CITATION: Albert v. Century 21 John Devries Ltd., 2019 ONSC 6206
COURT FILE NO.: DC-19-2496
DATE: 20191029
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Crystal Albert and Penny Albert, Appellants on Appeal, Tenants
– and –
Century 21 John Devries Ltd., Respondent on Appeal, Landlord
Self-represented, for the Appellant Tenants
S.D. Lyman, for the Respondent Landlord
HEARD: October 4, 2019 (at Ottawa)
REASONS FOR JUDGMENT
Kane j.
[1] The respondent landlord (the “Landlord”) pursuant to s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) seeks:
(a) an order quashing the appeal of the appellant tenants (the “Tenants”) of the decisions of the Landlord and Tenant Board (“LTB”):
(i) dated February 26, 2019, which terminated their lease and ordered their eviction (the “Termination and Eviction Decision”); and
(ii) the review decision of the LTB dated May 14, 2019 (the “Review Decision”) which confirmed the Termination and Eviction Decision to terminate the lease and evict the plaintiffs from their residence due to their substantial interference with the lawful rights and interest of the Landlord in relation to that leased property;
(b) in the alternative, an order pursuant to R. 63.01 (5), RRO. 1990, Reg.194., lifting the automatic stay under R. 63.01 (5) resulting from the Tenants’ appeal of the Termination and Eviction Decision unless the Tenants pay all rent arrears and the ongoing rent pending the hearing of their appeal; and
(c) costs of this motion.
Background
[2] The Tenants leased and have resided in this condominium townhouse since 2014. They paid the last month’s rent in advance and paid their monthly rent as due up to and including February 2019. The Termination and Eviction Decision was not sought or granted due to arrears of rent which was fully paid at that point. Rent arrears subsequent to February 2019 is the subject of a subsequent second proceeding to the LTB by the Landlord to terminate and evict the plaintiffs (the “Second Proceeding”).
[3] The Tenants stopped paying rent due to the Landlord’s failure to engage qualified contractors to repair water leaking into their basement which had continued for some three years prior to September 2018 and has not yet been repaired.
[4] The Tenants noted the water penetration into their basement, believed that mold had developed as a result and reported those concerns on September 26, 2018 to the Landlord’s Century 21’s property manager and a Century 21 rental clerk/handyman who both attended inside the rental home on that date to do other work but who examined and touched the wall and floor carpet area on that occasion where water was entering the home and were then in a position to report the same to the Landlord in order to schedule and carry out the necessary repairs.
[5] That rental clerk/handyman returned on September 27, 2018, entered the home and replaced a furnace filter on September 27, 2018.
[6] As is commonly known in cases involving residential condominium units, the Tenants’ evidence is that the interior versus the exterior elements of this unit are owned by the Landlord and a condominium corporation, respectively.
[7] The fact this residence was part of a condominium is relevant to issues that were before the LTB and led to the two orders now appealed, including whether the Landlord or the condominium corporation were responsible to repair the water leaking into the house and the Termination and Eviction Decision which is based on the Tenants’ alleged refusal to grant entry to the Landlord.
[8] Subject to the responsibility of the condominium corporation, the Landlord has failed since September 26, 2018 to schedule and carry out the necessary repairs.
[9] The Landlord wishes to sell the unit and its focus appears to be to:
(a) evict the Tenants and thereby increase the unit’s sale potential; and
(b) clean the basement carpet for the pending sale and leave the repair issue for someone else.
Grounds of Appeal
[10] The grounds of appeal of the Termination and Eviction Decision and the Review Decision are that:
(a) the LTB Members erred in granting the order to evict the Tenants as contained in the Termination and Eviction Decision and the Review Decision since there was no basis in law to so order;
(b) such Members erred in not allowing the complete evidence of the Tenants;
(c) the Members erred in failing to enforce the Landlord’s obligations to the Tenants; and
(d) it would be unfair to evict the Tenants.
[11] The evidence in the LTB February 20, 2018 hearing was that the Tenants are Ms. P. Albert who receives income through Ontario Works, and her daughter Ms. C. Albert who has special needs and lives there with the grand-daughter who also has special needs.
