Hasselsjo v. Effort Trust, 2019 ONSC 990

CITATION: Hasselsjo v. Effort Trust, 2019 ONSC 990 DIVISIONAL COURT FILE NO.: DC-18-928 DATE: 20190208

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Songja Hasselsjo, aka Hasseljo Appellant AND: Effort Trust, Respondent

BEFORE: Kiteley, Wilton-Siegel and Myers JJ.

COUNSEL: Songja Hasselsjo, Self-represented Appellant Mark Melchers, for the Respondent

HEARD at Hamilton: February 5, 2019

ENDORSEMENT

BY THE COURT

[1] This is an appeal pursuant to the Residential Tenancies Act (the “Act”) by Songja Hasselsjo (the “Tenant”) from the order of the Landlord and Tenant Board (the “Board”) dated March 28, 2018 in which the Board made an order pursuant to s. 68 terminating the tenancy as of May 31, 2018 and ancillary orders.

BACKGROUND

[2] Effort Trust (the “Landlord”) served the first N5 Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding dated June 9, 2016 which gave notice of intention to end the tenancy effective June 28, 2016. The reason was as follows:

Your behavior or the behaviour of someone visiting or living with you has substantially interfered with another tenant’s or my: Reasonable enjoyment of the residential complex, and/or Lawful rights, privileges, or interests.

[3] According to the N5, the Tenant had 7 days to stop the activities or correct the behaviour described on page 2. In the copy filed at tab 3 of the Appeal Book and Compendium, page 2 is missing. Schedule A is attached and it referred to an incident on May 30, 2016 in which the Tenant (in her wheelchair) and her husband entered the elevator, (the “elevator incident”) and, when another tenant using a walker attempted to enter the elevator, the husband allegedly assaulted him.

[4] In a letter dated November 3, 2016 the agent on behalf of the Landlord advised the Tenant that the N5 Notice served June 9, 2016 contained a fatally flawed error in that it only provided 19 days notice to the termination date, rather than 20 days as required. In that letter the agent indicated that theN5 Notice was rescinded.

[5] In that letter dated November 3, 2016, the agent for the Landlord also provided a new first Form N5 Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding in which the Landlord gave notice of intention to end the tenancy effective November 27, 2016. The reason was as follows:

Your behavior or the behaviour of someone visiting or living with you has substantially interfered with another tenant’s or my: Reasonable enjoyment of the residential complex, and/or Lawful rights, privileges, or interests.

[6] That new first Form N5 is dated November 3, 2016 and indicated that the Tenant had 7 days to stop the activities or correct the behaviour described on page 2 and avoid eviction. The N5 also indicated that if the Tenant did not move out or did not correct the behaviour within 7 days, the Landlord could apply to the Board for an order to evict the Tenant. On page 2, under the heading “Details about the Reasons for this Notice”, the Landlord referred to Schedule A which lists efforts on October 24, 25, 26 and 27, 2016, a letter dated October 21, 2016 and an email dated October 27, all on the subject of the Landlord asking for an opportunity to inspect the Tenant’s apartment for pest infestation. The N5 also indicated that the Landlord requested Entry and Inspection to the unit on November 8, 2016 between 11:30 a.m. and 11:45 a.m. and indicated in bold lettering that if the Tenant refused entry, the Landlord would serve an L2 Application for termination of the tenancy.

[7] On or about May 1, 2017 the Landlord served the second N5 Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding in which the Landlord gave notice of intention to end the tenancy effective May 23, 2017. Again the reason was that the behaviour of the Tenant had substantially interfered with another tenant’s or the Landlord’s reasonable enjoyment of the residential complex, and/or lawful rights, privileges or interests. That N5 indicated that the Landlord could apply to the Board immediately for an order to evict the Tenant because it was the “second Notice to End Tenancy in the past 6 months for a reason with a 7 day correction period”.

