CITATION: Sterling v. Guillame, 2021 ONSC 1160

DIVISIONAL COURT FILE NO.: 01/21 DATE: 20210222

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ANGELA STERLING Respondent/Landlord

– and –

VALERIE HENRY GUILLAME Appellant/Tenant

Delaram M. Jafari for the Respondent Landlord Valerie Henry Guillame on her own behalf

HEARD by teleconference: February 15, 2021

ENDORSEMENT

PENNY J.

overview

[1] In an order of December 29, 2020, the Landlord and Tenant Board found that the Tenant, Ms. Guillaume, had, in a series of incidents in 2019 and 2020, seriously impaired the safety of the Landlord, Ms. Sterling (who is 74 years of age). The LTB concluded that the assaults and threats by the Tenant against her Landlord were “extremely serious” in nature, that they “cannot be allowed to continue” and that “the tenancy needs to end.” The LTB, among other things, terminated the tenancy, ordered the Tenant to vacate the rental unit by January 15, 2021, and directed the Sheriff, if the Tenant did not move out as ordered, to “expedite the enforcement” of the eviction order.

[2] The Tenant appealed this order to the Divisional Court, thus triggering an automatic stay of enforcement of the eviction order.

[3] The Landlord moves for an order quashing the appeal as being manifestly devoid of merit (because it does not raise any issue of law, as required by s. 210 of the Residential Tenancies Act) and an abuse of process (because the Tenant has not paid any rent since December 2019 and is using the automatic stay to continue to live in the unit rent-free) and for an order lifting the automatic stay.

[4] In addition to responding to the Landlord’s motion, the Tenant has also brought a motion against the Landlord seeking an order for contempt. The contempt order is sought on the basis that the Landlord, contrary to the stay of eviction proceedings, changed some of the locks to the Landlord’s residence in which the rental unit is located.

[5] Thus, the issues for determination are:

(a) whether the Tenant’s appeal should be quashed as manifestly devoid of merit and/or as an abuse of process; and

(b) whether a contempt order should issue against the Landlord.

background

[6] There is a long and complex history to the interactions between the Landlord and the Tenant. Numerous applications have been brought by both parties against the other before the LTB. In addition, both civil and criminal proceedings have been invoked at various times.

[7] Of relevance here is that, in prior proceedings against the Tenant in early 2019 for nonpayment of rent, there was a hearing on March 20, 2019. As recorded by the decision of the LTB issued March 25, 2019, both parties signed in on the attendance sheet but the Tenant left the building and did not return. Following an uncontested hearing, the LTB ordered the Tenant to pay $1,650 for rent owing January 1 to March 31, 2019 and $190 in costs. The evidence is that this payment has not been made.

[8] In a subsequent proceeding later that year, the Landlord again applied for an order for payment of arrears of rent, this time seeking an order to terminate the tenancy and for the Tenant’s eviction.

[9] The Tenant also commenced proceedings against the Landlord seeking an abatement of rent and making allegations against the Landlord of harassment, interference, illegal entry, substantial interference with use and enjoyment and failing to maintain the rental unit.

[10] The Tenant’s applications came before the Board on October 7, 2019. Since the Tenant did not appear at the hearing, the LTB found that the Tenant’s application had been abandoned.

[11] The Landlord’s application came before the LTB on October 30, 2009. At this hearing, the Tenant re-initiated her proceedings against the Landlord alleging substantial interference with her reasonable enjoyment, harassment, interference, illegal entry and failure to maintain. The hearing of both matters was adjourned. In its November 4, 2019 endorsement, the LTB made various procedural and case management orders. The LTB also specifically ordered that the Tenant pay her rent to the LTB in trust as follows:

6. The Tenant shall pay into the Board in trust the monthly rent for November, 2019 on or before November 15, 2019.

7. The Tenant shall also pay into the Board in trust new rent as it comes due and owing for the period commencing December 1, 2019, until this application is disposed of or the Board orders otherwise.

8. If the Tenant does not comply with paragraph 7 of this order then pursuant to s. 195(4) of the Act the Member hearing the application may refuse to consider the Tenant’s evidence and submissions and the Landlord may request shortening of the time to hearing.

[12] The evidence is that the Tenant paid November and December 2019 rent to the LTB in trust but has made no payments since. The evidence of the Landlord is that she is owed in excess of $10,000 in rental payments and that only $1,100 has been paid in trust to the LTB. The Tenant has not provided any contradictory evidence.

