Court File and Parties
CITATION: Kang v. Grant, 2020 ONSC 6934
COURT FILE NO.: DC-19-2570
DATE: 2020/11/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Jagwinder Kang Landlord Respondent
– and –
Nadine Grant Tenant Appellant
Josh Malhi & Sim Chahal for the Respondent
Self-represented Appellant
HEARD in Ottawa: October 29, 2020
Reasons for Decision
O’BONSAWIN J.
[1] Mr. Jagwinder Kang, the Landlord, moves under s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to quash the appeal of Ms. Nadine Grant, the Tenant, on the grounds that the appeal is devoid of merit and raises no question of law as required under s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”).
[2] For the reasons below, the motion to quash the appeal is granted.
Background Facts
[3] Mr. Kang’s Affidavit provides the factual background of this matter. Ms. Grant did not file a response to this motion. However, she attended the motion hearing and was provided an opportunity to make submissions.
[4] Mr. Kang owns the property municipally known as 719 Guardian Grove in Ottawa (the “Property”).
[5] On January 29, 2019, Mr. Kang and Ms. Grant entered into a lease agreement for a period of twelve months (the “Lease”). The parties agreed to a monthly rent payment of $1,900.00.
[6] The portion of $1,000.00 of Ms. Grant’s rent was to be paid by Ontario Works.
[7] Pursuant to the terms of the Lease, Ms. Grant was required to provide the first month’s rent and a security deposit of $3,800.00, as well as to obtain Tenant’s Insurance.
[8] On February 1, 2019, Ms. Grant moved into the Property. She failed to provide the first month’s rent and a security deposit. In addition, she did not obtain Tenant’s Insurance as required.
[9] Ms. Grant did not pay her rent due on March 1, 2019. However, on March 20, 2019, she paid $900.00. Ms. Grant did not pay her rent for April 2019. On May 17, 2019, she transferred $900.00 to Mr. Kang. Ms. Grant did not pay any rent thereafter.
[10] On October 7, 2019, Mr. Kang appeared before the Landlord and Tenant Board (the “Board”). Ms. Grant did not attend. The Board made the following Order:
Unless the Tenant voids the order as set out below, the tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit by October 20, 2019.
The Tenant shall pay to the Landlord $5,972.81, which represents the amount of rent owing and compensation up to October 9, 2019.
The Tenant shall pay to the Landlord $62.47 per day for compensation for the use of the unit starting October 10, 2019 to the date the Tenant moves out of the unit.
The Tenant shall also pay the Landlord $175.00 for the cost of filing the application.
If the Tenant does not pay the Landlord the full amount owing on or before October 20, 2019, she will start to owe interest. This will be simple interest calculated from October 21, 2019 at 3.00% annually on the balance outstanding.
If the unit is not vacated on or before October 20, 2019, then starting October 21, 2019, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.
Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord, on or after October 21, 2019.
If, on or before October 20, 2019, the Tenant pays the amount of $7,475.00 to the Landlord or to the Board in trust, this order for eviction will be void. This means that the tenancy would not be terminated and the Tenant could remain in the unit. If this payment is not made in full and on time, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.
The Tenant may make a motion to the Board under subsection 74(11) of the Act to set aside this order if they pay the amount required under that subsection on or after October 21, 2019 but before the Sheriff gives vacant possession to the Landlord. The Tenant is only entitled to make this motion once during the period of the tenancy agreement with the Landlord.
[11] On October 16, 2019, Ms. Grant requested that the Board’s Order be reviewed. She obtained an Interim Order granting a stay of the Board’s Order dated October 9, 2019.
[12] On November 7, 2019, the parties appeared before the Board for the Review Hearing. Ms. Grant admitted that she owed rent arrears and that she could no longer afford the rent. On November 8, 2019, the Board made the following Order:
Interim order HOL-05609-19-RV-IN, issued on October 16, 2019, is cancelled.
Order HOL-05609-19, issued on October 9, 2019, is cancelled and replaced with the following.
The tenancy between the Landlord and the Tenant terminates on November 29, 2019.
If the unit is not vacated on or before November 29, 2019, then starting November 30, 2019, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced.
Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord, on or after November 30, 2019.
The Tenant shall also pay to the Landlord $62.47 per day for compensation for the use of the unit starting November 30, 2019 to the date the Tenant moves out of the unit.
The total amount the Tenant owes the Landlord in arrears and costs to November 29, 2019 is $8,356.28. The Landlord understands that the City of Ottawa has issued a cheque in the amount of $1,000.00 payable to him towards the amount owing. Upon receipt of that cheque, the total amount the Tenant will owe the Landlord in arrears and costs is $7,356.28.
If the Tenant does not pay the Landlord the full amount owing on or before November 29, 2019, the Tenant will start to owe interest. This will be simple interest calculated from November 30, 2019 at 3.00% annually on the balance outstanding.
[13] Ms. Grant advised Mr. Kang that she required time to vacate the Property due to an upcoming medical procedure. Consequently, Mr. Kang agreed to delay the eviction.
