CITATION: Weiss v. 3501973 Canada Inc., 2021 ONSC 5547

DIVISIONAL COURT FILE NO.: 206/20

DATE: 20210816

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Kristjanson and Matheson JJ.

BETWEEN:

EDWIN WEISS

Appellant/Tenant

– and –

3501973 CANADA INC. o/a HAZELTON PLACE RETIREMENT RESIDENCE

Respondent/Landlord

– and –

LANDLORD AND TENANT BOARD

David Sischy for the Appellant

Lissa Corrente and Emily Dubis for the Respondent

Linda Naidoo for the Landlord and Tenant Board

HEARD: August 12, 2021

ENDORSEMENT

kristjanson j.

[1] This is a statutory appeal from the August 5, 2020 decision of the Landlord and Tenant Board (“LTB”). Mr. Weiss has been a tenant at the retirement residence operated by the Respondent Landlord (“Hazelton”) for over five years. Following a hearing, the LTB ordered that Mr. Weiss’ tenancy be terminated as of October 31, 2020 because he substantially interfered with the reasonable enjoyment of the residential complex.

[2] At the conclusion of the appeal we informed the parties that the appeal was dismissed; these are the reasons for that decision. There is no reviewable error of law in the LTB’s decision, and there was no failure of procedural fairness in the process.

Jurisdiction and Standard of Review

[3] The Divisional Court has jurisdiction to hear this appeal under s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). A party to an order issued by the Board may appeal to this Court, but only on a question of law. The statutory appeal is subject to appellate standards of review established in Housen v. Nikolaisen, 2002 SCC 33: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37. The standard of review on a question of law is correctness.

[4] There is no standard of review on issues of procedural fairness: the question is whether in the circumstances the appropriate level of procedural fairness was afforded by the administrative decision-maker: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817 at paras. 21-27.

Background

[5] Mr. Weiss is 85 years old. He entered into a tenancy agreement with Hazelton, a Toronto-based retirement residence, in July 2015.

[6] Hazelton served Mr. Weiss with a N5 notice of termination (“first N5”) on April 29, 2019. Hazelton alleged that from January 2017 to April 27, 2019, Mr. Weiss substantially interfered with the reasonable enjoyment of the residential complex. Most of the allegations concerned Mr. Weiss being abrasive and abusive to Hazelton’s staff orally and by email.

[7] This N5 gave Mr. Weiss the opportunity to void the notice if he corrected his conduct within seven days. There is no evidence that the alleged conduct continued in this seven-day period.

[8] Hazelton issued another N5 notice of termination (“second N5”) on October 22, 2019. The second N5 was not voidable because it was served within six months of the first. Hazelton alleged that after the first N5, from August 2019 to October 21, 2019, the poor conduct constituting substantial interference continued. The allegations involved abrasive and abusive behaviour directed towards Hazelton’s staff as well as to other residents.

[9] Hazelton applied to the LTB for an order to terminate the tenancy and evict Mr. Weiss due to substantial interference of reasonable enjoyment under s. 64 of the RTA. There was an oral hearing held before Member Lang of the LTB on March 12, 2020.

[10] The LTB found that Mr. Weiss had substantially interfered with the reasonable enjoyment of the residence leading up to the first N5 by sending “demeaning” and “insulting” emails to the residence’s staff. The first N5 was thus justified. However, because Hazelton did not provide evidence that substantial interference continued in the seven-day period after the first N5, the LTB held that the first N5 was voided.

[11] On the second N5, the LTB held on a balance of probabilities that Mr. Weiss had called Hazelton staff “incompetent”. Further, Mr. Weiss had called one staff member “stupid” and a tenant a “fat ass person”. The LTB made findings of credibility and assessed the evidence. The LTB found that this conduct was a pattern and substantially interfered with the reasonable enjoyment of the premises by tenants and the landlord.

[12] Mr. Weiss submitted before the LTB that the proceedings were retaliatory because he had filed a complaint against Hazelton in June 2019, which was later dismissed by the Retirement Homes Regulatory Authority. The LTB concluded based on the evidentiary record that this was not the motivation of the application. Hazelton served the first N5 before the complaint was made. Moreover, the LTB found the allegations made by Hazelton to be legitimate. The LTB did not apply s. 83(3)(c) of the RTA – which requires the LTB to refuse eviction when the application is brought because the tenant is pursuing their legal rights – for this reason.

[13] The LTB acknowledged the warning given to Mr. Weiss, his continued inappropriate behaviour, and his lack of remorse. The LTB further noted that given Mr. Weiss’ rent, he should not have difficulties finding other accommodations. Nevertheless, given his age and restrictions in place due to COVID-19, the LTB postponed the eviction until October 31, 2020. The LTB ordered that Mr. Weiss’ tenancy be terminated; he pay Hazelton $190.00 plus interest for the cost of filing an application; Hazelton be allowed to file the Decision with the Court Enforcement Office to enforce the eviction; and the Court Enforcement Office give vacant possession of the unit to Hazelton on or after November 1, 2020.

[14] Mr. Weiss filed a Notice of Appeal on September 2, 2020.

Issues and Analysis

[15] Mr. Weiss raises the following issues on appeal:

(1) Did the LTB err in law by finding that Mr. Weiss substantially interfered with the reasonable enjoyment of the premises in a manner that justified eviction?

(2) Was the hearing procedurally unfair because:

(a) The LTB prevented or “actively discouraged” Mr. Weiss from calling evidence that a complaint made to a regulator led to issuance of the second N5 as retaliation?

(b) The LTB prevented Mr. Weiss from calling a character witness?

(c) The LTB made a finding that some of the conduct in the first N5 constituted substantial interference, without allowing submissions from counsel for Mr. Weiss?