[13] The Landlord also commenced the present eviction application, based on serious impairment to her safety, in 2019. This application was first before the Board for hearing on January 27, 2020. The Tenant did not attend the hearing and sent a legal aid lawyer to seek an adjournment on her behalf. The adjournment was granted but, due to the disruptions of the COVID-19 pandemic, the matter was not ultimately rescheduled to be heard until December 18, 2020, i.e., 11 months after the original hearing (it apparently came before the Board in June but was again adjourned). The hearing was to be conducted by telephone/videoconference.

Events leading up to the December 18, 2020 hearing and the ltb’s eviction order

[14] On December 7, 2020 the Tenant requested, via email, the Landlord’s consent to reschedule the hearing due to alleged medical reasons. The Landlord’s representative, a paralegal, did not consent to the rescheduling request. Again on December 14, 2020, with a copy to the LTB, the Tenant requested the Landlord’s consent to an adjournment. Again, the Landlord declined. No supporting medical documentation was provided with these requests.

[15] On December 16, the Tenant communicated with the LTB, again seeking an adjournment. The Tenant s request was considered by Duty Member Mathers and the request was denied – an administrative rescheduling order could not be made as the request to reschedule was not on consent. In Member Mather’s December 17 endorsement, the Tenant was ordered to attend the hearing (on December 18, 2020), or to have a representative attend on the Tenant’s behalf, to make the request for rescheduling/adjournment to the presiding member at the hearing.

[16] Neither the Tenant nor a representative appeared at the December 18 hearing. Despite the fact that no one came to represent the Tenant at the hearing, Member Brkic raised the Tenant’s request to reschedule as a preliminary matter. The presiding member read the Tenant’s request (which claimed the Tenant was on a medical leave because she was seriously ill and was unavailable to attend the December 18 hearing). Further, Member Brkic considered the Tenant’s statement that she had included medical documentation with her request to support her claim of illness and inability to attend the hearing. Member Brkic confirmed that another document, an email dated December 17, 2020, was submitted to support the Tenant’s claim, but that email was one the Tenant wrote herself, about herself. Member Brkic confirmed that the file contained no evidence from an arms-length party who would have medical knowledge of the Tenant s condition (such as a doctor, or a hospital).

[17] The presiding member considered: that the hearing was not in person but by telephone or video link; the long list of scheduled hearings and adjournments since the first hearing had been scheduled for October 30, 2019; the lack of supporting documentation as to the Tenant’s medical impairment; the fact that by submitting a request to reschedule the Tenant had acknowledged she was aware of the scheduled hearing date; and, the fact that, contrary to the order of Member Mather, the Tenant had not arranged for a representative to appear on her behalf to speak to the matter. Based on these considerations, Member Brkic determined that the Tenant’s request for a rescheduling or adjournment should be denied.

[18] Member Brkic then proceeded to hear the merits of the Landlord’s application on an uncontested basis. The LTB heard viva voce testimony from the Landlord concerning the assaults and threats of bodily harm to which the Landlord had been subjected. Based on this testimony, the LTB concluded, as noted earlier, that the assaults and threats by the Tenant against her Landlord were “extremely serious” in nature, that they “cannot be allowed to continue” and that “the tenancy needs to end.” The LTB terminated the tenancy, ordered the Tenant to vacate the rental unit by January 15, 2021, and directed the Sheriff, if the Tenant did not move out as ordered, to “expedite the enforcement” of the eviction order, notwithstanding the moratorium then outstanding.

[19] The date for the hearing of the current motions was set for Thursday, February 11 at 2:00 PM by order of Favreau J. at a case management conference. At the commencement of the hearing on February 11, the Tenant sought an adjournment because her phone had “died”. She called into the video conference hearing on a phone borrowed from a stranger which, the Tenant said, she could only use for a few minutes. Over the Landlord’s strong objection, I granted the Tenant’s request for an adjournment to Monday, February 15, 2021 at 10:00 AM. The hearing proceeded by teleconference with all parties present without further incident at that time.

analysis

[20] The Tenant’s notice of appeal is prolix and much of the content is devoted to arguing the merits of her defences to the Landlord’s application and the merits of her own applications but, in essence, the appeal is founded on two grounds:

(1) the Tenant was denied procedural fairness because the LTB denied her request for an adjournment and proceeded in her absence with the Landlord’s application, thereby depriving her of the right to be heard; and

(2) the Tenant was denied natural justice because the LTB dealt with the Landlord’s application to terminate the tenancy but did not deal with the Tenant’s application for rent abatement and other relief based on allegations of Landlord misconduct such as harassment, interference, illegal entry and failure to maintain.

