Bye Estate v. Adair, 2020 ONSC 7439

CITATION: Bye Estate v. Adair, 2020 ONSC 7439

DIVISIONAL COURT NO.: DC-18-1095

COURT FILE NO.: SC-17-128

DATE: 2020-12-02

ONTARIO

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT

RE: The Estate of the Late Sam Bye (Appellant)

v.

Patricia Adair, Paul Adair and Douglas Adair (Respondents)

BEFORE: A.D. Kurke, J.

COUNSEL: D.A. Thomson, for the Appellant

D. Williams, for the Respondents

HEARD: November 30, 2020, at Parry Sound

ENDORSEMENT

Overview

[1] Georgina Arnott, the appellant and Estate Trustee of the Estate of Sam Bye, appeals against the Small Claims Court rulings of Deputy Judge Thurston dated March 20, 2018 and July 23, 2018 at Parry Sound, dismissing the appellant’s claim on the basis that the matter was within the exclusive jurisdiction of the Landlord and Tenant Board, and awarding costs of the motion to the respondents.

[2] For the following reasons, the appeal is dismissed.

Facts

[3] The respondents purchased 152 Loch Erne Road, McDougall (the “property”) from Sam Bye (“Bye”), in or about April 2014. The respondents were Bye’s sister and brother-in-law. The purchase was subject to a condition that Bye could continue to live in the property rent-free. The respondents claim that it was also agreed that Bye had to live there alone.

[4] Bye lived together with the appellant in a common-law relationship. The respondents claimed that Bye had breached the terms of their agreement with him. Bye disputed that there was an agreement that he live alone and brought an application to the Landlord and Tenant Board (the “Board”) on March 30, 2015, to determine his status as a tenant. The respondents applied on April 7, 2015 “to have the Board determine whether the Residential Tenancies Act or any provision of it, applies to the rental unit…”

[5] Unfortunately, on June 28, 2015, Bye died before his application could be heard. Bye’s Will was dated June 26, 2015 and appointed the appellant as Estate Trustee. A Certificate of Appointment of Estate Trustee with a Will finally issued March 12, 2018.

[6] It appears undisputed that after Bye died the respondents entered the property and removed at least some of Bye’s chattels and put them in a storage unit. The appellant elected to continue proceedings before the Board on behalf of Bye’s Estate. Her counsel wrote to the respondents’ representative that it was the appellant’s intention to attend Bye’s “landlord and tenant matter” as estate representative on August 20, 2015, and that if the appellant had been unable to obtain or access Bye’s goods in the storage unit, then that would “be an issue for discussion” at the Board on August 20. On August 20, 2015, the appellant opted to engage in mediation with the respondents, pursuant to s. 194(1) of the Residential Tenancies Act, 2006, S.O. 2006 c.17 (the “RTA”).

The agreement pursuant to [s. 194(1)](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html) of the [RTA](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html)

[7] The parties reached an agreement (the “agreement”) under s. 194 of the RTA, which was reduced to writing on a Board template, and initialled and signed by the parties. It indicated Bye as the “Tenant” and Paul and Patricia Adair as the “Landlord”. The “Address of Rental Unit” was indicated as the address of the Property.

[8] The agreement is two pages in length. It appears that the appellant and the respondents’ representative, Kelly Draycott, initialled the bottom of the first page and signed the agreement towards the bottom of the second page. Blanks have been filled in by hand. I shall indicate with underlining and italics those portions that are handwritten. The preamble and body of the agreement state:

“On March 30/15, the Tenant filed an application to determine whether the Act applies.

The application was mediated by Stephen Kozak, a mediator with the Landlord and Tenant Board.

The Landlord and Tenant agree to the following terms and conditions in full and final satisfaction of the Tenant’s application:

1. Georgina Arnott (alledged [sic] executrix of the Estate of Sam Bye) agrees to attend “Hwy 124 Stor All” on August 21, 2015 to make arrangements to switch the storage unit alledgedly [sic] containing Sam Bye’s possessions into her or the Estate’s name.

2. The Landlord’s representative, Kelly Draycott, acknowledges that the storage unit is paid to August 31, 2015 and the parties agree that should the storage unit be required after August 31, 2015, Georgina Arnott or the Estate will be responsible for payment of the storage unit effective September 1, 2015.

3. As soon as the storage unit is switched to Georgina Arnott’s or the Estate’s name, Kelly Draycott will provide the key to the storage unit to Georgina Arnott on August 21, 2015 or any date the representatives agree upon.

The parties understand that if any of the terms in this agreement are not met, the application may be reopened within one year of the date this agreement was signed by the parties.

The parties acknowledge receiving a copy of this agreement. The Board will not keep a copy.”

[9] The agreement was signed by Kelly Draycott and the appellant, and the date August 20, 2015 added beside each signature.

[10] The respondents’ application was withdrawn on consent on August 21, 2015.

