CITATION: Stirling v. 399527 Ontario Ltd., 2020 ONSC 1098
DIVISIONAL COURT FILE NO.: 210/19 DATE: 20200220
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
JOHN E. STIRLING Appellant
– and –
399527 ONTARIO LTD., A.K.A. ASSOCIATION ARGOLIDOS "DANAOS" Respondent
Caryma Sa'd for the Appellant
Timothy Duggan for the Respondent
HEARD at Toronto: January 29, 2020
FAVREAU J.:
Introduction
[1] 399567 Ontario Ltd., a.k.a. Association Argolidos "Danaos" (the "Association") brings a motion to quash an appeal commenced by John E. Stirling from a decision of the Landlord and Tenant Board (the "Board"), on the basis that it is manifestly devoid of merit and that it is an abuse of process. Alternatively, the Association seeks an order requiring Mr. Stirling to pay outstanding rent of over $20,000 before the appeal can proceed.
[2] For the reasons that follow, the motion to quash the appeal is granted.
Background
[3] The tenancy is in a building located at 1279 Danforth Avenue, Toronto. The rental unit is located above a commercial space.
[4] The Landlord owns the whole building and is a not-for-profit corporation.
[5] Mr. Stirling has lived in the upstairs unit since 1999. His current monthly rent is $1,200.
[6] Up until 2018, the Association used the downstairs commercial space for its own purposes. However, in 2018, the Association rented the ground floor commercial space to a licensed bar that Mr. Stirling describes as a “hooka lounge”.
[7] In February of 2018, the Association also applied to the Board to end the tenancy because it intended to start using Mr. Stirling's unit for its own nonresidential purposes. Around the same time, Mr. Stirling commenced an application to the Board on the basis that the Association harassed, coerced, obstructed, threatened and substantially interfered with his enjoyment of the property.
[8] In a decision released on July 31, 2018, the Board found that the Association established that it intended to convert the rental unit for its own non-residential use. The Board also dismissed Mr. Stirling's application, and ordered that Mr. Stirling move out by October 31, 2018.
[9] Mr. Stirling requested a review of the Board's order on the grounds that the Board had failed to consider subsections 83(3)(a), (b) and (c) of the Residential Tenancies Act, 2006, S.O. 2006, c.6.
[10] At a hearing held over four days in 2018, the Board granted Mr. Stirling's request for review and proceeded to consider the Association's application to end the tenancy and Mr. Stirling's application afresh.
[11] In a decision released March 15, 2019, the Board granted the Association's application to end the tenancy and ordered that Mr. Stirling vacate the rental unit by April 30, 2019. The Board also required Mr. Stirling to pay outstanding rent of $10,323.72 to be set off against a rent abatement of $3,360.00 for a total of $6,723.72. The Board based its order on the following determinations:
a. The Board rejected an argument made by Mr. Stirling that there was a reasonable apprehension of bias because the same adjudicator conducted the review and the re-hearing. In rejecting this argument, the Board emphasized that "mere suspicion" is not sufficient to raise a reasonable apprehension of bias and that, given the frequency of cases reviewed by the Board, "it is most expedient for the Board to continue the hearing of these matters together, without the time and effort of rehearing all the evidence before another member".
b. The Board accepted the Association's evidence that, due to financial pressures, it was required to rent out the ground floor of the building to commercial tenants and to move its own operations upstairs to Mr. Stirling's unit. On this basis, the Board found the Association "has established their intention to convert the rental unit to non-residential purposes, for the use of the Association's membership".
c. The Board found that none of the circumstances referred to in subsections 83(3)(a), (b) or (c) applied. The Board rejected Mr. Stirling's arguments that the noise and fumes from the commercial space constituted a "serious breach" of his tenancy. The Board also found that the Association did not seek to end the tenancy because of Mr. Stirling's complaints to the municipal authorities about the bar or because Mr. Stirling rejected an unlawfully high rent increase.
d. Finally, the Board found that, while the noise and fumes from the downstairs business did not raise to the level of being a "serious breach" of the tenancy, there was "excessive noise and fumes coming from the commercial tenant", and Mr. Stirling was thereby entitled to a rent abatement of 20% starting in February 2018 to the end of the tenancy.
[12] Mr. Stirling started an appeal from the Board's decision to the Divisional Court on April 15, 2019. Mr. Stirling perfected his appeal on September 27, 2019, soon after the Association served its materials in support of this motion to quash.
[13] The Association's evidence on the motion is that Mr. Stirling has not paid rent since the Board issued its decision in March 2019. The affidavit in support of the motion was sworn in September 2019, and, at that time, Mr. Stirling owed over $18,000 in rent. This calculation includes the 20% monthly abatement.
[14] In response to the motion, Mr. Stirling swore an affidavit that purports to address the merits of his appeal. However, his affidavit does not address the non-payment of rent. At the hearing, through his counsel, Mr. Stirling advised that he had not paid rent in protest for the ongoing issues with the noise and fumes. However, when I asked whether Mr. Stirling would be prepared to pay the outstanding rent in advance of the appeal, I was advised that he is not in a financial position to do so because he currently receives Ontario Disability Support Program benefits, and that he could only make the payments over time.
