CITATION: Zhou v. Cherishome Living, 2020 ONSC 500
COURT FILE NO.: 098/19
DATE: 20200124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MIN ZHOU and JIANHAO WU
Self-Represented
Tenants/Appellants
- and -
CHERISHOME LIVING, ELM PLACE INC., and DRAGAN ESKIC
Martin Zarnett, for the Landlord/Respondent
Landlord/Respondent
HEARD: November 12, 2019 at Toronto, Ontario
Michael G. Quigley J.
REASONS FOR DECISION
Introduction
[1] This appeal arises out of three separate proceedings commenced before the Landlord and Tenant Board (the “Board”) under the Residential Tenancies Act, 2006 (the “RTA”).[^1]
[2] Min Zhou and Jianhao Wu (the “Tenants”) appeal from two decisions of the Board, the first by Member Whitmore dismissing two applications the Tenants brought against Cherishome Living and Elm Place Inc. (collectively the “Landlord”)[^2], and the second, by Vice-Chair Henderson, which denied the Tenants’ Request to Review.
[3] In those applications, both essentially the same, the Tenants argued that the Landlord’s alleged failure to comply with its maintenance obligations constituted substantial interference with the reasonable enjoyment of their rental unit in contravention of s. 22 of the RTA. The Board dismissed the Tenants’ applications upon determining that the applications had been brought on the wrong form. The Board found that they should have been brought as claims regarding the Landlord’s maintenance obligations under s. 20 of the RTA, rather than as substantial interference claims under s. 22 of the RTA.
[4] On this appeal, the Tenants seek to set aside the two orders of the Board, and request the court to make orders: (i) requiring the Board to “[c]ontinue to hear” their applications, (ii) dismissing the termination and compensation application filed by the Landlord in a parallel proceeding (which the Landlord argues is not the subject of this appeal), and (iii) granting costs for the appeal on a full indemnity basis.
Background
[5] There is a history of litigation between these parties that goes back several years to 2014. This most recent dispute commenced when the Tenants applied to the Board for orders determining that the Landlord had harassed and threatened them and substantially interfered with their reasonable enjoyment of the rental unit. The Tenants filed application TST-69731-16, on January 4, 2016, and a second application, TST-81841-17, on February 1, 2017.
[6] In both applications, as in earlier similar applications referred to later in these reasons, the Tenants alleged that the Landlord had not properly maintained their units. However, both applications were brought as Form T2 applications. Form T2 is a form that the Board has prescribed to be used for claims of substantial interference with reasonable enjoyment of the premises, while claims of disrepair are to be brought to the Board as Form T6 applications.
[7] Around the time of the filing of the second Tenants’ application, the Landlord filed a termination application, TSL-81928-17, alleging that the Tenants had wilfully or negligently damaged the rental unit.
[8] These three applications first came before the Board on January 17, 2018. Board Member Rodrigues released an Interim Order on January 19, 2018 (“Interim Order #1”) in which he ordered the parties to disclose copies of “any document, photograph, receipt, recording, or like thing” on which the parties intended to rely at the hearing of the merits of the applications.
[9] However, on May 27, 2018, the Board Vice-Chair issued an Endorsement to the parties informing them that Member Rodrigues had left the Board upon being appointed a Justice of the Peace. The Vice-Chair advised the parties that the hearing would have to be rescheduled, but would nevertheless proceed under the terms of Interim Order #1.
[10] The rescheduled hearing commenced before Board Member Whitmore on August 3, 2018. At that hearing the Landlord was represented by Mr. Zarnett. The Tenants were self-represented with the assistance of a professional Mandarin interpreter. Two important things happened at that hearing, that are relevant to this appeal.
[11] First, the Landlord made a preliminary motion on August 3, 2018, to dismiss the Tenants’ applications. The Landlord argued that the applications should be dismissed for procedural non-compliance because the Tenants’ Applications were made on T2 forms,[^3] but the issues raised were merely maintenance issues, which ought to have been made on T6 forms.[^4]
[12] Second, the record shows that it became clear to the Member in the course of the Landlord's argument that day that even with the assistance of an interpreter, the Tenants were not able to understand the arguments that were being made by the Landlord.