[14] On December 2, 2019, Ms. Grant filed a Notice of Appeal seeking to appeal the Order dated November 8, 2019.
[15] As of October 1, 2020, Ms. Grant is in rent arrears in excess of $16,000.00 and she remains in possession of the Property.
Issue
[16] Should this court quash Ms. Grant’s appeal?
Position of the Parties
[17] Mr. Kang argues that Ms. Grant’s appeal ought to be quashed as it is devoid of merit, it is frivolous and it is an abuse of process. In addition, Ms. Grant’s appeal is in violation of s. 210(1) of the RTA as it raises no question of law.
[18] Ms. Grant argues that she tried to perfect her appeal and has retained a lawyer to assist her. She did not have the opportunity to perfect her appeal because of the COVID-19-related closures and wants to show this court that her appeal has merit.
Analysis
[19] In Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8, the court confirmed that a court that hears an appeal may quash the appeal pursuant to s. 134(3) of the Court of Justice Act, if the appeal is manifestly devoid of merit. “An appeal of an order of the Board that does not disclose a question of law may be quashed on the basis that it is manifestly devoid of merit”: see Mahdieh, at para. 8.
[20] In Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6, the court stated that that the power to quash an appeal 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 first hearing the entire appeal”.
[21] Section 210(1) of the RTA notes that an appeal from a decision of the Board is to be determined by the Divisional Court, but only on a question of law. The bar to quash an appeal is generally high on the basis that it is devoid of merit. However, it is appropriate to quash an appeal from an Order of the Board where the appeal does not raise a question of law: see Meglis v. Lackan, 2020 ONSC 5049 (Div. Ct.), at para. 23. In addition, this court has held that launching an appeal for the only purpose of obtaining a stay of the eviction in landlord and tenant proceedings is an abuse of process: see Meglis, at para. 31.
[22] In Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), the court summarized the difference between questions of law, questions of fact and questions of mixed law and fact. “[Q]uestions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests”: see Solomon, at para. 32, citing Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[23] I have reviewed the grounds of Ms. Grant’s appeal and they are as follows:
The Member made errors of law.
The Appellant did not have the opportunity to properly advocate and was not given an opportunity to present all evidence.
The Member erred in granting the eviction Order. There was no basis to order the eviction.
The Member erred in law because the relevant provisions of s. 83 of the RTA (relief from forfeiture) were neither presented nor considered by the Landlord and Tenant Board.
The Appellant provided evidence and information regarding her medical conditions and her two minor children which were ignored or not considered by the Member.
At the time of the hearing, the Appellant did not have all the information about the full extent of her medical condition and procedure. Her medical condition was far more severe than she was previously told and that information was not available until her procedure which took place on November 26, 2019. The procedure was not successful, and she has required further follow ups and medical assistance which included attending the emergency department on November 28, 2019. She continues to require medical attention for the foreseeable future.
It would be unfair to evict the Tenant.
[24] The grounds pled by Ms. Grant do not specify any errors that raise a question of law. It must be noted that Ms. Grant obtained a review of the Order dated October 9, 2019 because the Board agreed that she was not able to participate in the original hearing. The Board proceeded to hear her application de novo. Ms. Grant attended and was an active participant in the Review Hearing on November 7, 2019.
[25] With regards to s. 83 of the RTA, the Board specifically noted the following: “I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the ‘Act’), and find that it would not be unfair to postpone the eviction pursuant to subsection 83(1)(b) of the Act”. It is clear that the Board turned its mind to s. 83 of the RTA.
[26] With regards to Ms. Grant’s pleadings regarding her medical issues, the Board specifically addressed them in paragraph 7 and made a finding of fact. As for the fairness of the eviction, this is not an error in law. These two issues are not reviewable by this court.
[27] I find that Ms. Grant’s pleadings do not disclose any errors in law made by the Board.
[28] It is noteworthy that Ms. Grant only made two payments in the amount of $900.00 that represented her portion of the rent in March and May 2019. She has not attempted to make any further monthly payments and arrears payments. Apart from the two payments, Ms. Grant has basically been living in the Property for free since she moved in on February 1, 2019. In addition, during the hearing before the Board, Ms. Grant acknowledged that she was in breach of her obligations under the lease and admitted that she could not afford the rent. She began this appeal in order to delay her eviction. I find that this appeal is an abuse of process.
Conclusion
[29] For the reasons above, I make the following Order:
The appeal is quashed;
The automatic stay of the Board’s decision is vacated;
Mr. Kang may file the Board’s eviction order with the Sheriff on November 26, 2020; and
Ms. Grant is to pay costs to Mr. Kang in the amount of $5,718.78 all inclusive payable within 30 days of today’s date.
[30] The reasons for this decision and the Order in paragraph 29 are effective on the date they are released. No formal Order is required.
Justice M. O’Bonsawin
Released: November 13, 2020
CITATION: Kang v. Grant, 2020 ONSC 6934
COURT FILE NO.: DC-19-2570
DATE: 2020/11/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jagwinder Kang Landlord Respondent
– and –
Nadine Grant Tenant Appellant
Reasons for Decision
O’Bonsawin J.
Released: November 13, 2020