Should the Appeal be Quashed and the Stay Lifted?

Is the Appeal an Abuse of Process?

[21] The relevant history of this proceeding includes:

(i) the Landlord’s parallel application for termination of tenancy based on nonpayment of rent;

(ii) the Tenant’s previous harrassment applications (both of which were dismissed for non-attendance at a LTB hearing);

(iii) multiple adjournments sought by the Tenant;

(iv) the Tenant’s failure to comply with the LTB’s March 25, 2019 Order to pay rent to Landlord;

(v) the Tenant’s lengthy and persistent failure to comply (with the exception of November and December) with the Interim Order of November 4, 2019 to pay rent in trust to the LTB (with accumulated unpaid arrears of rent now in excess of $10,000)[^1]; and

(vi) the Tenant’s failure to appear on December 18, in spite of being directed to do so by the LTB’s order of December 17.

[22] It also seems highly likely, given the Tenant’s circumstances, that she does not have the means to make good on substantial arrears if they are found by the LTB to be due and owing.

[23] A tenant is not entitled to live rent free pending an appeal: Sivakova v. Timbercreek Asset Management, 2016 ONSC 281 at para. 4. It is well established that persistent and ongoing failure to pay rent will ground the conclusion that an appeal (and the associated automatic stay of enforcement) is being used as a means of enabling the tenant to continue to live rent free and, therefore, constitutes an abuse of process: Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.) at para. 4; Solomon v Levy, 2015 ONSC 2556.

[24] All of these factors, taken together, lead inexorably to the conclusion that the appeal has been brought for the purpose of delaying eviction and continuing to live in the rental unit without paying rent. For these reasons, I conclude that the appeal is an abuse of process and must be quashed on this ground alone.

Is the Appeal Manifestly Devoid of Merit?

[25] Under s. 210 of the Residential Tenancies Act, an appeal lies to the Divisional Court from an order of the LTB “only on a question of law.” The distinction between questions of law, fact, and mixed fact and law was stated by Iacobucci J. in Canada (Director of Investigation & Research) v. Southam Inc.:

Briefly stated, questions 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.

[26] Where a tenant appeals an order of the LTB on a question of fact or of mixed fact and law, the Divisional Court does not have the jurisdiction to hear the appeal.

[27] The authority to adjourn hearings is found in Rule 26 of the LTB’s Rules of Procedure. This, in turn, is authorized by s. 21 of the Statutory Powers Procedure Act, which provides that:

A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

[28] The SPPA also provides for proceedings in the absence of a party, in s. 7:

Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

[29] An administrative tribunal such as the LTB enjoys a wide latitude in deciding whether to grant or refuse an adjournment of a scheduled hearing. The decision is discretionary and the scope for judicial intervention is correspondingly limited: Flamboro Downs Holdings Ltd. v. I.B. of T.C.W. & H. of A., Local 879 (Div. Ct.).

[30] When considering a request for an adjournment, an LTB member must take into account the public interest in resolving a case as expeditiously as possible while balancing the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing. Member Brkic assessed these factors in the December 29 decision. This included the Tenant’s failure to appear, or to have a representative attend, as required by the earlier administrative order of the LTB on December 17, 2020. There was ample basis in the record to support the Member Brkic’s decision to deny the Tenant’s adjournment request. There was no denial of procedural fairness.

[31] However, in her affidavit sworn February 8, 2021, the Tenant attached, as Exhibit A, a document entitled “Sick Note” from North Park Medical Centre. The document is undated but refers to the Tenant having been at the Centre on December 12, 2020. The Note “certifies” that the Tenant was “unable to work and/or attend school due to medical reasons” from December 12 to December 30, 2020.[^2] The Tenant says this document was provided to the LTB on December 15 and that it was contained in the LTB file. The Tenant argues that the LTB erred in concluding that there was no objective, third party evidence of a need for an adjournment on medical grounds because, she says, the LTB had the Note and ignored it.