[8] On page 2 of the second N5, under “Details about the Reasons for this Notice” the Landlord indicated “see schedule “A” Attached to this notice and Landlord’s document briefs Volume 1 and 2”. There is a 2 page Schedule A attached that refers to the following events:

1. On February 7, 2017, from 9:40 a.m. and 9:44 a.m., you entered front lobby of building complex from the elevator. You then verbally demanded from the landlord’s on-site staff, namely Kim Bourque, that she have two service delivery trucks parked outside the front entrance be immediately removed so you could gain access to your husband’s motor vehicle. (the “delivery truck incident”)

You made such demand, without just cause as you had ample room to forthwith gain access to your motor vehicle. Kim Bourque responded to you that the delivery trucks will complete unloading their materials within 2 minutes. Despite Kim’s response, you then exited the building complex and yelled at the service vehicle drivers, demanding they move their vehicles immediately. Kim Bourque was then forced to exit the building complex, asking you to stop yelling, but you refused and continued to yell at the service vehicle drivers and demanding they move their vehicles immediately. This entire incident was also witnessed by Ryan Di Feo. [The Tenant uses a wheelchair and required access to the vehicle.]

2. Prior to and subsequent to the landlord’s first Form N5 served upon you on November 3, 2016, you agreed to permit access for inspection of your rental unit. During the inspection, conducted by the landlord’s staff and their agents, on various dates and time thereafter, you subsequently engaged in behaviour, conduct and litigation against the landlord, their staff and agents described as follows:

(a) false allegations, abuse of process, frivolous and vexatious; (b) duplication of proceedings in various civil courts and before the Landlord and Tenant Board; (c) refusal to pay costs of $250.00 against you ordered by the Deputy Justice in the Hamilton Small Claims Court on February 13, 2017, for your unreasonable conduct in contesting an adjournment without just cause, resulting in a Stay of the proceedings until such payment was made to landlord; (d) following (c) above, you then filed a Hamilton Superior Court of Justice Statement of Claim two days thereafter, seeking monies for the same allegations as contained in the Small Claims Court Claim against the same defendants; (e) you failed to attend your motion hearing (you were moving party) scheduled in Hamilton Small Claims Court on February 21, 2017, without any just reason or prior notification to the court or the landlord’s/defendants’ paralegal, who did attend the court that day; (f) you refuse to reply to the landlord/defendants’ paralegal’s repeated written requests for you to pay the $250.00 costs owing and/or respond to various requests to file your affidavit of service, as required by the Hamilton Small Claims Court, so the matter may proceed for the Settlement conference; (g) you have engaged in initiating verbal demands with the landlord’s staff, despite repeated requests you cease from such, except in case of a bona fide emergency; (h) you have engaged in many unreasonable and demanding written communications with Tim Kelly, forcing the landlord to incur repeated responses to you; (i) you have refused to seek the necessary inquiries and/or assistance from Hamilton Housing Help Centre to ready your unit.

[9] On May 3, 2017, the Landlord issued the Form L2 Application to End a Tenancy and Evict a Tenant in which the Landlord relied on the termination date of May 23, 2017 indicated in the second N5.

[10] On May 10, 2017, the Tenant issued a Form T2 Application about Tenant Rights.

[11] The hearing of the Form L2 Application and the Form T2 Application was scheduled for October 30, 2017. The Board heard evidence on behalf of the Landlord and allowed the Tenant to call, out of order, three witnesses on her Application, including two physicians and a plumber. The hearing was adjourned to and proceeded on March 23, 2018.

[12] In the Decision (the “Decision”) dated March 28, 2018 the Board noted that the decision related to the Form L2 Application only, because the evidence completed on March 23 pertained to that Application; that the balance of the hearing of the T2 Application was adjourned to another day; and that the Landlord’s request pursuant to Rule A8.2 of the Social Justice Tribunals of Ontario’s Common Rules to declare that the Tenant is a vexatious litigant was not finished because the Tenant had not given evidence or made submissions.

[13] In the Decision, the Board referred to two prior Board applications against the Landlord, one of which the Tenant appealed to the Divisional Court. The Board noted that starting in late 2016, the Landlord had attempted to enter the rental unit for inspections that finally happened in November 2016. The Board noted that, subsequently, the Tenant had filed a Small Claims Court action against the Landlord, two members of the Landlord’s staff, the Landlord’s representative, the pest control contractor, and a member of the pest control contractor’s staff in respect of the inspection. The Board outlined the proceedings in the Small Claims Court and the order made by a Deputy Judge to stay the action. The Tenant had filed an appeal of the stay order to the Divisional Court.

[14] The Board referred to the “elevator incident” in May of 2016[^1] and held that it did not constitute substantial interference with another tenant’s reasonable enjoyment of the residential complex. With respect to the “delivery trucks incident”,[^2] the Board accepted that the Tenant was likely verbally aggressive during the incident, but did not conclude that it substantially interfered with anyone.

