CITATION: Devenne v. Sedun, 2020 ONSC 6141
DIVISIONAL COURT FILE NO.: 675-19
DATE: 20201008
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Suzanne Devenne Appellant
– and –
Leonard Sedun, Sedun-Kanerva Architects, Charlene Aka “Gale” Holmes, c/o Sedun-Kanerva Architects, and Len Sedun Respondent
Suzanne Devenne on her own behalf
Timothy M. Duggan for the Respondent
HEARD at Toronto by Videoconference on October 1, 2020
Penny J.
[1] This is a motion by the Respondent Landlord to quash the pending appeal of the Appellant Tenant to the Divisional Court. The Tenant appeals from decisions of the Landlord and Tenant Board terminating the Tenant’s tenancy effective December 6, 2019 for persistent late payment of rent.
[2] The Landlord’s moves to quash the appeal on the basis that it is:
(a) devoid of merit in that it raises no issues of law; and
(b) an abuse of process, in that the Tenant has not paid rent since December 2019 and is using the automatic stay of the Board orders to remain in her apartment rent-free.
[3] For the reasons that follow, the motion is granted and the appeal is quashed.
Background
The Board Proceedings
[4] The Tenant began living in her apartment about November 1, 2017 under a one-year lease requiring payment of rent by the first of each month in the amount of $1,200. When the lease expired, the Tenant remained in her apartment on a month to month tenancy.
[5] In February 2019, as found by the Board, the Tenant began persistently paying her rent late. As found by the Board, the Tenant was late paying her rent in 12 of 13 months from February 2018 to February 2019.
[6] There is a history of conflict between the Tenant and representatives of the Landlord. In January 2019, the Tenant commenced an application before the Board seeking relief in connection with her allegations that the Landlord’s representatives had harassed her and interfered with the reasonable enjoyment of her apartment.
[7] At about the same time, as a result of the history of late payment, the Landlord served the Tenant with a notice to terminate her tenancy for persistent late payment of rent. The Landlord then commenced an application before the Board seeking an order terminating the Tenant’s tenancy.
[8] The two proceedings were consolidated. The parties attended before the Board in person on May 23 and May 29, 2019. The presiding Board member, Member Solomon, in addition to commencing the hearing, conducted case management in an effort to identify the issues and establish a means by which the consolidated case could be heard in an organized, fair and efficient manner. In a procedural order of June 3, 2019, among other things, the Board ordered that all evidence, documents and submissions would be filed in writing on a timetable established in the order. The order went on to provide that any video evidence sought to be relied on by the parties would be reviewed at an in person hearing on September 5, 2019. The remainder of the hearing proceeded in accordance with the June 3, 2019 procedural order.
The Board Orders
[9] Following conclusion of the hearing, the Board took the matter under reserve. On November 1, 2019, before the Board released its decision in respect of both applications, the Member rendered an Interim Order.
[10] The Interim Order arose out of the circumstance that the Tenant had outstanding unpaid cost orders of $800 payable to the Board. Section 196(1)(c) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 provides that where an applicant owes money to the Board as a result of failing to pay costs, the Board is prohibited, until the costs have been paid, from issuing any order and the Board may discontinue the application as specified in the Board’s Rules. The Interim Order of November 1, 2019 required the Tenant to pay the outstanding costs within 15 days, failing which her application would be discontinued.
[11] The Tenant did not pay the outstanding costs. Instead, she sought a review of the Interim Order. In a review order of November 21, 2019 (the First Review Order), Member Whitmore reviewed each of the Tenant’s grounds for review and concluded that they were all without merit. Based on the Tenant’s submissions made in her request, the Board was not satisfied that there was even a prima facie basis to conclude there was a serious error in the Order or that a serious error had occurred in the proceedings. The request for a review of the Interim Order was dismissed.
[12] On November 25, 2019 Member Solomon issued her disposition on the main proceedings. She confirmed that, as the Tenant had not paid the Board’s outstanding costs, the Tenant’s application had been discontinued. The Board went on to deal with the Landlord’s application to terminate the tenancy based on persistent late payment.
[13] In a detailed, month by month analysis of the evidence and the submissions of the parties, the Board made findings of fact that the Tenant had been late in payment of rent for 12 of 13 months from February 2018 to February 2019.
[14] Further, the Tenant had argued at the hearing that the Board could not terminate her tenancy because the Landlord’s application had been commenced as a form of reprisal against her. Section 83 of the Act provides that the Board may refuse to grant a landlord’s application for eviction unless satisfied, having regard to all the circumstances, that it would be unfair to do so. Section 83(2) provides that if an eviction hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether it should exercise its power under s. 83(1). The Tenant specifically argued that s. 83(3) of the Act applied to prohibit an eviction order. Section 83(3) provides that the Board “shall refuse to grant” a landlord’s application for eviction where it is satisfied that: a) the landlord is in serious breach of its responsibilities under the Act or the tenancy agreement; b) the reason for the application is that the tenant has complained to a government authority about the landlord’s violation of the law concerning health, safety, housing or maintenance standards; or c) the reason for the application is that the tenant has attempted to secure or enforce her legal rights.