[12] The Tenants allege that:
(a) they were denied a fair hearing by the LTB hearing Member, Ms. Crocco, on February 20, 2019;
(b) that Member Crocco in conducting the February 20, 2019 hearing, failed to utilize and make available the mediation opportunities pursuant to s. 194 of the Residential Tenancy Act, 2006, S.O. 2006, c. 17 (the “RTA”);
(c) Member Crocco and Vice-Chair Charron failed or refused to consider the Landlord’s lengthy failure to maintain the residence in a good state of repair and fit for habitation, as required by s. 20(1) of the RTA;
(d) Member Crocco and Vice-Chair Charron in their findings failed to ascertain the real substance of all activities related to the rental unit and the good faith of the participants as required by s. 202(1) of the RTA;
(e) Member Crocco on February 20, 2019, refused the Tenants’ request to submit and consider the Tenants’ written evidence and argument, thereby denying their opportunity to a fair hearing; and
(f) Member Crocco on February 20, 2019 repeatedly interrupted the Tenants’ attempts to present the Tenants’ case and thereby denied them a fair hearing.
[13] The Tenants were self-represented on this motion. Ms. P. Albert had little to say during argument which is not surprising given the complexity of the issues but urged the court, as required, to review her lengthy filed documentation. The Tenants’ written submissions are lengthy and, as can be expected, are not as concise as one would expect from legal counsel. The Tenants’ written materials contain relevant information as to the LTB hearings and the issues on this motion.
Analysis
[14] The Tenants’ appeal of the Termination and Eviction Decision and the Review Decision stays their lease termination and their eviction until determination of their appeal, unless otherwise ordered by a judge of Divisional Court on just terms: R. 63.01 (3) and (5).
[15] A single judge of the Divisional Court may on appropriate grounds quash an appeal to that court: Sections 21 (3) and 134(3) of the CJA.
[16] A decision of the LTB may only be appealed on a question of law to the Divisional Court: S. 210(1) of the RTA.
Termination and Eviction Decision
[17] The Landlord sought and obtained the Termination and Eviction Decision at a brief LTB hearing held on February 20, 2019. The transcript of that hearing, including the decision to terminate the lease and evict the Tenants, is 21 pages.
[18] The Tenants were self-represented at the February 20, 2019 Termination and Eviction hearing.
[19] Member Crocco at that February 20, 2018 hearing indicated that the issues to be determined were as contained in the Landlord’s application for termination and eviction, namely whether the Tenants’ denied lawful and reasonable right of entry to the Landlord on October 5, November 2 and 14, 2018.
[20] The Landlord also relied upon an alleged refusal of entry by the Tenants on November 15, 2018, namely to allow a contractor for the condominium corporation to enter the unit to inspect the smoke detectors, which the Landlord had entered and inspected on September 26, 2018, however Member Crocco dismissed this as a denial of entry.
[21] The LTB undoubtedly conducts many landlord and tenant hearings. As to such hearings, s.183 of the RTA states:
Expeditious procedures
183 The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter. 2006, c. 17, s. 183. (emphasis added)
[22] While s. 183(3) of the RTA:
(a) provides that LTB Hearings are to be expeditious;
(b) it confirms the legal requirement to provide a fair hearing to each party;
(c) is not authority to ignore the legal requirements as to remedies sought; and
(d) requires that each party have an “adequate opportunity” “to be heard” and present their case.
[23] Termination and eviction from one’s residence is a final and serious remedy.
[24] Whether or not a party was afforded the above hearing rights is a question of law, to be determined upon what occurred in the hearing.
[25] Member Crocco began the Eviction and Termination Hearing by noting that whether the Tenants failed to grant entry to the Landlord, upon which termination of the lease and eviction was sought, requires determination that the Landlord served the Tenants with prior notice to enter. The applicable RTA provisions as to prior notice are sections 25 to 27 of the RTA, the relevant portions of which state:
Privacy
25 A landlord may enter a rental unit only in accordance with section 26 or 27. 2006, c. 17, s. 25.
Entry without notice
Entry without notice, emergency, consent
26 (1) A landlord may enter a rental unit at any time without written notice,
(a) in cases of emergency; or
(b) if the tenant consents to the entry at the time of entry. 2006, c. 17, s. 26 (1).