[15] However, the Board found as follows:

22. I am satisfied that the Landlord had proven on a balance of probabilities that the Tenant has substantially interfered with its lawful rights and interests by pursuing her aggressive and abusive course of action in response to the Landlord’s attempt to assert its right to inspect the rental unit for pest control purposes.

23. A landlord has various obligations under the Act. Maintenance is one such obligation. Landlords must keep residential complexes and rental units in a good state of repair, as stated by section 20(1) of the Act.

24. In delaying, frustrating and blocking attempts to enter the rental unit, the Tenant is interfering with the Landlord’s ability to fulfill its section 20(1) obligations for the whole residential complex, which is a multi-storey building with dozens, if not hundreds, of residents. This is especially so when the reasons for entry relate to pest control, as an infestation in one unit often spreads outside the unit.

25. What is most concerning is that the Tenant does not merely frustrate and block entry, she has aggressively pursued a campaign of legal harassment against the Landlord and its agents and contractors to further her efforts. Emails entered into evidence show that she even threatens Divisional Court appeals against the Landlord and its agents, even before commencing the first instance proceedings that might end up going further to the Divisional Court.

26. One certainly should not be faulted for pursuing legal avenues. However, it is clear from the nature of the legal proceedings that the Tenant has pursued since the November 2016 inspection, that the Tenant is abusing legal processes for the purpose of deterring anyone that might assist the Landlord with respect to the pest control efforts.

27. The Landlord’s legal representative submitted that the cost of defending these legal proceedings substantially interferes with the Landlord’s interests. However, as I have indicated, the greatest concern is that the Tenant has pursued a campaign of interference with the Landlord’s efforts to fulfill its maintenance obligations. In doing so, she has put other residents at risk of exposure to pests and other hazards that might arise from the rental unit. She has done so for no reasonable purpose, and she has abused legal processes as an extension of that campaign.

28. I have concluded that the Tenant has substantially interfered with the Landlord’s legal rights and interests.

[16] The Board considered s. 83(1) of the Act and the issue of accommodation under the Human Rights Code. The Board held that eviction is “relief of last resort” which was required in this case for these reasons:

32. However, denying eviction would simply prolong the personal campaign that the Tenant is waging against the Landlord in response to its reasonable request to perform pest control in the rental unit. She has pursued her campaign relentlessly, without regard for the reasonableness of the Landlords [sic] intentions, or for the potential impact on her fellow residents.

33. In most circumstances, I would be inclined to deny eviction, subject to an order requiring compliance with reasonable efforts on the part of the Landlord to inspect and treat the rental unit. However, the Tenant has made it clear that there would be no compliance with such an order. She has displayed no inclination to reasonably consider the Landlord’s intentions, or to offer reasonable compromise. She has engaged only in obstruction, insults and litigation. She cannot be accommodated.

[17] The Board then explained the basis for postponing the eviction and imposed costs on account of the Tenant’s behaviour during the hearing. The Board terminated the tenancy as of May 31, 2018; ordered the Tenant to pay $7,042.76 as compensation for use of the unit from May 24, 2017 to March 28, 2018[^3]; ordered the Tenant to pay $26.04 per day for compensation from March 29, 2018 until the Tenant vacated; ordered the Tenant to pay the Landlord $190 for the cost of filing the application; ordered the Tenant to pay $350.00 in costs to the Board with the provision that, if she failed to do so by April 12, 2018, her T2 application would be stayed.

[18] The Tenant asked for a review and, in the Review Order dated April 6, 2018, the request to review was denied.

JURISDICTION

[19] Pursuant to s. 210 of the Act, this appeal is on a question of law only.

STANDARD OF REVIEW

[20] As indicated in First Ontario Realty Corporation v. Deng[^4] the standard of review for Board decisions when it is interpreting its home statute or exercising discretion is reasonableness.

[21] Even if an appeal is restricted to questions of law, a finding of fact in the absence of reliable evidence or a serious misapprehension of the evidence can constitute an error of law: e.g. Manpel v. Greenwin Property Management[^5].

ISSUES

[22] The Appellant raised various issues that we sum up as whether the decision of the Board that the Tenant had substantially interfered with the rights and interests of the Landlord in maintaining the rental building in accordance with s. 20 of the Act was reasonable or whether it constituted an error in law.

[23] The Tenant also raised issues of procedural fairness. In view of the position we take on the main ground of appeal, we need not deal with those issues.

