartment by February 2, 2019.
[13] The tenants moved to set aside the January 22, 2019 order. Their motion was scheduled to be heard February 27, 2019 but they did not appear at the hearing.
[14] In an order dated March 15, 2019, the Board dismissed the tenants’ motion and lifted a stay of the January 22, 2019 order.
[15] The tenants requested a review of the March 15, 2019 order, on the basis that they had been unable to attend the February 27, 2019 hearing due to illness. The Board stayed the orders of January 22, 2019 and March 15, 2019 until further order.
[16] The tenants’ motion to set aside the January 22, 2019 was heard on April 16, 2019. The stay of the January 22, 2019 order was lifted in an order dated April 30, 2019.
[17] On May 16, 2019, Apollo served the tenants with a notice to vacate the apartment by May 27, 2019.
[18] Also on May 16, 2019, the tenants delivered a notice of appeal, an appellant’s certificate and certification that the Board’s April 30, 2019 decision was stayed by their appeal.
[19] Apollo heard nothing further from the tenants and served materials in support of this motion to quash the appeal on September 24, 2019.
The tenants’ position
[20] The day before the October 8, 2019 hearing of this motion, the tenants filed a transcript of the April 16, 2019 hearing before the Board. The transcript was dated June 24, 2019; the tenants said that they had received it on July 8, 2019.
[21] The tenants filed no other materials in response to Apollo’s motion.
[22] The tenants were unrepresented at the hearing. Both made oral submissions in response to the submissions of Apollo’s lawyer.
[23] Mr. Hough began by saying that he had a hearing impairment and had not been able to hear all of the submissions of Apollo’s lawyer, although Ms. Jocich had done her best to assist him. Mr. Hough had not raised this as an issue at the outset of the hearing or during Apollo’s lawyer’s submissions. Mr. Hough confirmed that the tenants had received Apollo’s motion record and factum. I ordered a short adjournment to enable the tenants to confer and to further prepare their submissions.
[24] Following the adjournment, the tenants explained that they were both unwell. Mr. Hough said that he had had a head injury and lived with mental health issues. Ms. Jocich said that she was suffering from a medical condition and was about to begin treatment. Ms. Jocich also said that while she had been responding to Apollo’s eviction efforts, her mother had also been unwell and had passed away.
[25] The tenants said that they had been treated unfairly by Apollo for a very long time. They, and Mr. Hough in particular, emphasized that, for an extended period, Apollo had, for no reason, failed to provide them with a letter they had required confirming their tenancy. Mr. Hough produced a copy of the letter. It was dated December 2017, seven months prior to the July, 2018 rental default that gave rise to the current proceedings.
[26] The tenants referred to a long history of rental defaults on their part and eviction efforts on the part of Apollo.
[27] Mr. Hough argued that the tenants’ appeal should be decided by three judges and not only one.
[28] Asked to identify the legal error made by the Board, the tenants said that the Board’s April 16, 2019 hearing had been procedurally unfair in several respects. Ms. Jocich said that the tenants needed to consult a lawyer so that they would be able to answer that question.
[29] The tenants said that they needed more time to obtain legal advice and to prepare a proper response to Apollo’s motion. Mr. Hough initially suggested six weeks. Mr. Jocich said that she was about to embark upon medical treatment that would last for three months and said that they would like as much time as possible.
Analysis
[30] Although the tenants both made quite extensive submissions setting out the reasons why they should be permitted to proceed with their appeal and should not be forced to leave their apartment, their submissions really boiled down to a request for an adjournment to obtain legal assistance to prepare a better response. I am mindful that the tenants were self-represented and that Mr. Hough in particular has health issues and other challenges. It was the first return date of Apollo’s motion.
[31] In different circumstances, on the first return date of a motion, I likely would have granted an adjournment to self-represented litigants who said they wanted to obtain legal advice. In these circumstances, however, I reject the tenants’ request for more time. An adjournment will not change the outcome of the motion; it will only delay the inevitable for both parties. Further, while I am not insensitive to the effect of this decision on the tenants, Apollo is entitled to expect the court to weigh the interests of both parties when determining a just and fair result.
[32] For the following reasons, the adjournment request is denied and I find that the tenants’ appeal of the Board’s April 30, 2019 order is devoid of merit and a “proper case” to be quashed under s. 134(3) of the Courts of Justice Act:
• The consent order of November 20, 2018 has not been appealed or set aside; it remains operative. The tenants had agreed to all of the terms of this order. The tenants then breached a term one week later when they failed to pay $2,692.27 on or before November 26, 2018. Another term of the order was that if the tenants breached any of the payment terms of the order, the outstanding amount they owed to Apollo would be due immediately and Apollo would then be entitled to move without notice for an order terminating the tenancy and evicting the tenants.
• During the April 16, 2019 hearing, Ms. Jocich had admitted: (a) that there was a November 20, 2018 consent order; (b) that on November 20 the tenants had consented to making the payments in the November 20, 2018 order, including the $2,692.27 payment before November 26, 2018; (c) that she understood that she was obliged to pay the $2,692.27 in guaranteed funds; (d) that she understood that agreeing to a consent order was a serious undertaking; and (e) that she did not have enough money available to pay the amount the tenants had agreed to pay.