[32] The evidence is that this Note was at no time provided to the Landlord until the Tenant’s affidavit was served in February 2021. Further, there is no documentary evidence to support the claim that the Note was filed with the LTB. It is not referred to in the Duty Member’s December 17 endorsement denying the administrative adjournment request. Further, the assertion that this Note was “in the file” is directly contradicted by Member Brkic’s express finding of fact in the December 29, 2020 decision.

[33] Whether the Note was filed, whether it was or ought to have been brought to Member Brkic’s attention, and what, if any, weight ought to have been given to the Note, are all pure questions of fact. More importantly, the Tenant had the opportunity to put the evidence of the Note squarely before Member Brkic on December 18, as directed by the LTB on December 17, but declined to do so.

[34] In the circumstances, it cannot be said that, by denying the Tenants’ request for an adjournment, the LTB conducted itself in an arbitrary fashion or denied the Tenant’s right to procedural fairness. There was ample reason for the LTB’s refusal to further delay the hearing of the Landlord’s application. The Tenant’s appeal from the December 29 decision to deny her adjournment request and proceed with the Landlord’s application is based entirely on questions of fact or mixed fact and law in respect of which the Divisional Court has no jurisdiction. Thus, no issue of law having been raised, this ground of appeal is manifestly devoid of merit.

[35] The Tenant’s appeal based on the LTB’s alleged denial of natural justice, by hearing the Landlord’s application separately from the Tenant’s applications, is subject to exactly the same analysis. Whether to join or sever different applications is a matter of discretion with the LTB under its Rules. The LTB did not dismiss the Tenant’s applications. But, due to her failure to appear, the LTB did not proceed with them either. There is no error of law arising out of the manner in which the Board treated the Tenant’s applications. In the absence of an error of law, this Court has no jurisdiction; the appeal on this ground is also, therefore, manifestly devoid of merit.

Should a Contempt Order Issue Against the Landlord?

[36] The allegation of contempt of court is a very serious matter requiring strict compliance with all applicable rules and preconditions. Each element of contempt must be proved beyond a reasonable doubt.

[37] Contrary to the Rules of Civil Procedure (60.11(2)), the Landlord was not personally served with the notice of motion for contempt.

[38] Further, although the changing of certain locks at the Landlord’s residence is admitted, there is conflicting evidence on whether the Landlord did so knowing she was in breach of an order of the Court. This conflicting evidence cannot be resolved on a paper record in the context of a notice of motion.

[39] Further, although the Tenant has said she was upset and inconvenienced by the Landlord’s conduct, the evidence appears to be that the Tenant was at no time actually prevented from entering her unit as a result of any locks being changed.

[40] Finally, even if I were persuaded that an order for contempt were otherwise appropriate on this record, which I am not, the issue is moot because, following the case management endorsement of Favreau J., the Landlord gave the Tenant keys to the new locks.

[41] The motion for an order finding the Landlord in contempt is therefore dismissed.

Conclusion

[42] For the reasons given above:

(a) the Landlord’s motion for an order quashing the Tenant’s appeal and lifting the statutory stay is granted;

(b) the Tenant’s motion for an order finding the Landlord in contempt is dismissed.

costs

[43] The Landlord sought partial indemnity costs of $3,200. Although I have declined to make an order of contempt against the Landlord, the attempts at self-help engaged in by the Landlord were ill-considered and contrary to the law. Because of this misconduct, I deny the Landlord’s costs request and make no order as to costs.

___________________________ Penny J.

Released: February 22, 2021

[^1]: The Tenant denied she was under any ongoing obligation to pay her rent in trust to the LTB. This is clearly wrong. Paragraph 7 of the LTB order of November 4, 2019 could not be clearer. The Tenant is ordered to “pay into the Board in trust new rent as it comes due and owing for the period commencing December 1, 2019, until this application is disposed of or the Board orders otherwise.” The application has not been disposed of and the LTB has never ordered otherwise.

[^2]: It cannot be determined who signed the Note. The Note refers to the Tenant being unable to go to work or attend school; it makes no mention of legal proceedings affecting the Tenant’s vital interest or of participation by telephone or video conference. There is no evidence the Tenant was a student or an employee. Most importantly, the Note contains no diagnosis or analysis of the Tenant’s underlying condition or symptoms which are said to give rise to the recommendation that the Tenant not go to work or to school.