The appellant institutes a Small Claims Court case

[11] The appellant claims that “it was represented” to her on August 20, 2015 that all of the contents of the property had been placed in storage. She claims to have signed the agreement based on “a representation that all of the estate assets would be made available to her.” The appellant was very disappointed to discover that this was not, in fact, the case. She noted that many valuable items were not included in the storage unit.

[12] The respondents assert that they provided no inventory or representation about what was in storage and what was not. Before the agreement was signed, they notified the appellant through counsel that the storage unit and keys were available to her. The appellant did not retrieve the keys, access the unit, or make any inventory of its contents. The respondents claim that many valuable items in the property did not belong to Bye personally.

[13] The appellant never sought to reopen the application.

[14] However, almost two years after the date of the agreement, on June 28, 2017, the appellant commenced a Small Claims Court action as Executrix on behalf of the Estate, seeking “compensation for property withheld from the Executrix of the Estate.” Although the appellant claimed that the missing items were worth more than she was claiming, the appellant capped her claimed relief at $25,000. She included with her Claim a single-spaced list of 2 ½ pages, containing items that she asserted should have been in the unit, but which were not, and which had an estimated value of $38,554.21. The respondents defended the action.

The deputy judge dismisses the Claim

[15] The respondents brought a motion dated December 23, 2017 seeking to strike the Claim as “a waste of the Court’s time, an abuse of process and/or as frivolous and vexatious pursuant to Rule 12.02 of the Rules of the Small Claims Court.” They also asked for costs.

[16] In her responding material, the appellant stated in her affidavit, among other things:

“8. Since the issue before the tribunal was moot, I met with the mediator with the Landlord and Tenant Board on August 20, 2015. It was represented to me that the Defendants had removed all of the contents of the home and placed them in storage. Based upon the representation that all of the estate assets would be made available to me, I signed an agreement…. That document was written by the mediator, Stephan Kozak.

12. I did not immediately take an inventory of the contents of the storage unit as I grieved the loss of Sam. When I did it was discovered by me that the unit did not contain all of Sam Bye’s possessions as had been represented to me by the Defendants and their agent, Kelly Draycott.”

The trial judge’s reasons and costs

[17] In very terse reasons, the deputy judge set out the background facts, and referred to the mediated agreement and its penultimate statement that the parties understand that “if any of the terms in this agreement are not met, the application may be reopened within one year” of the signing date. The deputy judge then referred to s. 91(1) of the RTA, which deems a tenancy terminated 30 days after the death of the tenant. He noted that s. 91(2) requires the landlord to preserve the tenant’s property for the executor of the estate. The deputy judge held that the matter was within the jurisdiction of the Board as a result of s. 91 of the RTA and the mediated agreement. He thereupon dismissed the Claim, and invited submissions on costs if the parties could not agree.

[18] The respondents sought $2,500 in costs and $110 for disbursements. The appellant opposed the awarding of costs, given the lack of supporting evidence to ground any costs claimed. In his costs decision, the deputy judge awarded the defendants $1,710 for the motion, disbursements, and a representation fee.

Grounds of appeal

[19] The appellant submits that the deputy judge erred:

a. by finding that the subject of the action fell within the exclusive jurisdiction of the Landlord and Tenant Board;

b. by failing to address the issue of exclusivity in his reasons for decision, thereby providing inadequate reasons; and

c. in the event that this court finds that the deputy judge erred in dismissing the appellant’s claim, the appellant seeks leave to appeal the deputy judge’s award of costs, asserting that the deputy judge erred by failing to require a factual basis as to the quantum of costs and the basis for a representation fee.

[20] I would not give effect to any of these grounds of appeal.

Standard of review

[21] With respect to errors of law, the standard of review is correctness, and an appellate court may substitute its view for that of the trial judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9.

Legislation and jurisdiction of the Board

[22] Section 168(2) of the RTA states: “The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.”

[23] A landlord’s obligations on the passing of a tenant are set out in s. 91 and 92 of the RTA:

91(1) If a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant.

91(2) The landlord shall, until the tenancy is terminated under subsection (1),

(a) preserve any property of a tenant who has died that is in the rental unit or the residential complex other than property that is unsafe or unhygienic; and

(b) afford the executor … of the tenant’s estate, or if there is no executor or administrator, a member of the tenant’s family reasonable access to the rental unit and the residential complex for the purpose of removing the tenant’s property.

[24] Mediation is specifically permitted under the RTA:

194(1) The Board may attempt to settle through mediation or another dispute process any matter that is the subject of an application or agreed upon by the parties.

[25] The Rules of the Board (Landlord Tenant Board Specific Rules, Rules of Procedure, Amended January 23, 2019), provide for mediated agreements to be reconsidered in certain circumstances and within a set timeframe:

13.11 A party to a mediated agreement may ask the [Board] to re-open the application if:

a. the other party does not meet a term of the mediated agreement;

b. the party making the request lacked the capacity to enter into the mediated agreement; or

c. during the mediation, the other party coerced them or deliberately made false or misleading representations which had a material effect on the agreement.