[13] In an attempt to fairly address that problem, the Member curtailed the Landlord’s oral submissions. He reached no substantive decisions that day. Instead, he decided that the Landlord's motion would continue to be heard by way of written submissions. As stated in his ruling, he did so to ensure that the Tenants would have the Landlord's arguments in writing and the opportunity in advance of the hearing to avail themselves of whatever translation they needed in order to understand and respond.
[14] He also established a schedule for the exchange of written submissions (“Interim Order #2”). He ordered that the Landlord provide the Tenants and the Board with its written submissions on the preliminary motion on or before August 15, 2018. The Tenants were ordered to provide their responding submissions in writing, to the Landlord and the Board, on or before October 31, 2018. The return date for the Tenants’ applications would be set for a date after December 3, 2018, to permit the Member to reach a decision on the preliminary motions.
[15] The parties filed written submissions in accordance with the schedule. Having received and considered the written submissions of both parties, the Member issued an Interim Order on December 24, 2018, dismissing both of the Tenants’ applications (“Interim Order #3”). He also made an order that a date be set for the hearing of the Landlord’s application.
[16] In Interim Order #3, the Member concluded that it would be contrary to the intent of the RTA to permit tenants to argue that a landlord’s breach of its maintenance obligations interferes with a tenant’s reasonable enjoyment of the rental unit. In support of that conclusion, the Member cited a previous Board decision, Tenants v. Parkbridge Lifestyle Communities Inc.,[^5] from which the Landlord’s counsel had provided a two-page excerpt.
[17] The Member rejected the Tenants’ argument that the Landlord’s alleged bad faith motivation for failing to maintain the unit brought their claims within s. 22 of the RTA. He conceded that there might be “a narrow category of applications brought on the wrong form”, which could still be heard by the Board, such as where a tenant files the wrong application in error. However, he found that this case did not fall within that category since the Tenants admitted that they specifically intended to use the T2 form rather than a T6 form.
[18] Pursuant to Rule 26 and in accordance with the Board’s Interpretation Guideline #8, on January 22, 2019, the Tenants filed a Request to Review Interim Order #3. In that Request, the Tenants alleged that, among other errors, the Member failed to consider the Tenants’ written motion alleging that the Landlord had committed an offence by putting false or misleading information before the Board.
[19] On February 13, 2019 the Vice-Chair denied the Request to Review without conducting a further oral hearing (“the Review Order”). She concluded that “there is nothing in the record or in the request for review to support a finding that the Member’s interpretation of the Act is unreasonable.”[^6] The Vice-Chair also rejected the Tenants’ argument that the Member’s failure to address the Tenants’ written motion regarding the commission of alleged offences was a serious error.
[20] On February 26, 2019 the Tenants filed an appeal in this court against Interim Order #3 and the Review Order.
[21] Finally, in a preliminary motion brought on October 31, 2019, prior to the hearing of this appeal, the Tenants sought permission to introduce fresh evidence on the appeal, and to be granted additional time for oral argument. Corbett J. declined to grant either request. He concluded that the Tenants had not met the legal test to permit the introduction of fresh evidence on appeal. Moreover, given that all appeal issues raised by the Tenants were set out extensively in their factum, he concluded that one hour would be more than enough time for them to present their case orally. Nevertheless, during oral argument before this court, the Tenants were granted additional time to make their submissions.
Issues
[22] In the Notice of Appeal the Tenants listed the grounds of appeal as follows:
We believe:
(1) The facts identified in the LTB’s review order and Interim Order are groundless and wrong;
(2) The review order is not a reasonable interpretation or application of the law;
(3) “Error in Procedures” in review order is not a reasonable interpretation or application of the law
(4) Dismiss Case TSL-81928-17, Because in Form N5 the landlord to file false or misleading information with the Landlord and Tenant Board, it is an offence. So we request Divisional Court to make a fair judgment.
[23] The Notice of Appeal reflects that the Tenants were self-represented and did not have legal assistance in preparing their appeal materials. In order to identify grounds of appeal that this court can analyse, I reframe the first three issues as follows based on the submissions and the material filed:
In Interim Order #3 and in the Review Order, did the Board fail to enforce Interim Order #1 requiring the parties to disclose documents, and did it commit errors of law in receiving material from the Landlord or otherwise?