Analysis
[15] The Association argues that Mr. Stirling's appeal should be quashed because it is manifestly devoid of merit and because it is an abuse of process. Alternatively, the Association requests that Mr. Stirling should be required to pay his outstanding rent before the appeal can proceed.
[16] I agree that the appeal is manifestly devoid of merit and that it is an abuse of process. Therefore, I do not need to consider what conditions should be imposed on the appeal.
Whether the appeal is manifestly devoid of merit
[17] 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), 24 O.R.(3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is seldom to be exercised because, it “is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal”.
[18] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, 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 that 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.
[19] The Association argues that the appeal in this case is manifestly devoid of merit because it does not raise any legal issues. I agree.
[20] On the motion, Mr. Stirling's lawyer argued that the appeal has merit because the Board erred in its application of subsections 83(3)(a), (b) and (c) of the Residential Tenancies Act, 2006, which provide that an application for an eviction is not to be granted in the following circumstances:
83(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;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights…
[21] In my view, Mr. Stirling's attacks on the Board's decision do not raise issues of law, but all relate to findings of fact or mixed fact and law.
Section 83(3)(a) the Residential Tenancies Act, 2006 - serious breach
[22] As reviewed above, section 83(3)(a) of the Residential Tenancies Act, 2006, precludes the Board from granting an application to evict a tenant where “the landlord is in serious breach of the landlord's responsibilities under this Act or of any material covenant in the tenancy agreement”.
[23] Mr. Stirling argues that the Board should have found that the noise and fumes coming from the ground floor constituted a “serious breach”, and that the Board made an error of law in failing to consider evidence from one of the witnesses he called. In particular, Mr. Stirling points to the Board’s finding that “[a]ll of the evidence concerning the levels of noise and fumes came from only the Tenant”, arguing that he did call one witness, C.L., who testified about the level of noise in his apartment while the bar was operating.
[24] In my view, this is not sufficient to constitute an error of law. The sentence must be looked at in context and cannot be considered in isolation.
[25] In the decision, the Board considered the issue of whether the noise and fumes constituted a serious breach in the same section as it considered whether the Association had interfered with Mr. Stirling’s reasonable enjoyment of his unit.
[26] The Board reviewed the following evidence relevant to these intertwined issues:
a. Mr. Stirling’s evidence that the noise from the bar kept him awake until 3:00 am, and that this had led to exhaustion, depression and an inability to work;
b. Recordings made by Mr. Stirling of the noise from the bar, that the Board found did not allow it to estimate the actual sound level because Mr. Stirling amplified the sound through his computer;
c. A letter from Mr. Stirling’s doctor in which the doctor repeated Mr. Stirling’s concerns about the sound levels;
d. The evidence of C.L., who gave evidence that the Board described as follows:
The Tenant called a witness, CL, who testified that she has been in the rental unit while the bar is operating, and has observed noxious fumes, and heard loud music that makes normal conversation difficult…
e. The evidence of C.P. and R.C., who were respectively residents of the building and an adjoining building, and who testified about the noise levels from their own units. The Board noted that neither of these witnesses provided evidence about the sound level from Mr. Stirling’s unit.
[27] The Board also reviewed evidence from the owner of the bar and one of the Association’s representatives. They both acknowledged that there have been issues with fumes and noise from the bar, but that efforts have been made to address these issues.
[28] After reviewing the evidence, the Board made the following findings:
Noise is a highly subjective issue. The tenant must establish on a balance of probabilities that the commercial tenant downstairs is making excessive noise and noxious fumes and that the Landlord has not taken reasonable steps to address his complaints.
All of the evidence concerning the levels of noise and fumes came from the Tenant. I found his descriptions to be hyperbolic and melodramatic. The Tenant also cannot expect the issues he is facing to be compared against what he had when he had only the not for profit utilizing its space for cultural purposes. It is within the rights of the Landlord to lease its lower unit for a commercial purpose within the allowable zoning.
I find that the Tenant has established, on a balance of probabilities, that there is excessive noise and fumes coming from the commercial tenant and that he is deserving of a rent abatement to compensate him for some loss of reasonable enjoyment of the rental unit.
[29] The Board went on to grant an abatement of rent of 20% per month starting in February 2018. The Board concluded this section of the decision by stating that it found “on a balance of probabilities, and considering the evidence presented by both parties, that the Landlord’s breach of responsibilities is not a serious breach within the application of section 83(3)(a) and so it does not apply in this situation”.
[30] A finding of fact based on no evidence is an error of law and, in some circumstances, the failure to appreciate the significance of evidence may amount to an error of law: Toronto Standard Condominium Corp. No. 2256 v. Paluszkiewicz, 2018 ONSC 2329 (Sup. Ct.), at para. 64.
