CITATION: Yang v. He, 2020 ONSC 1165
DIVISIONAL COURT FILE NO.: DC-19-2539
DATE: 2020/02/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Yonghong yang, Landlord/Respondent in Appeal
AND:
Hongmin (Linda) He, Tenant/Appellant
BEFORE: Justice R. Ryan Bell
COUNSEL: Jirina Bulger, for the Landlord/Respondent in Appeal
Hongmin (Linda) He, Self-represented
HEARD: February 20, 2020
ENDORSEMENT
[1] The tenant appealed from the September 3, 2019 order of the Landlord and Tenant Board. The landlord moved to quash the appeal. The parties first appeared before me on February 6, 2020. I granted a brief adjournment on that date because the tenant advised she wished to be represented by counsel. I fixed the date of February 20, 2020 for the hearing of the motion with the date being preemptory on the tenant.
[2] Following the hearing on February 20, 2020, I quashed the tenant’s appeal on the basis that it was manifestly devoid of merit because it raised no question of law. I advised the parties that my written reasons would follow. These are my reasons.
[3] The landlord brought an application to terminate the tenancy and to evict the tenant based on the non-payment of rent. The landlord’s application was heard on August 26, 2019. The landlord and the tenant attended the hearing before the Board. Both were unrepresented. The landlord was assisted by a translator.
[4] On September 3, 2019, the Board Member terminated the tenancy and ordered the tenant to vacate the rental unit on or before September 14, 2019. The Member’s order provided that the order for eviction would be void if, on or before September 14, 2019, the tenant paid rent arrears for the period February 1 to September 30, 2019 and the landlord’s costs of the application.
[5] On September 26, 2019, the tenant appealed to the Divisional Court from the Board Member’s order. The appeal has not been perfected. The rent arrears have not been paid. The tenant served no responding materials on this motion to quash.
[6] 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. I am satisfied that this is a proper case in which to exercise this power.
[7] Section 210(1) of 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.
[8] The tenant’s notice of appeal seeks an order requiring the landlord to produce receipts for rent payments made to date and to sign a standard form lease with the tenant. The notice of appeal sets out two grounds of appeal:
i. The learned Landlord and Tenant Board member erred in law by making a decision in contradiction to the evidence tendered and accepted by the said Landlord and Tenant Board member.
ii. The learned Landlord and Tenant Board member ignored the evidence of the Tenant regarding the Tenant’s requests to the Landlord to produce receipts and/or erred by not including this evidence in their Determinations.
[9] Neither of these grounds raises a question of law as required by s. 210(1) of the Residential Tenancies Act, 2006 for a party to appeal a decision of the Board. Questions of law are questions about what the correct legal test is. The enumerated grounds relate to the Board Member’s acceptance, rejection and weighing of the evidence. These are not questions of law.
[10] In her submissions on the motion, the tenant stated that she was denied procedural fairness by the Board Member because she was precluded from introducing certain evidence at the hearing. Leaving aside the fact that the denial of procedural fairness was not identified as a ground of appeal in the notice of appeal (and I note that the tenant was represented by counsel at the time the notice was prepared and served), it appears to me that in substance, the tenant again seeks to challenge the Board Member’s assessment and weighing of the evidence and her findings in relation to the evidence. Again, no question of law is raised.
[11] The tenant is concerned with the identity of the landlord and the landlord’s failure as at the time of the Board hearing to provide a standard form lease. The Board Member addressed both issues in her order. At the hearing, the tenant argued that the landlord was not properly named on the notice or on the application because a title search revealed there was another owner of the rental unit. The landlord submitted that the other owner is a spouse. The Board Member exercised her discretion and found that this issue was not “a fatal flaw” to hearing the matter on its merits.
[12] As noted by the Board Member in her order, the landlord did not dispute that no written lease had been provided to the tenant. However, because the tenant was unable to provide any evidence that she had made her request for a standard form lease to the landlord in writing (as required by s. 12.1(5) of the Residential Tenancies Act, 2006), the Board Member concluded that the conditions permitting the withholding of rent had not been met.
[13] I am satisfied that the appeal raises no questions of law and is manifestly devoid of merit. I conclude that the appeal was commenced by the tenant for the purpose of delay and to avoid eviction.
[14] For these reasons, on February 20, 2020, I made the following order:
i. The tenant’s appeal is hereby quashed in its entirety pursuant to s. 134(3) of the Courts of Justice Act, with prejudice.
ii. The stay of the Board’s order of September 3, 2019 is lifted.
iii. The Court Enforcement Office (the Sheriff) shall enforce the September 3, 2019 order.
iv. The tenant shall pay all unpaid rent to the date she vacates the premises.
[15] After hearing submissions from the parties, I also ordered that the tenant shall pay the landlord’s costs of the appeal and the motion, fixed in the amount of $2,000, inclusive of fees, disbursements and taxes. In my view, this amount reflects the landlord’s success on the motion and the fact that the motion required attendances by counsel on February 6, and 20, 2020.
Justice R. Ryan Bell
Date: February 21, 2020
CITATION: Yang v. He, 2020 ONSC 1165
DIVISIONAL COURT FILE NO.: DC-19-2539
DATE: 2020/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Yonghong yang, Landlord/Respondent in Appeal
AND:
Hongmin (Linda) He, Tenant/Appellant
BEFORE: Justice R. Ryan Bell
COUNSEL: Jirina Bulger, for the Landlord/Respondent in Appeal
Hongmin (Linda) He, Self-represented
ENDORSEMENT
Ryan Bell J.
Released: February 21, 2020