Did the Board deny the Tenants procedural fairness resulting in an error of law?
Was the Board’s decision in Interim Order #3 and the Review Order reasonable or did it err in concluding that the Tenants’ applications should have been brought on Form T6 rather than Form T2?
[24] In the Tenants’ fourth ground of appeal and in submissions, they asked that this court dismiss the outstanding application of the Landlord for termination and compensation (TSL-81928-17). However, that application is not the subject of this appeal because it is still “pending before the Board”. The Panel was advised that as of November 11, 2019, the application is still active, but no hearing has yet been scheduled. Since that application has not yet been scheduled, much less heard, this court has no jurisdiction to deal with that matter.
[25] The Tenants’ submissions also included a fifth ground of appeal that was based on (i) allegations of criminal wrongdoing and conspiracy allegedly perpetrated against them by the Vice-Chair and Board members, and (ii) allegations of bias by the Board Members who presided over these hearings. Since there was no evidence presented that could provide any foundation whatsoever for those allegations, the Panel declined to hear any of the Tenants’ submissions on those allegations and instead directed the Tenants to limit their oral submissions to the three issues set out above.
Jurisdiction of the Divisional Court on the appeal
[26] Sections 168, 174, and 209 of the RTA establish that the Board has exclusive jurisdiction and authority to hear and determine all questions of law and fact with respect to all matters that lie within its jurisdiction under the RTA.[^7] Pursuant to s. 210(1) of the RTA,
Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.[^8]
Standard of Review
A. As of November 12, 2019
[27] The Tenants challenge Interim Order #3 and the Review Order. At the hearing of the appeal, the principal issue was whether those orders were reasonable. The Tenants argue that the Board made errors of law and that they were not reasonable. The Landlord took the position that Interim Order #3 and the Review Order were reasonable.
[28] At the hearing of the appeal, the standard of review to be applied to the Board’s decision was reasonableness. In First Ontario Realty Corporation v. Deng[^9] and in Onyskiw v. CJM Property Management Ltd.,[^10] the Court of Appeal confirmed that the Board administers a specialized adjudicative regime for resolving residential tenancy disputes. It emphasized that deference is owed to the Boards’ decisions where it is required to interpret its “home statute” and regulations, with which it has particular familiarity, in the course of making determinations relating to its core functions. Courts are required to show “respect for the decision-making process of adjudicative bodies with respect to both the facts and the law”, and cannot substitute their own reasons in place of the reasons of the tribunal.
[29] The decision in Newfoundland Nurses[^11] establishes that on a reasonability analysis, neither the validity of a tribunal’s reasons nor the result will be impugned simply because the tribunal’s reasons may not include all the arguments, statutory provisions, jurisprudence, or other details that were before it. A decision-maker is not required to make explicit findings on each constituent element, however subordinate, leading to its final conclusion. The question instead is whether the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes. If so, then the Dunsmuir criteria are met.[^12]
B. As of December 20, 2019
[30] On December 19, 2019 the Supreme Court of Canada released its decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov[^13] and Bell Canada v. Canada (Attorney General)[^14]. On December 20, the Court released its decision in Canada Post Corp. v. Canadian Union of Postal Workers[^15].
[31] In Vavilov, the Court articulated the framework for review of decisions made by administrative tribunals in the context of judicial review applications and statutory appeals. In summary, the Court held as follows:
When courts engage in substantive review of administrative decisions, the reasonableness standard is presumed to apply. (para. 10)
The presumption of reasonableness does not directly flow from the specialized expertise of the decision-maker relative to that of the reviewing court, but from the fact of delegation by the legislature to the decision-maker. (paras. 30-31)
The presumption of reasonableness will be rebutted where the legislature has indicated that it intends a different standard to apply, or where the rule of law requires that correctness be applied. (para. 17)
Where a standard of review has been legislated, that standard should be applied by a reviewing court. (paras. 34-35)
The legislature’s creation of a statutory right of appeal is an indication that it expects the court to scrutinize administrative decisions on an appellate basis, and accordingly, the appellate standards of review, pursuant to Housen v. Nikolaisen,[^16] are to apply to those appeals. (paras. 36-37)
[32] Before finalizing these reasons, the Panel considered whether the court should afford to the parties an opportunity to make written submissions as to the impact of those decisions on this appeal. We concluded that it was not appropriate to do so.