13.12 A request to re-open must be in writing, provide the facts or reasons supporting the request, and attach a copy of the mediated agreement. The request to re-open must be filed with the [Board] no later than one year after the mediated agreement was signed unless the parties agree to a longer time.

[26] A specific example of a mediated agreement being reopened and held to be invalid is found at 2012 30090 (ON LTB).

[27] To determine whether it is the Board or a court that has jurisdiction over a dispute involving a landlord and a tenant, it is not the nature of the dispute that governs. The key question in such disputes relates to whether the essential character of the dispute, in its factual context, arises either expressly or inferentially from the statutory scheme: Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 39. So, in Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801, the Court held at para. 44:

“If the essential character of the dispute, in its factual context, arises from the statutory scheme, it does not matter that the claim is asserted for a cause of action which is ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. The characterization of the dispute is resolved by whether the subject matter of the dispute expressly or inferentially is governed by the statute[.]”

[28] The jurisdiction of the Board is set out in the RTA. The Board has exclusive jurisdiction to determine all applications under the RTA with respect to all matters in which it is given jurisdiction by the RTA. Because of this exclusivity of jurisdiction, if the Board has jurisdiction, then the Small Claims Court does not, even though both have a monetary jurisdiction of $25,000: Efrach v. Cherishome Living, 2015 ONSC 472, at paras. 5-6.

Discussion

[29] The two grounds of appeal that relate to the jurisdiction of the Board are, in effect, a single issue. The question is whether the deputy judge erred in finding that the Board had exclusive jurisdiction to determine the alleged misrepresentations of the respondents that caused her to sign the agreement. The further issue of whether the deputy judge’s reasons for so finding were sufficient is of no consequence if an examination on this appeal results in the same conclusion.

[30] Here, the following factors point to the exclusivity of the Board to deal with the issues raised by the appellant:

a. Bye had brought an application to the Board for consideration;

b. It was on the basis of Bye’s application that the appellant, who claimed all along to be Bye’s executrice, took part in mediation provided by the Board;

c. After Bye’s death, the appellant was evidently concerned about retrieving Bye’s belongings, something permitted to an executor by s. 91(2)(b) of the RTA;

d. The appellant voluntarily engaged in mediation offered by the Board;

e. The mediation resulted in a mediated agreement, pursuant to s. 194 of the RTA, in which issues relating to s. 91 of the RTA were dealt with, apparently on agreement of the parties;

f. In the agreement, signed by the appellant, Bye is indicated as a “tenant”, and the respondents as “landlord”;

g. The appellant was advised in the agreement that she signed that she had a year from the date of the agreement to seek to reopen Bye’s application under the Rules of the Board.

[31] Based on these factors, I find that the Board had exclusive jurisdiction over this dispute. The mediation related to the collection by an executrice of the belongings of a deceased tenant, pursuant to jurisdiction conferred on the Board under ss. 91 of the RTA. An agreement was entered into by the appellant under the authority of s. 194 of the RTA. The “essential character” of this dispute therefore relates to the scheme of the RTA in at least the two ways adverted to by the deputy judge in his decision dismissing the Claim: through sections 91 and 194 of the RTA.

[32] The appellant complains that the Board had no jurisdiction over the matter because Bye’s application to determine whether he was in fact a tenant was never decided. I do not agree. The voluntary attornment by the appellant to the jurisdiction of the Board, and her engagement in mediation in relation to Bye’s application, forecloses any argument that would call into question the Board’s jurisdiction: Wolfe v. Wyeth, 2011 ONCA 347, at paras. 42-44, 53. Once the appellant herself agreed to the jurisdiction of the RTA, she must therefore abide by all its rules, including its one-year limitation period for seeking to reopen Bye’s application.

[33] The appellant’s assertion, that it was the misrepresentations by the respondents about the contents of the storage unit that convinced her to sign the agreement, does not oust the jurisdiction of the Board. Rather, that ground is specifically adverted to in the Board’s Rule 13.11 as a reason to seek to reopen. The appellant’s failure to seek to reopen the application within a year does not permit the matter to be litigated in another forum. The exclusive jurisdiction of the Board ousts the jurisdiction of the courts. To permit jurisdiction of the courts to be reclaimed after allowing a Board limitation period to lapse would be to encourage an abusive multiplicity of proceedings. The deputy judge’s dismissal of the Claim was correct.

[34] As to the sufficiency of reasons, while the deputy judge’s reasons could have been fuller, he clearly explained how he arrived at his conclusion that the Board had jurisdiction over this matter. His reasons are transparent and accessible to the parties, the public and to this court: R. v. Sheppard, 2002 SCC 26, at para. 15. It is of no consequence that the deputy judge did not state that the Board’s jurisdiction was exclusive, given that on these facts it clearly was. The reasons were sufficient.

[35] Based on these conclusions, I need not consider the final ground of appeal, relating to the costs issue below.

Conclusion

[36] For the above reasons, the appeal is dismissed.

[37] If the parties are unable to agree on costs, they may provide written submissions of no more than three written pages to the court within thirty days.

The Honourable Mr. Justice A.D. Kurke

Date: December 2, 2020