Entry with notice
27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
To carry out a repair or replacement or do work in the rental unit.
To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
To carry out an inspection of the rental unit, if,
i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
ii. it is reasonable to carry out the inspection.
Contents of notice
(3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 27 (3). (emphasis added)
[26] Member Crocco proceeded in the hearing on the basis that a prior s. 27 written notice was required from the Landlord on October 5 and November 2 and 14, 2018 when entry was allegedly denied.
[27] Member Crocco properly identified this preliminary issue as to prior and appropriate written notice, as a pre-condition regarding the alleged failures to allow entry and the Landlord’s entitlement to orders to terminate and evict.
[28] Despite articulating that prior notice requirement, Member Crocco in the hearing failed to articulate her determination as to whether the required notices were served on the Tenants 24 hours before entry and the adequacy of the information in such notices for the three alleged entry denials by the Tenants. The Tenants disputed service of and the contents of such notices. Member Crocco also failed to articulate that requirement and its determination in the Termination and Eviction Decision. Whether Member Crocco failed to determine the fact of and the adequacy of a pre-condition to granting the remedies of termination and eviction is a question of law.
[29] The Termination and Eviction Decision states that the Tenants acknowledged during that hearing that they had denied entry to the Landlord or its representatives on the three occasions in issue. Refusal of entry is a fundamental requirement prior as to granting an order of lease termination and eviction.
[30] Contrary to the above statement in the decision of Member Crocco, the transcript indicates the Tenants did not in their evidence acknowledge that they had denied entry:
(a) to the Insurance adjuster on October 5, 2018. The Tenants testified the adjuster agreed that Ms. Albert was not required to provide entry to him and he then left the premises. Ms. Devries was not present during this discussion. The Landlord did not call the adjuster to testify; or
(b) to the Landlord’s Century 21 rental agent/handyman and Mr. Armstrong on November 2, 2018. Century 21’s Ms. Devries and the same rental clerk/handyman had already entered, inspected and touched the water penetration area on September 26, 2018. The Tenants testified that the rental clerk/handyman on November 2 agreed with her that a contractor to repair the leak, was what was required as opposed to another inspection by him.
[31] As to the November 14, 2018 contractor seeking to mark utility lines outside the unit, Member Crocco during the hearing and in her decision does not address the legal issue as to whether denying permission to a condominium corporation contractor constitutes denial to the Landlord pursuant to the RTA, which is a question of law under the Land Titles Act (“LTA”).
[32] The Tenant in answering questions from Member Crocco, attempted to give evidence as to the Landlord’s original inspection inside the unit of the water entry point by Ms. Devries and the rental agent/handyman from Century 21 on September 26, 2018. Member Crocco interrupted and prevented that evidence being given. Member Crocco stated the September 26 and 27 inspection evidence was irrelevant on the application to terminate and evict, as what was before her was not an application to terminate for non-payment of rent. Member Crocco did not provide an authority for that position but was presumably referring to s. 82 of the RTA which states:
Tenant issues in application for non-payment of rent
82 (1) At a hearing of an application by a landlord under section 69 for an order terminating a tenancy and evicting a tenant based on a notice of termination under section 59, (non-payment of rent) the Board shall permit the tenant to raise any issue that could be the subject of an application made by the tenant under this Act. 2006, c. 17, s. 82 (1).
Orders
(2) If a tenant raises an issue under subsection (1), the Board may make any order in respect of the issue that it could have made had the tenant made an application under this Act. 2006, c. 17, s. 82 (2). (emphasis added)
[33] S. 82 does not prohibit the right of a tenant to fully defend and present evidence and argument in response to an application to terminate and evict, as required under s. 183 as noted above.
[34] Member Crocco in addition, had allowed the Landlord in this hearing to lead evidence as to its inspection carried out on September 26, 2018 and then prevented the Tenant to testify about the same matter.