[33] As indicated above, in Interim Order #2, the Member directed the parties to make written submissions on the Landlord’s preliminary motion to dismiss the Tenants’ applications, TST-69731-6 and TST-81841-17, so as to accommodate the challenges to the Tenants in understanding the issues in the motion. Furthermore, as is apparent from the grounds in the Notice of Appeal, the Tenants have not had legal input into the preparation of the documents for the appeal, and expressed no interest in having such input at the hearing of the appeal.
[34] Pursuant to s. 134(1) of the Courts of Justice Act,[^17] an appellate court may make any order or decision that is considered just. Having regard to all of the circumstances, I find that the delay and expenditure that would be entailed in inviting further submissions in this case in respect of the Vavilov decision is unnecessary. I reach that conclusion because I find that under the law summarized above in paragraphs 27-29, the outcome would have been the same as indicated in paragraphs 38-40, below.
[35] Nevertheless, accepting that this court should at least take on the task of determining whether these recent decisions have any impact on this appeal, those findings are set out in the following paragraphs.
C. Conclusion on Standard of Review
[36] The RTA has created a statutory right of appeal on legal issues only. The RTA does not establish the standard of review for such an appeal.
[37] Accordingly, as a statutory appeal, the appellate standards of review, pursuant to Housen v. Nikolaisen, apply, namely:
On a pure question of law, the basic rule is that an appellate court is free to replace the decision with its own. The standard of review is correctness. (para. 8)
The standard of review for findings of fact is palpable and overriding error because of the deference owed on findings of fact. (para. 10)
Once it has been determined that a matter being reviewed involves the application of a legal standard to a set of facts, it is a question of mixed fact and law. (para. 27)
The standard of review for questions of mixed fact and law is also palpable and overriding error. (para. 36)[^18]
[38] The first issue arises from the procedural direction given in Interim Order #1 and the Tenants request that the Member order the Landlord to comply with that disclosure order. Neither the Member nor the Vice-Chair made an explicit ruling on this issue. It is, however, implicit in the Member’s decision that the Tenants’ request was dismissed, and the Vice-Chair declined to review the Member’s decision on that basis. For reasons explained below, those were decisions based on mixed fact and law. They are not “only a question of law”. Pursuant to s. 210 of the RTA, they are not subject to appeal. The appeal is dismissed on that basis. I need not make a finding as to the impact of Vavilov on the standard of review.
[39] As explained below, the second issue, namely whether the Tenants were denied procedural fairness, is not subject to a standard of review. This court must determine whether procedural fairness was afforded to the Tenants. The decision in Vavilov does not impact this court’s analysis of the second issue.
[40] The third issue requires the court to consider Interim Order #3 granting the Landlord’s motion and dismissing the Tenants’ applications, and to consider the Review Order. For reasons explained below, those are decisions of mixed fact and law. They are not “only a question of law”. Pursuant to s. 210 of the RTA, they are not subject to appeal. The appeal is dismissed on that basis. I need not make a finding as to the impact of Vavilov on the standard of review.
Analysis
- In Interim Order #3 and in the Review Order, did the Board fail to enforce Interim Order #1 requiring the parties to disclose documents, and did it commit errors of law in receiving material from the Landlord or otherwise?
[41] I will set out the background because it is related to the context in which the second issue arose and in order to explain my finding that it is a non-appealable question of mixed fact and law.
[42] In Interim Order #1, Member Rodrigues ordered the parties to disclose copies of “any document, photograph, receipt, recording, or like thing” on which the parties intended to rely at the hearing of the merits of the applications. By order of the Vice-Chair, that procedure was to continue to apply at the next hearing before Member Whitmore after Member Rodrigues left the Board.