ANALYSIS

[24] The following sections in the Act are relevant:

s. 64(1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. (emphasis added)

(2) A notice of termination under subsection (1) shall, (a) provide a termination date not earlier than the 20th day after the notice is given; (b) set out the grounds for termination; and (c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.

(3)The notice of termination under subsection (1) is void if the tenant, within seven days after receiving the notice, stops the conduct or activity or corrects the omission.

s. 68(1) A landlord may give a tenant notice of termination of the tenancy if, (a) a notice of termination was given to the tenant under section 62, 64, or 67; and (b) more than seven days but less than six months after the notice mentioned in clause (a) was given to the tenant, an activity takes place, conduct occurs or a situation arises that constitutes grounds for a notice of termination under section 60, 61, 62, 64, or 67, other than an activity, conduct or a situation that is described in subsection 61(1) and that involves an illegal act, trade, business or occupation described in clause 61(2)(1).

(2) The notice under this section shall set out the date it is to be effective and that date shall not be earlier than the 14th day after the notice is given.

[25] As mentioned in paragraph 14 above, the Board concluded that neither the “elevator incident” nor the “delivery trucks incident” constituted substantial interference by the Tenant with the reasonable enjoyment of other tenants.

[26] As indicated in paragraphs 22 and 23 of the Decision, the Board concluded that the Tenant had substantially interfered with the lawful rights and interests of the Landlord, and specifically the obligation pursuant to s. 20(1) of the Act to keep the rental units in a good state of repair. The Board did not, however, refer to what constituted “substantial interference with the lawful rights and interests.” Nor were we referred to prior decisions on this issue.

[27] In Parkview Management v. Dehas[^6], the Board held that the tenants had interfered with the lawful right, interest or privilege of the landlord by installing a satellite dish antenna on the exterior of the building. He concluded that “substantial” applied both to the interference and to the right, privilege or interest.

[28] In Morguard Residential v. Peters[^7] the Divisional Court upheld the decision of the Board that, in not keeping the unit in a state of ordinary cleanliness, which was supported by photographs and other evidence, the Board had reasonable grounds for concluding that the Tenant had substantially interfered with a lawful interest of the landlord, namely the landlord’s obligation to comply with section 20 of the Act.

[29] In North Avenue Road Corporation v Travares[^8] the Board found that the impact of the quantity of cigarettes the tenant consumed substantially interfered with another tenant’s reasonable enjoyment of her rental unit and that a “lawful, privilege or interest of the Landlord was substantially interfered with” because of the tenant’s smoking. The Board decided, however, not to exercise its power to evict pursuant to subsection 83(1). The Divisional Court agreed with the Board’s conclusion on substantial interference but held that, in deciding against termination of the tenancy, the Board erred by failing to consider the greater responsibility of the Landlord pursuant to s. 20 which extended beyond the specific complaint. The Divisional Court granted the appeal of the Landlord and sent the matter back to the Board for re-hearing.

[30] In G.G. v J.C.[^9] the Board dealt with a case in which the Landlord had given an N8 Notice (persistent late payment), an N7 Notice (serious impairment of safety) and an N5 Notice (substantial interference). The circumstances giving rise to the N7 and the N5 overlapped and included the tenant interfering with the furnace and the temperature setting in the complex; on one occasion leaving a large amount of debris outside the residential complex that the landlord was forced to clean up; hoarding by the tenant; notice of violation by the Toronto Fire Services that the state of the rental unit was a fire hazard; cockroaches in the unit above the tenant’s unit; and failure of the tenant to prepare his unit for pest control treatment.

[31] The Board held that the fact that an insurance company refused to provide a quote for the Landlord after seeing the amount of “stuff” the tenant had on an exterior balcony and piled up in the kitchen window interfered with the landlord’s financial interest but not to the standard of “substantially” as required by the Act. With respect to the fire hazard and the hoarding and the pest control issue, the Board found that the failure of the tenant to move his belongings around and prepare for treatment constituted a substantial interference with a lawful right, privilege and interest of the landlord but the conduct of the tenant had largely been fixed during the 7 day notice period and the N5 notice was voided. In the end, the Board did not terminate the tenancy but imposed many conditions on his future occupancy.

[32] As these cases demonstrate, the circumstances in which the Board has found a “substantial interference in the rights and interests of the Landlord” are those such as smoking, hoarding that creates a fire hazard, failure to prepare a unit for pest control treatment, and affixing a structure to the exterior of the building.