[35] Member Crocco in preventing and disregarding the Tenants’ attempt to state what had occurred on September 26, 2018 in this hearing relates to whether the Tenants were afforded a fair hearing, which is a question of law.
[36] Towards the end of the hearing (p.16-21), the Tenant asked to submit written documents of evidence and/or submissions to Member Crocco. Member Crocco rejected that request stating she was not an “Investigator” and that she was unwilling to review voluminous documents which “might be irrelevant.” Relevancy could not be determined until the hearing officer read the documentation which she refused to do.
[37] The Tenant then asked if she could read the documents or parts thereof to Member Crocco. Member Crocco told the Tenant to stop interrupting and refused their request to read any of the documentation they wished to introduce as evidence.
[38] Member Crocco then told the Tenants they had the right to bring an application against the Landlord however their complaints were not relevant as to her narrowly defined issues, namely whether the Tenants denied entry to the Landlord on the three above dates.
[39] As to findings to be made by the LTB at this hearing, s 202(1) of the RTA states:
Findings of Board
202 (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit. 2006, c. 17, s. 202. (emphasis added)
[40] The issues before Member Crocco were not simply whether the tenants refused entry. The issues included:
(a) whether appropriate prior notice was served; and
(b) all relevant circumstances as to the issue whether to grant the serious remedy of eviction pursuant to s. 83 of the RTA, which states:
Power of Board, eviction
83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).
Mandatory review
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). 2006, c. 17, s. 83 (2).
Circumstances where refusal required
(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement. (emphasis added)
[41] The Tenants were trying to introduce evidence that:
(a) two representatives of the Century 21 were informed about and conducted an examination of the alleged water penetration site inside the unit on September 26, 2018;
(b) one of them re-attended inside the unit on September 27, 2018;
(c) the Landlord had been informed repeatedly about the water penetration, had inspected the entry point but continued to seek entry to continue to inspect but not to repair;
(d) the Landlord failed to engage a qualified contractor to undertake the repair work between September 2018 and February 2019;
(e) that failure constituted a breach of the Landlord’s s. 20 obligation to repair; and
(f) it was accordingly unjust to then grant the remedy of eviction.
[42] All of the above points are “relevant circumstances” as to the elements to be considered under s. 83, including a breach of responsibility by the Landlord, in determining whether eviction was an appropriate remedy. Member Crocco prevented the Tenants from introducing this evidence contrary to their rights under s. 183.
[43] Member Crocco ultimately stated she would accept the Tenants’ documentation “to put on file”. The Tenants responded they wished to discuss the documentation contents and not simply file it. The documentation was not then discussed or filed as Member Crocco then stated, “We’re not getting into that right now,” announced her decision would be mailed to the parties and then terminated the hearing.
[44] The unwillingness of Member Crocco to permit the introduction of and to consider this evidence and the impact thereof on the validity of her decision to evict:
(a) involves a question of law; and
(b) indicate a palpable and overriding errors: Rizzi v. Roberts, 2007 CarswellOnt 1889 (Div. Ct.) para. 7.
[45] Member Crocco in her decision as to s. 83 of the RTA cites the competing interests of the parties and, without analysis, simply elects the interest of the Landlord as determinative.
[46] The Termination and Eviction Decision does not state under what section of the RTA such termination and eviction orders are granted.
[47] The obligation to pay rent, to permit entry, to give prior notice as to entry and to repair are separate obligations under the RTA. Member Crocco prohibited evidence as to the need and failure to repair and in deciding to grant the ultimate remedy of eviction, failed to determine the adequacy of prior notice and to consider “all circumstances” under s. 83 in granting the ultimate remedy of eviction. These are questions of law.
[48] Although not relevant to this decision, the court notes that Member Crocco in deciding the Second Proceeding on September 6, 2019, again rejects to hear and determine the Tenants’ cross application, once again prioritizing the Landlord’s rights over those of the Tenant.
Review Decision
[49] The Tenants sought and obtained the LTB’s review of the Termination and Eviction Decision.
[50] The LTB conducted a review hearing and confirmed Member Crocco’s February 26, 2019 Termination and Eviction Decision.