[43] The Tenants allege that the Member erred at the hearing on August 3, 2018 by permitting the Landlord to submit an excerpt from a previous Board case. Specifically, the Landlord provided the Member with an excerpt from the decision in Tenants v. Parkbridge Lifestyle Communities Inc., above, in support of the Landlord’s preliminary motion to dismiss the Tenants’ applications for failure to make use of the correct forms. However, the Tenants contend that permitting the Landlord to rely on this case law violated s. 201(3) of the RTA, which provides that if a party fails to comply with a direction to file evidence, the Board may “refuse to consider the party’s submissions and evidence”.[^19]
[44] The Tenants say that the Board Member made errors of law (i) in hearing some of the Landlord’s submissions at the August 3 hearing, but not granting the same right to the Tenants, before adjourning that hearing to proceed thereafter as a hearing in writing supported by written submissions of the parties, and (ii) by receiving the excerpts from Board case-law.
[45] In my view, however, this is neither an accurate nor a fair construction of what occurred that day. The Member entirely disregarded the verbal submissions of the Landlord made on August 3, 2018 when he adjourned that hearing, ordered that the matter would proceed forward as a hearing in writing, and set a schedule for the receipt of written submissions.[^20]
[46] In doing so, as I will discuss further below, he was specifically motivated by concern to ensure the Tenants fully understood the nature of the Landlord’s motion, and that they had adequate time to respond to it. As the record shows, the written submissions of the Landlord were provided to the Tenants on August 14, 2018, and the Tenants were given a full opportunity to know the issues before filing their responding materials several months later, by October 31.
[47] The issue appears to have been raised owing to a misunderstanding by the Tenants of what occurred that day. By August 3, 2018, the Landlord had filed and disclosed to the Tenants all documentation on which it intended to rely as evidence. There were no outstanding copies of documents, photographs, receipts, recordings, or like things on which the parties intended to rely as evidence at the hearing of the merits of the applications, that had not previously been filed with the Board and disclosed to the Tenants.
[48] The Tenants appear to have regarded the excerpt of prior Board jurisprudence as a “disclosure of documents” made outside the time limits established in the Board’s Rules. However, the prior Board jurisprudence was not provided to the Board as evidence on the hearing. Instead, it was provided to the Member to ensure that he was aware that the Board had previously rendered a decision on the same point in another Board hearing in London, Ontario.
[49] Neither Interim Order #3 nor the Review Order make specific reference to this issue. In Interim Order #3, the Member wrote as follows:
In their written submissions, the Tenants raise a number of complaints respecting the August 3, 2018 hearing. The crux of their complaints is that they were not able to understand the motion the Landlord was making. They attribute their inability to understand the proceedings to what they characterize as misconduct on the part of the Landlords’ representatives and myself.
While I do not agree that any misconduct occurred in the hearing, I quite agree that the Tenants did not understand what was happening. It was for that reason that I directed that the motion be heard in writing. In deciding the motion, I have only considered the parties’ written submissions. I have not considered any submissions made orally at the hearing.
[50] I infer from those paragraphs that the Member was aware that other complaints were raised, including the Tenants’ complaints that the Landlord had violated Interim Order #1 and that the Board should require compliance with that order. I also infer that by not specifically addressing the issue, and by relying on the decision in Tenants v. Parkbridge, the Member rejected the validity of the complaint.
[51] Administrative tribunals are not required to provide an explanation for every piece of the analysis. In this case, the reason for the rejection of the complaint is obvious. It is common for Board Members to refer in their decisions to the Board’s previous decisions and reasoning concerning the same or similar fact situations. It is accepted that previous decisions do not fall into the category of “any document, photograph, receipt, recording, or like thing on which the parties intend to rely”. Prior decisions, typically referred to as “jurisprudence”, are not evidence. The Landlord did not breach Interim Order #1 by providing to the Board a 2-page excerpt from the decision in Tenants v. Parkbridge.
[52] The Board Member and the Vice-Chair implicitly found that the fact situation in that case was the same or similar to this case and that the reasoning and decision were therefore relevant. That was a decision of mixed fact and law. Pursuant to s. 210 of the RTA, that decision is not appealable and for that reason, that ground of appeal is dismissed.
- Did the Board deny the Tenants procedural fairness resulting in an error of law?
[53] The Tenants’ second ground of appeal arises out of and is an extension of the first, but it focuses on procedural fairness.
[54] Stated summarily, the Tenants take the position that in adjourning the August 3 hearing to continue as a written hearing, the Member did not deal with the motion that they had filed. They say it was illegal of him to fail to deal with their motion. As such, the Tenants claim that they were deprived of their rights to procedural fairness, which constitutes an error of law on which they argue this court may intervene.