[31] However, in this case, the Board did refer to C.L.’s evidence when reviewing the evidence on the noise levels in Mr. Stirling’s apartment. Based on all the evidence it reviewed, the Board found that the noise was sufficient to justify an abatement but not sufficient to constitute a serious breach. In making this finding, the Board had regard to the fact that Mr. Stirling’s unit is above a commercial space and that the Association had taken some steps to address the noise. In these circumstances, it was not an error of law for the Board to have said that “all of the evidence” about the noise and fumes came from Mr. Stirling. At most, this was an error of fact or mixed fact and law, over which the Divisional Court has no jurisdiction.
Section 83(3)(b) the Residential Tenancies Act, 2006 - retaliation
[32] Section 83(3)(b) of the Residential Tenancies Act, 2006 provides that the Board cannot grant an eviction order where “the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards”.
[33] Mr. Stirling argues that the Board failed to give proper consideration to his evidence that he had complained to the City of Toronto about the noise and fumes from the bar, and that in fact the City’s subsequent sanctions against the bar vindicate his complaints.
[34] As I indicated at the hearing of the motion, any evidence of what happened following the hearing before the Board is irrelevant on the appeal.
[35] In any event, and more importantly, in its decision, the Board made a finding of fact that the Association decided that it wanted to occupy unit for its own purposes before Mr. Stirling made any complaints to the City of Toronto:
The evidence does not support that the complaints by the Tenant to the City departments were the reason that the Landlord brought the application. The Landlord’s purposes in pursuing the eviction were long standing as supported by the directions from their membership…
[36] This was a finding of fact, and therefore does not give rise to a valid ground of appeal.
Section 83(3)(c) the Residential Tenancies Act, 2006 - enforcement of rights
[37] Section 83(3)(c) of the Residential Tenancies Act, 2006 provides that the Board cannot terminate a tenancy where “the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights”.
[38] Before the Board, Mr. Stirling argued that the Association wanted to terminate his tenancy because he refused to agree to a rent increase. The Board made the following findings of fact on this issue:
The Tenant testified that at a meeting he was put under “extreme pressure for 90 minutes to sign a lease”, but the recording of the meeting which the Tenant produced and selected parts to play at the meeting did not support his description. The meeting sounded in the recording as civil, and there was no lease with a rent increase ever presented to the Tenant to sign.
I do not see that the evidence supports the Tenant’s position that the application was brought in retaliation. It was the consistent evidence of directors for the Landlord that upon their appreciation of the serious financial pressures facing the Landlord, they began to look for options to manage the position of the Association to continue its activities but be able to meet its obligations. One of the options considered was receiving an increase in rent from the rental unit. When that was refused by the Tenant, they considered receiving rental income from their own space in the building. This was the option they ultimately took to the Association membership who provided their majority approval for the plan.
[39] Mr. Stirling argues that the Board failed to consider all of his evidence on this point. He says that the Board considered the recording he made of a meeting with the landlord in his apartment referred to above but refused to consider an additional recording of a hallway discussion.
[40] The limited portion of the transcript from the hearing provided by Mr. Stirling on the motion suggests that the Board member refused to allow Mr. Stirling to play the recording because there was no evidence that the Association’s representative had consented to the recording. This was not an error.
[41] In any event, the Board’s finding on this issue turned on a finding a credibility and an assessment of the evidence as a whole. The Board found that Mr. Stirling exaggerated what had occurred during the meeting in his apartment and that the Association did not seek to evict him in retaliation but because it was in financial difficulty and genuinely required the apartment for its own purposes. These were findings of fact. Again, they do not give rise to valid grounds of appeal.
Conclusion on the merits of the appeal
[42] Accordingly, I find that the appeal is manifestly devoid of merit because the issues raised are all errors of fact or, at most, errors of mixed fact and law.
Whether the appeal is an abuse of process
[43] I also find that the appeal is an abuse of process.
[44] Mr. Stirling has not paid rent since July 2018, and he now owes close to $20,000. While he claims to have been withholding rent out of principle, which he is notably not entitled to do without an order of the Board, this is not supported by the his actual situation. The bar stopped operating some months ago and, therefore, his unit is no longer affected by noise or fumes. Also, when asked about his ability to pay arrears, Mr. Stirling said that he was not in position to do so, other than over time and by borrowing money.
[45] While Mr. Stirling commenced his appeal in April 2019, he did not perfect it until late September, after being notified that the Association intended to bring a motion to quash his appeal.
[46] All of these circumstances suggest that the appeal is an abuse of process and an attempt to delay the eviction ordered by the Board: Regan v. Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.), at para. 4.
Conclusion
[47] For the reasons above, the Association’s motion is granted and I make the following order:
a. Mr. Stirling’s appeal is quashed;
b. The automatic stay of the Board’s decision is vacated;
c. The Association may file the Board’s eviction order with the Sheriff on February 28, 2020; and
d. Costs to the Association in the amount of $4,000 payable within 30 days of today’s date.
FAVREAU J.
RELEASED: February 20, 2020
CITATION: Stirling v. 399527 Ontario Ltd., 2020 ONSC 1098
DIVISIONAL COURT FILE NO.: 210/19 DATE: 20200220
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
JOHN E. STIRLING Appellant
– and –
399527 ONTARIO LTD., A.K.A. ASSOCIATION ARGOLIDOS "DANAOS" Respondent
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: February 20, 2020