[51] The provisions as to such a review hearing are contained in s. 209 of the RTA which states:
Order final, binding
209 (1) Except where this Act provides otherwise, and subject to section 21.2 of the Statutory Powers Procedure Act, an order of the Board is final and binding. 2006, c. 17, s. 209 (1).
Power to review
(2) Without limiting the generality of section 21.2 of the Statutory Powers Procedure Act, the Board’s power to review a decision or order under that section may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding. 2006, c. 17, s. 209 (2). (emphasis added)
[52] The Review Decision in deciding to confirm the Termination and Eviction Decision:
(a) despite the requirements of s. 83 to “consider all circumstances,” adopts Member Crocco’s limitation that the sole issue before the LTB in the first hearing was whether the Tenants denied entry on October 5 and November 2 and 14, 2018;
(b) relies upon anticipated future refusals by the Tenants to grant access if the Landlord lists the property for sale and cites the Tenants’ subsequent non-payment of rent contrary to an interim order adjourning the Review hearing; and
(c) does not consider or pronounce upon a number of the above legal issues regarding the Termination and Eviction Decision such as the adequacy of prior notice.
[53] Vice-Chair Charron concludes that “there was no serious error in the original order, as the hearing Member made reasonable determinations on the basis of the evidence submitted …” (emphasis added).
[54] The “evidence submitted” omits the evidence by Member Crocco refused to permit the Tenants to introduce relevant to the eviction determination under s. 83.
[55] Vice-Chair Charron omits to identify what are the errors in the Termination and Eviction Decision she acknowledged and the impact thereof as to whether eviction was an appropriate remedy.
[56] The questions of law as to the Review Decision include the unaddressed legal issues as to the Termination and Review Decision, including:
(a) the adequacy of notice by the Landlord;
(b) determination of the elements under s. 83 as to whether eviction is an appropriate remedy; and
(c) whether the LTB in a s. 209 review hearing has jurisdiction to rely upon anticipated future events subsequent to the decision being reviewed.
Conclusion
[57] The Tenants’ Notice of Appeal raises questions of law as to the Termination and Eviction Decision and the Review Decision for the above reasons.
[58] To the extent the issues raised involved questions of mixed fact and law, the nature of the errors in the two LTB decisions are palpable and overriding.
[59] The Landlord’s motion to strike this appeal of the two LTB orders is accordingly dismissed.
[60] The Landlord’s failure to repair may result in the tenants’ entitlement to damages or costs but does not relieve the Tenants from their obligation to continue to pay rent.
[61] The R. 63.01(5) stay resulting from this appeal shall continue until December 31, 2019.
[62] The Tenants must by December 31, 2019, pay the monthly rent to the Landlord for the months of March to December 2019; failing which the stay resulting from this appeal of the Termination and Eviction and the Review Decisions shall be lifted on December 31.
[63] If the Tenants pay such rent by December 31, 2019 for the months March to December 2019 to the Landlord, the stay against termination and eviction shall remain and continue until argument and decision of their appeal.
[64] The Landlord by November 30, 2019 shall serve the Tenants with written notice:
(a) acknowledging or denying water was leaking into the basement, and if yes;
(b) providing a full description of what repairs are to be carried to stop such water penetration;
(c) the name of the company to conduct such repairs; and
(d) the commencement and estimated completion date of such repairs.
Costs
[65] Either party seeking costs of this motion shall submit concise written argument indicating why they believe they are entitled to costs, what costs and the amount thereof they are seeking within 30 days from the date of this decision.
[66] The party against whom costs are requested shall provide concise written submissions in response within 20 days after they are served with the written submission of the other party seeking costs.
Mr. Justice Paul Kane
Released: October 29, 2019
CITATION: Albert v. Century 21 John Devries Ltd., 2019 ONSC 6206
COURT FILE NO.: DC-19-2496
DATE: 20191029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Crystal Albert and Penny Albert, Tenants
Appellants on Appeal
– and –
Century 21 John Devries Ltd., Landlord
Respondent on appeal
REASONS FOR JUDGMENT
Kane J.
Date of Release: October 29, 2019