[33] We are satisfied that the Decision is not reasonable for two reasons.

[34] The first reason arises from the Board’s conclusion that the Tenant’s actions substantially interfered with the Landlord’s “lawful rights and interests”. Based on paragraph 27, it is clear that the substantial interference found by the Board pertained to interference with the Landlord’s obligation to maintain the property in a habitable state. The Board held that the Tenant’s actions “substantially” interfered with those obligations because they had the effect of putting other residents at risk of exposure to pests and other hazards that might arise from the rental unit.

[35] We acknowledge that such circumstances could constitute substantial interference with a Landlord’s rights and interests provided there is evidence of a current need to implement pest control and physical obstruction by the Tenant. However, those were not the circumstances in the present case. Instead, the Tenant complied with the N5 notice to allow inspection and the inspection revealed that there was no pest infestation in her unit. Because she had complied with the N5 notice within 7 days, that notice was void. There was no evidence of any subsequent request to inspect and no allegation of pest infestation in her unit. Furthermore, there was no evidence upon which the Board could find or infer that the Tenant would not in the future admit entry notwithstanding her admittedly annoying actions. In any event, the Landlord retained the legal right of entry. In short, there was no evidence before the Board that could support those findings. In reaching that determination, the Board therefore committed an error in law.

[36] The second reason arises from the Board’s conclusion that the Tenant had substantially interfered with the rights and interests of the Landlord by her litigation conduct. As indicated in paragraph 8 above, the evidence did demonstrate that the Tenant had pursued a confrontational course of action against the Landlord in various ways including initiating a Small Claims Court action for damages arising from the pest control inspection when such damage claims ought to be brought pursuant to the Board pursuant to the Act. Furthermore, when the Small Claims Court action was stayed, the Tenant started a proceeding in the Superior Court for general, specific and exemplary damages caused by the Landlord or his agents or contractors including a claim for extensive dental work that she alleged was caused because of a lack of regular hot water in her unit. The Tenant had also threatened a Divisional Court proceeding.

[37] Based on his findings in paragraph 25, 26, 27, and 32-33, the Member accepted and relied on such allegations without an analysis as to whether any or all of that conduct constituted a “substantial” interference, or whether, similar to the Landlord in G.G. v. J.C., it was in the same category as having been refused a quote for insurance which constituted “interference” but not to the degree of “substantial”. Further, the Board observed in paragraph 26 that “one certainly should not be faulted for pursuing legal avenues” but then the Board did just that by inferring, in the absence of evidence, that the Tenant was “abusing legal processes for the purpose of deterring anyone that might assist the Landlord with respect to the pest control efforts.” There is, however, no evidence that anyone was actually deterred by the Tenant’s actions. Any such interference was purely speculative. In the absence of any analysis as to the degree to which the litigation conduct constituted a “substantial” interference, the Board committed an error in law.

[38] The decision of the Board is fundamentally flawed. The only remedy is to set it aside.

COSTS

[39] The Tenant confirmed that she had consulted pro bono legal counsel but she had not incurred any legal expenses in connection with her preparation for the appeal. She also confirmed that she has a fee waiver. Under the circumstances, we see no reason to make an order that the Landlord pay any costs with respect to this appeal. The Tenant wanted to provide to us a copy of an offer to settle which we declined to receive because we had taken the decision under reserve. Given our finding on this appeal, it is not necessary for us to review any offers to settle.

ORDER TO GO AS FOLLOWS:

[40] The decisions of the Landlord and Tenant Board dated March 28, 2018 and the Review Order dated April 6, 2018 are set aside.

[41] Neither party shall pay or recover costs of this appeal.

Kiteley J.

Wilton-Siegel J.

Myers J.

Date: February 2019

[^1]: Contained in first N5 dated June 9, 2016 subsequently rescinded. [^2]: Contained in second N5. [^3]: Counsel for the Landlord confirmed that the Tenant was not in arrears at the time of the hearing in March 2018 and that the provision in the order was made in error. [^4]: 2022 ONCA 54, paras. 16-22 [^5]: 2005 25636 (Div. Ct.) [^6]: [2001] ORHTD No. 126 [^7]: [2010] O.J. No. 6294 [^8]: 2015 ONSC 6896 [^9]: 2015 LNONLTB 1020