CITATION: Lysak v. Atkinson, 2020 ONSC 1076
DIVISIONAL COURT FILE NO.: 659/19 DATE: 20200219
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
GORD LYSAK
Landlord
(Respondent)
– and –
ZOE LORRAINE ATKINSON
Tenant
(Appellant)
David S. Strashin
for the Landlord
Zoe Lorraine Atkinson
representing herself
HEARD at Toronto: February 14, 2020
FAVREAU J.:
Introduction
[1] Zoe Lorraine Atkinson seeks to appeal the Landlord and Tenant Board's order terminating her tenancy.
[2] On this motion, Ms. Atkinson asks for an order extending the time for perfecting her appeal. The respondent, Gord Lysak, brings a cross-motion to quash the appeal on the basis that it is devoid of merit.
[3] On September 3, 2019, the Board made an order terminating the tenancy for non-payment of rent and based on a finding that Ms. Atkinson caused undue damage to the apartment. On November 25, 2019, the Board dismissed Ms. Atkinson's request for a review.
[4] Ms. Atkinson served a notice of appeal on December 3, 2019. The primary ground of appeal advanced by Ms. Atkinson is that the Board failed to accommodate her disabilities at the original hearing and that she was therefore not able to participate in the hearing.
[5] For the reasons below, Mr. Lysak's motion is dismissed and Ms. Atkinson's motion to extend the time to perfect her appeal is granted on terms, including a requirement that Ms. Atkinson pay all outstanding rent and ongoing rent.
Decision of the Board and review decision
[6] The original hearing before the Board took place on August 28, 2019. Only Mr. Lysak attended the hearing. Ms. Atkinson did not attend the hearing. Two days before the hearing, Ms. Atkinson requested an adjournment, which was denied. On the day before the hearing, Ms. Atkinson asked to participate in the hearing by telephone but the Board did not receive or respond to this request.
[7] In an order dated September 3, 2019, the Board found that Ms. Atkinson had not paid the total rent she owed from June 1, 2019 to August 31, 2019, and that she owed Mr. Lysak an additional $200 because she had “caused undue damage to the residential complex by writing on the walls with lipstick". The Board went on to find that this was not an appropriate case for relief from eviction pursuant to section 83(2) of the Residential Tenancies Act, 2006, S.O. 2006, c.6, because Ms. Atkinson did not have sources of income that would allow her to enter into a payment plan for the outstanding amounts and because she had "interfered with the reasonable enjoyment of other tenants by yelling and screaming at the tenants and their guests and posting abusive notes". On this basis, the Board terminated the tenancy as of September 14, 2019, and required that Ms. Atkinson pay the outstanding rent and $200 for damage to the property.
[8] Ms. Atkinson requested a review of the Board's order. The Board granted an interim stay of the eviction pending the review hearing.
[9] The request for a review was heard on October 29, 2019. The Board dismissed the request in a decision dated November 25, 2019. The Board found that there were no serious errors in the original order or proceedings. In reaching this conclusion, the Board focused on Ms. Atkinson's argument that the Board had failed to accommodate her disabilities by not granting her request for an adjournment and then her request to participate in the hearing by telephone.
[10] With respect to the request for an adjournment, Ms. Atkinson had asked for an adjournment two days before the hearing on the basis that she was severely disabled, that she hoped to get the assistance of a legal clinic and that she was trying to get the name of a tenant in the basement of the building to summons as a witness. The Board rejected the adjournment request on the basis that the Board’s procedures provide that adjournments in advance of a hearing are only granted on consent. Otherwise, Ms. Atkinson would have to request the adjournment at the hearing. In its review decision, the Board found that rejecting Ms. Atkinson’s request for an adjournment was therefore consistent with the Board's procedures. The Board also found that, had Ms. Atkinson attended the hearing or sent someone in her place, the adjournment would likely not have been granted because she did not provide sufficient evidence to support her request, including medical documentation supporting the claim that she is disabled.
[11] With respect to Ms. Atkinson's request to participate in the hearing by telephone, the Board found that it "appears that the Tenant's email did not reach the Member who presided over the August 28th hearing before the hearing was held and no decision was ever made regarding this request". Despite this finding, the Board went on to find that, even if the request had come to the attention of the Board member who conducted the original hearing, it likely would have been denied because Ms. Atkinson had not provided any medical documentation in support of her request to participate in the hearing by telephone.
[12] The Board went on to dismiss Ms. Atkinson's review request, confirmed the Board's order of October 3, 2019, and lifted the interim stay.
[13] Ms. Atkinson commenced an appeal to the Divisional Court on December 3, 2019. The primary grounds advanced on the appeal are that the Board failed to accommodate her disabilities and improperly required that she provide medical evidence in support of her request for accommodation.
[14] To date, Ms. Atkinson has not perfected her appeal.
Motion to dismiss the appeal as manifestly devoid of merit
[15] I will deal first with Mr. Lysak's motion to quash the appeal given that it may dispose of the appeal regardless of the merits of Ms. Atkinson's motion to extend the time for perfecting her appeal.
[16] Section 134(3) of the Courts of Justice Act, R.S.O 1990, c. C.43, gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal".
[17] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.
[18] Mr. Lysak's lawyer argues that Ms. Atkinson's appeal is manifestly devoid of merit because it does not raise a question of law. I disagree.
[19] The issue raised on this appeal is a matter of procedural fairness. The content of procedural fairness in any given case is a question of law: Ali v. Canada (Minister of Citizenship and Immigration), 2010 FC 794, at para. 29.