[55] Appeals from decisions of the Board to this court are restricted to questions of law alone, but as the Tenants note, the breach of a duty of procedural fairness is an error of law on which this court may intervene.[^21]
[56] The requirements of procedural fairness are set out in the seminal decision of the Supreme Court in Baker v. Canada (Minister of Citizenship & Immigration)[^22]. In Houston v. 530675 Ontario,[^23] Ellies J. of this court addressed those requirements within the specific context of proceedings before the Board under the RTA:
32 In Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), at paras. 23 - 27, the Supreme Court of Canada held that the specific requirements necessary to provide procedural fairness in any given case depend upon a number of factors, including the following:
(1) the nature of the decision being made and of the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
33 In my view, the Board's decision to hold a written hearing in the first instance, and the legislative and regulatory framework within which that decision was made, respect the duty of procedural fairness and, in particular, the audi alteram partem rule of natural justice.
34 Section 183 of the RTA requires the Board to 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.”
35 Pursuant to s. 184, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) applies with respect to all proceedings before the Board. Section 25.0.1 of the SPPA grants the Board the power to determine its own procedures and practices and to make rules for that purpose under s. 25.1 of the SPPA.
[57] The case law advanced by the Tenants on this appeal, and included in the Landlord’s Book of Authorities, all plainly support and recognize the need for procedural fairness in hearings before the Board. They also recognize that a denial of procedural fairness amounts to a legal error. But contrary to the assertion that it denied them procedural fairness, I find that the Member halted the August 3 hearing and adjourned it to a hearing involving written submissions specifically out of concern to ensure that the Tenants’ rights to natural justice and to procedural fairness were fully respected in this case. As indicated in paragraph 2 of Interim Order #2, quoted above, the Member identified the challenges the Tenants were experiencing.
[58] The RTA and the Statutory Powers Procedures Act[^24] grant the Board the power to determine its own procedures and practices and to make rules for that purpose. Further, as Ellies J. observes in Houston, above, s. 183 of the RTA requires the Board to adopt the most expeditious method of determining the questions that are the focus of the Board proceeding, and specifically that which would allow tenants, or others who might be affected by the proceeding, an adequate opportunity to know the issues and to be heard on the matter. Those were the exact underlying concerns that caused the Member to act as he did as set out in Interim Order #2.
[59] Looked at against this procedural matrix, it was open to the Member to terminate the August 3, 2018 hearing as he did, to disregard the oral submissions made by the Landlord, to establish a schedule for written submissions to be served and filed on the Board and the other parties, and to make a decision on the Landlord’s preliminary motion based on those written submissions. Contrary to the Tenants’ claim that he denied them procedural fairness in proceeding this way, it is plain on the record that it was to ensure that the Tenants would be treated fairly procedurally that the Board Member took the steps he did.
[60] In my view, the Board’s decision to hold a written hearing in this case in these circumstances, a decision authorized by the legislative and regulatory framework within which that decision was made, fully respects the duty of procedural fairness that was owed to the Tenants and, in particular, the audi alteram partem[^25] rule of natural justice. The decision was made specifically to permit the Tenants to have time to have the Landlord’s position translated into Mandarin, and to thereby permit them to understand the case raised by the Landlord against them on the preliminary motion. The Board required the Landlord to file its submissions by August 15, 2018, but granted the Tenants a significant grace period of two and a half months to allow them to respond to the Landlord’s position fully in written submissions.
- Was the Board’s decision in Interim Order #3 and the Review Order reasonable or did it err in concluding that the Tenants’ applications should have been brought on Form T6 rather than Form T2?
[61] As indicated above, the Board’s decision in Interim Order #3 and in the Review Order is a question of mixed fact and law and is not appealable. The appeal on that ground is dismissed. I set out the background to explain my conclusion that it is a question of mixed fact and law.
[62] Pursuant to s. 185 of the RTA, all applications filed with the Board “shall be in the form approved by the Board, and shall be accompanied by the prescribed information and shall be signed by the applicant.”