(3) Did the LTB err in law in failing to properly consider the impact of the COVID-19 pandemic on Mr. Weiss when ordering eviction?

Issue #1: No Question of Law

[16] Mr. Weiss argues that the LTB err in law in holding that Mr. Weiss’ conduct constituted substantial interference, in that the Member failed to consider and assess whether the facts as found by the LTB rose to the level of substantial interference. This was alternatively phrased as a failure in the reasoning process, or a failure to provide adequate reasons clearly articulating why the conduct as found constituted “substantial interference.”

[17] There was no error of law in the LTB’s formulation of the applicable legal test. The real complaint is with the application of this test to the facts. This, however, is not a question of law but a question of mixed fact and law and is, therefore, not subject to appeal under the RTA. This court does not reweigh and reassess the evidence. There was evidence to support every finding of fact made by the LTB, which had the opportunity to see and hear all the witnesses in person, assess credibility, and make these factual findings.

[18] Given the nature of the conduct found by the LTB, there was no requirement to further articulate or explain why the conduct was found to substantially interfere. Reasons are not held to a standard of perfection. The assessment as to whether such conduct rises to a level of substantial interference involves applying the straightforward legal standard to the simple facts. The reasoning path is clear, and clearly supported by the evidence. There is no reviewable error.

Issue #2: No Procedural Unfairness

[19] Mr. Weiss argues that the LTB’s hearing was procedurally unfair. I do not agree. The LTB is entitled to exercise discretion to proceed in the most expeditious way, while ensuring the right to be heard, according to s. 183 of the RTA. The LTB has discretion to limit evidence or refuse irrelevant evidence: section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[20] In oral argument, counsel for Mr. Weiss argued that the LTB “actively discouraged” Mr. Weiss from calling evidence to establish that the second N5 was issued as retaliation for a complaint Mr. Weiss filed with the Retirement Home Regulatory Authority. The LTB expressed concern about the time that would be required and offered to adjourn the matter. Counsel for Mr. Weiss declined the adjournment. The LTB was faced with a heavy docket and was encouraging the parties to focus on the key issues as part of its ability to control its own process. “Active discouragement” is not a breach of procedural fairness; the LTB offered an adjournment and counsel declined.

[21] The second argument is that the LTB prevented Mr. Weiss from calling a character witness. The transcript indicates that the LTB Member advised that the hearing was scheduled for only half a day and she was not going to have a lot of time for character witnesses. Mr. Weiss did not request an adjournment or an extension of time. Mr. Weiss was not prevented from calling the character witness; his counsel did not attempt to do so. In any event, the evidence is irrelevant. Character evidence is generally inadmissible in civil cases, if tendered to prove or disprove whether a party is the sort of person who would commit the alleged act or to bolster credibility. There is no right to call character witnesses, and it was within the LTB’s discretion to exclude the evidence.

[22] The third argument is that the LTB denied procedural fairness in adopting an expedited process, based solely on uncontested emails, to determine that the conduct which was the subject of the first N5 constituted substantial interference, and that the hearing on the second N5 could thus proceed. Mr. Weiss argues that it was procedurally unfair to make that finding in the absence of full submissions from Mr. Weiss’ counsel. At the hearing, the LTB noted that the Tenant conceded that the correspondence to which the N5 notice referred was accurately recorded in the notice.

[23] All that was necessary, as a matter of law, was for the Member to find one instance of prior substantial interference in the first N5. The LTB determined that it would do this based on emails which counsel conceded were sent by Mr. Weiss. Those emails on their face were, as the LTB found, “demeaning and insulting emails to the Landlord's staff.” Mr. Weiss’ counsel made her arguments; the LTB did not accept them. There was no denial of procedural fairness.

Issue #3: No Error in Eviction During Pandemic

[24] In his factum, Mr. Weiss argues that the eviction of an 85-year-old cancer survivor with health issues in the middle of the COVID-19 pandemic and in the context of “thin grounds” for eviction is unconscionable. While the moratorium on evictions had ended by the time the LTB released its decision, the evolving COVID-19 pandemic should lead the LTB or Court to read the moratorium more broadly as extending past this time, and the LTB erred in law by failing to consider all of the circumstances of the case, including the COVID-19 pandemic. I do not agree.

[25] The LTB carefully considered all of the circumstances and concluded that it would not be unfair to postpone the eviction until October 31, 2020 pursuant to subsection 83(1)(b) of the RTA. These circumstances included what the LTB found to be the persistent rude and insulting conduct to another tenant and to the staff which the LTB found to be “creating a poisoned work environment for the Landlord's staff.”

[26] Hazelton submits that the LTB’s finding that Mr. Weiss would be able to secure suitable alternative accommodations despite his age, compromised health, and the ongoing pandemic is a clear question of fact and not reviewable: I agree.

[27] In any event, the moratorium on evictions had ended by the time the LTB made its decision and as such, it was within the LTB’s power to order the eviction. The LTB considered COVID-19 in coming to its decision and appropriately postponed the eviction to give Mr. Weiss sufficient time to find new accommodations. The LTB gave Mr. Weiss 60 days to leave his apartment; by virtue of the delay associated with this appeal, Mr. Weiss has had an additional 9 months and 13 days of occupancy. He will now have an additional 90 days, meaning he will have had over one year to secure accommodations since the original LTB Order.

Conclusion

[28] For these reasons, the appeal is dismissed. Mr. Weiss shall have 90 days, commencing August 12, 2021, to vacate his unit, as agreed between the parties.

[29] Costs are awarded to the Respondent Hazelton in the amount of $15,000.00 inclusive, as agreed between the parties, payable within 60 days.

Kristjanson J.

I agree _______________________________

D.L. Corbett J.

I agree _______________________________

Matheson J.

Effective Date of Decision: August 12, 2021

Date of Release of Reasons: August 16, 2021