[15] In the November 25, 2019 Order, the Board considered the Tenant’s s. 83 arguments and found that it would be unfair to grant relief from eviction in the factual circumstances as found by the Board.
[16] The Board also considered whether a conditional order under s. 83(1) should be made postponing termination of the tenancy for a period of time. The Board found that, given the history of the late payments, the lack of valid reasons for the late payments, the multiple proceedings the Landlord had to institute to compel payment and the fact that, even after the Landlord’s application to terminate the tenancy was commenced, the dilatory habit of payment continued, this was not an appropriate case for a conditional order. The Board was “not satisfied the Tenant can or will pay her rent on time going forward.”
[17] Based on these findings the Board ordered that the Tenant’s tenancy would terminate as of December 6, 2019 and ordered the Tenant to pay the Landlord costs of $190.
[18] The Tenant again sought review of the Board’s November 25, 2019 order. This review was conducted by Member Lang. In her decision of December 10, 2019, Member Lang found there was no serious error in the November 25, 2019 Order and that no serious error had occurred during the proceedings. Accordingly, the Board dismissed the Tenant’s request for review of the November 25, 2019 Order.
[19] The Tenant filed a lengthy notice of appeal on December 10, 2019 appealing the November 1, 2019 Interim Order and the November 25, 2019 Order to the Divisional Court. In the notice of appeal, the Tenant asks that these decisions be set aside. By virtue of her appeal, enforcement of the Board’s November 25, 2019 Order was automatically stayed.
[20] The Tenant stopped paying her rent as of December 1, 2019. The Landlord applied to the Board for an order requiring the Tenant to pay rent. There was a dispute about whether a small rent increase of about $21 per month in 2019 was valid. Member Henry heard the application. In an order of February 24, 2020, the Board declined to resolve the rent increase issue in light of the pending appeal and stay. However, the Board ordered that the Tenant pay rent in the undisputed amounts of $1,200 per month commencing March 21, 2020.
[21] The Tenant has not vacated her apartment. She refused to pay her rent for the months of December, 2019 and January and February 2020. Contrary to the Board’s February 24, 2020 Order, the Tenant has not paid any rent since March 2019 either. The Tenant is currently in arrears of rent to the Landlord in the amount of at least $12,000. The Tenant has not yet perfected her appeal.
The Landlord’s Motion and the issues
[22] It is in these circumstances that the Landlord moves for an order quashing the appeal and lifting the stay. In the alternative, the Landlord seeks an order requiring payment of arrears of rent as a condition of not lifting the stay.
[23] The Landlord advances two arguments in support of the primary relief sought:
(1) the appeal is manifestly devoid of merit, raising no issue of law; and
(2) the appeal is an abuse of process because the Tenant is using her appeal as a means of delaying her eviction and living rent free at the Landlord’s expense.
[24] Accordingly, the issues on this motion are whether the appeal should be quashed as being devoid of merit or, whether the appeal should be quashed because, in the circumstances, it is an abuse of process.
Analysis
[25] It is well settled that the Divisional Court may quash an appeal if the appeal is manifestly devoid of merit or if it is an abuse of process seeking only to delay. Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that a court to which an appeal is taken may, on a motion, in a proper case quash the appeal. A “proper case” for granting a motion to quash is where the appeal is manifestly devoid of merit, Lesyork Holdings Ltd. v. Munden Acres Ltd., 1976 793 (ON CA) or where the appeal is an abuse of process, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.).
Devoid of Merit
[26] Section 210(1) of the Act provides that an appeal to the Divisional Court of an order of the Board is only available on a “question of law”. Questions of law involve questions about what the correct legal test is. Questions of fact are questions about what actually took place between the parties. Questions of mixed law and fact are questions about whether the facts satisfy the legal test. Where a tenant appeals an order of the Board on a question of fact or mixed fact and law, the Divisional Court does not have the jurisdiction to hear the appeal.
[27] 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, Stirling v 399527 Ontario Ltd., 2020 ONSC 1098 (Div. Ct.) at para. 18.
[28] I have carefully reviewed the Tenant’s lengthy list of grounds of appeal from the Board’s orders in this case. Many of the grounds of appeal raise issues which are extraneous to these proceedings of the Board and the Board’s orders under appeal. Within those grounds of appeal which are germane to these proceedings and orders, I can find no ground which asserts a question of law; all of these grounds of appeal raise only questions of fact or questions of mixed fact and law from which there is no “extricable” issue of law. The Tenant’s complaints are about the Board’s application of the law to the facts, as found by the Board. Her complaints are, in effect, an effort to “retry” the case that has already been heard by the Board in an effort to bring about a different assessment of the evidence and the facts.
[29] The only two grounds that even remotely raise the possibility of an issue of law are the Tenant’s complaint about the dismissal of her own application and the Tenant’s complaint about the treatment of her s. 83 complaints in the context of the Landlord’s application to terminate her tenancy. I will address each of these issues briefly in turn.