[63] The Tenants claim that the Board did not consider their motion, but plainly the focus of this appeal and the hearing in writing by the Member was the preliminary motion of the Landlord that the Tenants’ applications should be dismissed procedurally for failure to use the prescribed forms in commencing their applications. Yet the Tenants did specifically respond to this preliminary motion by continuing to insist that they had used the correct forms in this case because “the landlord deliberately refuse[d] to repair” several parts of their unit.
[64] The Tenants argued that the Landlord’s “intentional act” substantially interfered with their reasonable enjoyment of their rental unit. The Tenants distinguished this claim of deliberate refusal from an ordinary claim of disrepair, citing the Member’s comments in Interim Order #3 that s. 20 is engaged by a “failure to maintain the premises”, rather than by an intention not to maintain the premises.
[65] The core of the Member’s reasons is in paragraphs 9-16:
- Broadly speaking, any contravention of the RTA could be said to interfere with a tenant’s reasonable enjoyment of the premises. However, I do not think that the legislature intended section 22 to be interpreted that broadly. In particular, section 22 is not available to address matters that are specifically addressed under other sections of the RTA. I agree with the Board’s reasoning in
SWT-73750-15/SWL-99291-17:[^26]
To allow parties to pursue duplicate claims based on the broad wording of “substantial interference” stripped away from its specific intended application under the Act would improperly dilute the meaning of this term. If a tenant is permitted to seek parallel remedies through a T2 application with respect to purely maintenance concerns, a landlord could likewise argue that a tenant’s failure to pay the monthly rent substantially interferes with his or her lawful rights under section 64 of the Act to obtain a remedy not properly available under the actual cause of action. This would run contrary to logical statutory interpretation and lead to an unjust result.
Simply put, a failure to maintain the premises is a contravention of section 20, not section 22.
The Tenants argue that disrepair is a contravention of section 22 if the disrepair is deliberate. They say that if a landlord deliberately refuses to do maintenance, then the refusal constitutes substantial interference with reasonable enjoyment.
I am not persuaded by the Tenants' argument. Neither section 20 nor section 22 says anything about a landlord's motives. A failure to maintain the unit is a contravention of section 20, whether or not it is deliberate. Likewise, conduct which substantially interferes with a tenant's reasonable enjoyment, is a contravention of section 22, whether or not it is deliberate. The RTA is remedial, not punitive, so it does not matter whether a person intends a contravention.
There is no dispute that the Tenants' complaints are maintenance complaints. I therefore find that they can only be brought under section 20, not section 22.
That does not quite end the matter, because I am not persuaded that a tenant's choice of forms must, in every case, be definitive. The Board clearly intended that a form T6 be used for section 20 claims, and a form T2 for section 22 claims. However, many tenants do not understand the distinction, and, not being legally sophisticated, use the wrong forms. It seems to me that, in appropriate cases, an application brought on a T6 form could be heard under section 22. Likewise, an application brought on a T2 form could be heard under section 20.
This is not such a case. The Tenants in this case did not intend to bring an application about maintenance, but used the wrong form by mistake. Rather, the Tenants were aware of the distinction between the forms, having filed applications, prior applications using both forms. They deliberately chose to file their claim on a T2 form because they intended to characterize the Landlord's conduct as substantial interference contrary to section 22, not disrepair contrary to section 20. They made that decision based on their position that disrepair contravenes section 22 if it is deliberate. The Tenants have filed exactly the application they intended to file.
The Tenants are bound by their litigation choices. They chose to characterize the Landlord's alleged conduct as a breach of section 22. I have found that the alleged conduct would not be a breach of section 22. The applications must be dismissed. [Emphasis added]
[66] The Member found as a fact that there was no dispute that the Tenants’ complaints were maintenance complaints. He found as a mixed question of fact and law that the failure to maintain the premises is a contravention of s. 20, not s. 22 and that the Board intended that a form T6 is required for s. 20 claims. He found as a fact that there was no confusion in the form that the Tenants filed with the Board. The Tenants did not intend to bring an Application about maintenance, and they were aware of the distinction between the forms, having had considerable experience in filing prior Applications using both forms. The Member found as a fact that the Tenants had prior experience in the use of the forms and that they deliberately chose to file their claim on a T2 Form because they intended to and sought to characterize the Landlord’s conduct as “substantial interference” contrary to s. 22, not “disrepair” contrary to s. 20. He found as a fact that they chose that route because they claimed the Landlord’s conduct was deliberate. He found as a question of mixed fact and law that the Tenants were bound by their litigation choices.