[20] The Board member who made the original order evicting Ms. Atkinson made significant findings against her. He found that she caused $200 in damages by writing with lipstick on the walls, that she had insufficient funds to pay three months of outstanding rent and that she was abusive to other tenants. Based on these findings, the Board decided not to give Ms. Atkinson a chance to pay her outstanding rent, but instead made an eviction order that took effect 10 days later. These findings were made in Ms. Atkinson's absence and have very significant consequences.
[21] In the review decision, the Board made a finding that Ms. Atkinson's request to participate in the original hearing via telephone did not come to the attention of the Board member who conducted the hearing. The Board went on to find that, even if the request had come to the Board member's attention, the request would have been denied because Ms. Atkinson failed to provide supporting medical evidence.
[22] In my view, this raises a potential error of procedural fairness, and I am not prepared to find that the appeal is manifestly devoid of merit. The review order does not fully consider the implications of the finding that Ms. Atkinson's request to participate by telephone did not come to the Board’s attention before the original hearing. If the request had come to the Board's attention, there would have been an opportunity for the Board to advise Ms. Atkinson that her request was denied, which would have given her a chance to attend the hearing or send someone else to attend the hearing on her behalf. Alternatively, the Board could have advised Ms. Atkinson that there was insufficient medical information to support her request to participate by telephone, which would have given her an opportunity to provide additional information if she chose to do so.
[23] It is not for me to decide whether Ms. Atkinson's appeal should be allowed, but only whether it is manifestly devoid of merit. Given the procedural fairness issue raised on the appeal, I do not find the appeal manifestly devoid of merit.
Ms. Atkinson's motion to extend the time to perfect her appeal
[24] In accordance with Sivakova v. Timbercreek Asset Management Inc., 2016 ONSC 3975 (Div. Ct.), at para. 21, the test for determining whether the time to perfect the appeal should be extended is as follows:
a. the length of the delay and the explanation for the delay;
b. prejudice to the respondent;
c. the merits of the appeal; and
d. whether the justice of the case requires it.
Length and explanation for the delay
[25] Mr. Lysak does not take issue with this first criterion. I agree. Ms. Atkinson commenced her appeal on December 3, 2019, and then took steps in early January 2020 to schedule her motion to extend the time to perfect her appeal after being advised that Mr. Lysak intended to bring a motion to quash the appeal.
[26] The additional time Ms. Atkinson requests is 3 to 4 weeks. Her explanation is that she is self-represented and is slowed down by her disabilities. In my view, the additional time requested is reasonable, subject to a requirement that she pay outstanding rent which is addressed below
Prejudice to Mr. Lysak
[27] The prejudice in any further delay to Mr. Lysak is that Ms. Atkinson has not paid a portion of her monthly rent since June 2019.
[28] Mr. Lysak's evidence on the motion is that Ms. Atkinson's rent is $1,119.80 per month. Up until June 2019, the rent was paid directly by two social service agencies. The YMCA pays $622 per month directly to Mr. Lysak. Up until June 2019, the Ontario Disability Support Program ("ODSP") paid $497 per month, also directly to the Mr. Lysak. However, since June 2019, the payments made by ODSP have stopped at Ms. Atkinson's direction.
[29] As of January 31, 2020, the outstanding rent was $3,976. As of today, the outstanding rent would include rent for the month of February in the amount of $497, for a total of $4,473.
[30] At the hearing of these motions, Ms. Atkinson confirmed that she has not paid the outstanding rent, but said that she was withholding rent because of outstanding repairs to the back door of the apartment. However, Ms. Atkinson did not obtain an order from the Board requiring Mr. Lysak to make these repairs or an order abating her rent.
[31] In the absence of an order from the Board, Ms. Atkinson is required to pay the outstanding rent and her ongoing rent.
[32] Accordingly, I find that there will be prejudice to Mr. Lysak if Ms. Atkinson is allowed to pursue her appeal, unless she pays her outstanding and ongoing rent while the hearing of the appeal is pending.
Merits of the appeal
[33] I have already explained above why I find that Ms. Atkinson's proposed appeal has merit.
The justice of the case
[34] Given Ms. Atkinson's relatively short delay in perfecting her appeal and my conclusion on the merits of the appeal, Ms. Atkinson should be given a chance to pursue the appeal. However, given the outstanding rent, she should not be allowed to pursue the appeal unless she pays the amount owed and ongoing rent.
[35] Accordingly, I find that the justice of the case requires that Ms. Atkinson be given a chance to perfect her appeal on condition that she make these payments. The specific terms on which Ms. Atkinson's motion is granted are set out below in the conclusion.
Conclusion
[36] Mr. Lysak's motion is dismissed.
[37] Ms. Atkinson's motion to extend the time to perfect her appeal is granted on the following terms:
a. Ms. Atkinson is to perfect her appeal by no later than March 6, 2020;
b. Ms. Atkinson is to pay all outstanding rent in the amount of $4,473 by no later than February 28, 2020;
c. Ms. Atkinson is to pay her ongoing rent until the appeal is heard;
d. If Ms. Atkinson does not pay her outstanding rent, Mr. Lysak may move without notice before the Registrar on affidavit evidence demonstrating non-compliance and the Registrar shall dismiss the appeal and lift the stay of the order of the Board which may then be enforced; and
e. Ms. Atkinson's approval of the draft order is dispensed with.
[38] Given the mixed success on the motions, there will be no order as to costs.
FAVREAU J.
RELEASED: February 19, 2020
CITATION: Lysak v. Atkinson, 2020 ONSC 1076
DIVISIONAL COURT FILE NO.: 659/19 DATE: 20200219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
GORD LYSAK
Landlord
(Respondent)
– and –
ZOE LORRAINE ATKINSON
Tenant
(Appellant)
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: February 19, 2020