[30] As noted earlier, under s. 196(1)(c) of the Act, the Board cannot grant any order to an applicant who is in default of payment of costs to the Board. The Act also provides that the Board may discontinue the application in circumstances specified in the Board’s rules. The Tenant complains that the Board’s rules do not specifically contemplate the 15-day deadline imposed by the Board for payment of her outstanding costs before discontinuance of the Tenant’s application.
[31] This was the issue raised by the Tenant on review of the November 1, 2019 Interim Order. In the Interim Order, the Board dealt with the absence of a specific rule dealing with the deadline for payment of costs by analogy. Like the Court’s Rules of Civil Procedure, the Board’s Rules permit deriving an appropriate course of action by analogy to “other provisions of these rules”. The Board in this case applied the same deadline for payment of costs arising after the application was filed (which was not dealt with in the Rules) to those owing before the application was filed (which was dealt with in the Rules). The First Review Order made the same point and concluded that the Tenant’s position (that the Board could impose no deadline for payment of outstanding costs in these circumstances) would result in an absurdity.
[32] The Interim Order was governed by a mandatory provision prohibiting the Board from making any order in the Tenant’s application until the costs were paid. The discontinuance was a matter of discretion for the Board. The appropriate deadline for payment of outstanding costs was also a matter of discretion for the Board.
[33] The legislature has not invited the court to intervene on appeals were the Board applies facts to a legal standard. The legislature has specifically determined to limit the court’s role so that the substance of the issues concerning affairs between landlords and residential tenants set out in the statutory scheme are resolved by the Board and not by the court. The court is required to defer to decisions of the Board unless they raise a clear, extricable issue of law, 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 (Div. Ct.) at para. 31.
[34] The Board gave the Tenant notice of the problem and a reasonable opportunity to fix it. The Tenant failed to do so. The Tenant’s complaint raises no issue of law. The Tenant’s appeal on this issue, therefore, is manifestly devoid of merit.
[35] The Tenant also complains that her s. 83 argument was not given appropriate consideration. While it is true the Board’s reasons on the Tenant’s s. 83 argument are brief, they do deal with the point. Further, the Second Review Order, dealing the same issue, provides insight into why the Board’s November 25, 2019 reasons on the s. 83 issue were brief. In the Second Review Order, the Board found that the s. 83 issue was “not raised in any meaningful way” at the hearing and that the Tenant gave no evidence or further submissions to support her allegation at the hearing that the Landlord was in serious breach or was motivated by a desire to retaliate against her. In the absence of evidence to support this allegation, Member Solomon “could not reasonably deny” the remedy of eviction on this basis.
[36] The Tenant has offered no argument or basis for contradicting the Board’s findings in the Second Review Order. Nor has the Tenant provided any explanation or support for her position that the Board’s treatment of her s. 83 complaint raises a question of law. The application of s. 83 involves an exercise of discretion. Even where s. 83(3) factors are concerned, it is the Board that must assess the evidence to determine whether it is “satisfied” that the basis for denying the remedy of eviction has been made out on one of the enumerated grounds. The Board did so, and was not satisfied, on the evidence, that there was any basis for involving the provisions of s. 83(3). This does not give rise to an issue of law.
[37] There being no issue of law raised or identified, the Tenant’s appeal on this ground is also manifestly devoid of merit.
[38] For these reasons, the Tenant’s notice of appeal is quashed.
Abuse of Process
[39] The Tenant’s failure to pay rent for the last 11 months is an abuse of process. She has not yet perfected her appeal. The Tenant offered no reasonable excuse for non-payment of rent. She is, in my view, “gaming” the system to live rent free under the protection of an automatic stay. Given the amount owing, there is good reason to doubt the Tenant will ever be in a position to pay the arrears accumulated to date or that will, based on past practice, almost certainly continue to accrue in the future, Florsham v. Mason, 2915 ONSC 3147 (Div. Ct.) at para. 4; Solomon, at para. 43-44. In the circumstances, therefore, requiring payment as a condition of proceeding with her appeal or not lifting the stay is not a viable option.
[40] For these reasons as well, the appeal must be quashed as an abuse of process.
Conclusion
[41] The Landlord’s motion is granted. The Tenant’s appeal is quashed. The Tenant shall be afforded until October 31, 2020 to move out of her apartment before enforcement of the Board’s November 25, 2020 Order.
CoSts
[42] The Landlord shall have partial indemnity costs payable by the Tenant forthwith in the amount of $5,000 inclusive of fees, disbursements and all applicable taxes.
___________________________ Penny J.
Released: October 8, 2020
CITATION: Devenne v. Sedun, 2020 ONSC 6141
DIVISIONAL COURT FILE NO.: 675-19
DATE: 20201008
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Suzanne Devenne Appellant
– and –
Leonard Sedun, Sedun-Kanerva Architects, Charlene Aka “Gale” Holmes, c/o Sedun-Kanerva Architects, and Len Sedun Respondent
REASONS FOR JUDGMENT
Penny J.
Released: October 8, 2020