• When the tenants agreed to the terms of the consent order of November 20, 2018, they owed Apollo $4,534.27.
• The tenants now owe Apollo $10,863.90.
• The tenants confirmed that their combined monthly income is $1,274.00, as stated on a fee waiver request form they submitted to the registrar of the court at the time they filed their notice of appeal.
• I am not satisfied that the tenants’ notice of appeal raises a “question of law” as required by s. 210(1) of the RTA for a party to appeal a Board decision. (“Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal test.” (Canada (Director of Investigation & Research) v. Southam Inc. [1997] 1 S/C/R/ 748 at para. 35.))
• In their notice of appeal, the tenants allege that the Board member who heard the appeal was biased and acted in bad faith and that Ms. Jocich has a disability the Board member failed to accommodate. These grounds of appeal are not supported by the transcript of the April 16 2019 hearing.
• If I am wrong, and the tenants have a right of appeal, even a successful appeal of the Board’s April 30, 2019 decision would not improve the tenants’ position. A successful appeal of the April 30, 2019 order would effectively rewind the court proceedings to the date of the November 20, 2018, order but would have no effect on the November 20 2018 order. It is not in dispute that the tenants had breached that order by November 26, 2018 when they failed to pay Apollo $2,692.27. The tenants now owe Apollo more than $6,000.00 more than they did at the time they agreed to that order. The tenants are unable to pay their debt to Apollo. Even if they were able to pay the entire amount they owe to Apollo, doing so would not affect Apollo’s right under the November 20, 2018 order to apply, without notice, to terminate their tenancy and to evict the tenants.
[33] Apollo’s lawyer submitted that the tenants have lived in the apartment for many years and do not want to move but that, based on their current income, it is evident that they can no longer afford to live there. This certainly appears to be the case, given their monthly income of $1,274.00 and the current monthly rent of $963.00.
[34] The tenants had consented to an order in November 20, 2018 to ward off the termination of their tenancy, only to breach the order less than one week later. Apollo has been handcuffed by legal proceedings ever since. In April, 2019, Ms. Jocich admitted that she did not have the money the tenants had promised to pay Apollo in November. Although the tenants told me that they needed more time in order to obtain legal assistance, they had managed to file a notice of appeal of the April 30, 2019 decision, a certificate of evidence and certification that the Board’s decision would be stayed pending the hearing of the appeal. They had also managed to order the transcript of the April 30, 2019 hearing, which they received on July 8, 2019. Further, as I noted above, one of the arguments raised by Mr. Hough before me was that the outcome of the tenants’ appeal should be decided not by a single judge of this court but by several judges. In doing so, he raised a jurisdictional issue that I had considered myself prior to the hearing of the motion but which Apollo did not raise in either its written materials or its oral submissions. I am satisfied that, as a judge of the Divisional Court, I have jurisdiction under s. 21(3) of the Courts of Justice Act to hear a motion under s. 134(3) of the Act. That Mr. Hough raised this issue suggests to me either that he had the input of a legal professional before making his submissions or that he was capable of responding to Apollo’s motion without the assistance of a lawyer.
[35] For these reasons, I find that the tenants’ appeal is without merit and that it would be both unfair to Apollo and futile to grant the tenants’ request for an adjournment of Apollo’s motion to quash the appeal.
Conclusion
[36] In conclusion, I make the orders:
• The tenants’ appeal shall be quashed under s. 134(3) of the Courts of Justice Act;
• The stay of the Board’s order of April 30, 2019 is lifted;
• The Court Enforcement Office (the Sheriff) shall enforce the April 30, 2019 and January 22, 2019 orders of the Board;
• The tenants shall pay all unpaid rent to the date they vacate the apartment.
[37] If Apollo is unable to obtain the tenants’ approval of a draft order within a reasonable period of time, it may forward its order to me, care of the trial coordinator, with evidence of its efforts to obtain the tenants’ approval.
Costs
[38] In these circumstances, I am not inclined to award costs.
[39] I note that Apollo did not file a costs outline under Rule 57.01(6).
[40] If, however, Apollo wishes me to consider the issue of costs, it may deliver written submissions of no more than three pages in length within 14 days of the date of this decision. The tenants may then deliver written submissions in response of no more than three pages in length within 14 days of the date of receipt of Apollo’s submissions. Apollo may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the tenants’ submissions.
[41] The costs submissions may be filed by sending them to me, care of the trial coordinator.
Date: October 15, 2019
Madam Justice H. J. Williams
CITATION: Jocich and Hough v. Apollo, 2019 ONSC 5954
COURT FILE NO.: 19-DC-2489
DATE: 2019/10/15
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
Tanya Jocich Appellant
-and-
Howard Hough Appellant
-and-
Apollo Property Management Limited Respondent
BEFORE: Madam Justice H.J. Williams
COUNSEL:
Ronald S. Petersen, Counsel for Apollo Property Management Limited
Endorsement
Madam Justice H. J. Williams
[^1]: No appeal lies without leave of the court from an order made with the consent of the parties. (Courts of Justice Act, s. 133(a).)