[67] The Tenants continued to assert that their evidence supported their position that the problems were the result of the Landlord’s deliberate actions, and thus they argued before this court that the Board made an error of law in deciding that the Landlord’s preliminary motion should be allowed and in dismissing the Tenants’ applications for failure to use the proper prescribed form.
[68] In my view, the decision of the Board is a finding of mixed fact and law. It starts with an interpretation of s. 22 in reliance on Tenants v. Parkbridge. It refers to the record in which the Tenants acknowledge awareness of the distinction in the form and to the deliberateness of choosing a T2 Form. It goes on to consider the distinction between the T6 form and the T2 form as provided by the Landlord and Tenant Rules. This aspect of the decision is not “only on a question of law”. It is not appealable and is dismissed on that basis.
[69] In denying the Request to Review, the Vice-Chair also made a decision of mixed fact and law that is not appealable.
Costs
[70] At the conclusion of the hearing, the parties were not invited to make submissions as to costs. Given the lengthy period of time that the Tenants’ applications have been outstanding, I will not extend the time further by asking for written submissions. The fundamental issue is that the Tenants were not successful. The Landlord is entitled to costs.
[71] Bearing in mind the importance of the issues, the modest circumstances of the Tenants, the likely costs incurred by the Landlord in preparing its compendium and factum and in attending for the hearing, and the discretion in this court pursuant to s. 210(5) of the RTA, I will fix an amount that brings a message to the Tenants that there are cost consequences to bringing unsuccessful appeals.
ORDER TO GO AS FOLLOWS:
[72] The appeal is dismissed.
[73] The Tenants shall pay costs to the Landlord in the amount of $1,500.
M.G.J. Quigley J.
I agree ___________________________
Kiteley J.
I agree____________________________
Baltman J.
Released: January 24, 2020
CITATION: Zhou v. Cherishome Living, 2020 ONSC 500
COURT FILE NO.: 098/19
DATE: 20200124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MIN ZHOU and JIANHAO WU
Appellants/Tenants
- and –
CHERISHOME LIVING, ELM PLACE INC. and DRAGAN ESKIC
Respondents/Landlord
REASONS FOR DECISION
Michael G. Quigley J.
Released: January 24, 2020
[^1]: Residential Tenancies Act, 2006, S.O. 2006, c. 17 [^2]: Board Files TST-69731-16 and TST-81841-17. [^3]: RTA, s. 29, para. 3. [^4]: RTA, s. 22. While not directly relevant to this appeal, the Landlord also indicated on August 3 that it intended to make a second motion respecting duplication in the Tenants' applications. [^5]: SWT-73750-15/SWL-99296-17. [^6]: Review Order, at para. 4. [^7]: RTA, ss. 168, 174 and 209. [^8]: RTA, s. 210; Christo v. Woon, 2017 ONSC 5127, at paras. 17-20. [^9]: 2011 ONCA 54, 274, O.A.C. 338, at paras. 15-17 and 20-22. [^10]: 2016 ONCA 477, 132 O.R. (3d) 295, at paras. 26-31; see also Warraich v. Choudhry, 2018 ONSC 1267, at paras. 8-10. [^11]: Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. [^12]: Ibid., at paras. 15-16. [^13]: 2019 SCC 65. [^14]: 2019 SCC 66. [^15]: 2019 SCC 67. [^16]: 2002 SCC 33. [^17]: R.S.O. 1990, c. C.43. [^18]: Subject to qualification as to where on the spectrum the question of law lies, which qualification is not relevant in this case. [^19]: RTA, at s. 201(3)(a). [^20]: Ibid. [^21]: 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264. [^22]: 1999 699 (SCC), [1999] 2 S.C.R. 817. [^23]: 2017 ONSC 6419, at paras. 32-35. [^24]: R.S.O. 1990, c. S.22. [^25]: The ancient Latin Audi alteram partem rule, means and requires that both parties have an opportunity to be heard. [^26]: Also known as Tenants v. Parkbridge, above.