Court File and Parties
CITATION: Porringa v. Everitt and Lundy, 2021 ONSC 70
COURT FILE NO.: DC-20-2600
DATE: 2021/01/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Ralph Mark Porringa Applicant (Appellant)
– and –
Steven Everitt Respondent (Respondent in the Appeal)
Self-represented Appellant
Samir Nawaz for the Respondent, Landlord
Kevin Lundy Respondent (Respondent in the Appeal)
HEARD via videoconference: October 29, 2020
Reasons for Decision
O’BONSAWIN J.
[1] Mr. Everitt (“the Landlord”) moves to quash the appeal of Mr. Porringa 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] The Landlord owns the property municipally known as 33215 Highway 17 West, Deep River, Ontario (the “Premises”). He purchased it in 1993.
[4] In either late 2000 or early 2001, the Landlord entered into a rental agreement with Mr. Everick. The latter and his family resided in the Premises until he and his wife separated in 2012. He continued to reside in the Premises after the separation.
[5] In March 2019, the Landlord approached Mr. Everick and advised him that he sought to end the tenancy. In return, Mr. Everick asked for a formal letter to confirm the end of the tenancy. As a result, the Landlord provided a letter dated July 31, 2019. The Landlord wanted to renovate the property and there was no required timeline for completion. On July 30, 2019, the Landlord asked Mr. Everick about moving out. Mr. Everick refused to move out and responded that the Landlord should have given him a proper tenancy form from the Landlord and Tenant Board (“the Board”). On the same date, the Landlord provided Mr. Everick with Board documentation to move out of the Premises. The Landlord wanted to use the Premises as an extension of his business.
[6] The Landlord applied to the Board to terminate the tenancy and evict Mr. Everick. On November 22, 2019, a hearing took place and the Board terminated the tenancy effective May 1, 2020. At that time, the Landlord was not aware that Mr. Porringa resided on the Premises.
[7] On April 7, 2020, the Landlord received a letter from Mr. Porringa claiming to be Mr. Everick’s roommate. Mr. Porringa advised the Landlord that he refused to move out of the Premises and sought to remain. The Landlord responded that there was no possibility for Mr. Porringa to remain in the Premises because he intended to convert it into a commercial extension of his business.
[8] The Landlord did not enter into a tenancy agreement with Mr. Porringa.
[9] On June 24, 2020, the Landlord applied to the Board for an urgent motion. A hearing took place on July 10, 2020. The Board heard the Landlord’s application to terminate Mr. Porringa’s tenancy because the Landlord did not consent to the assignment or sublet the tenancy and for compensation for the use of the Premises.
Finding of the Board
[10] The Board issued an Order dated July 28, 2020. The Board noted that the tenancy between the Landlord and Mr. Everick terminated on May 1, 2020 pursuant to an Order of the Board issued on November 22, 2019. The Board further ordered that Mr. Porringa, an unauthorized occupant, “shall move out of the rental unit on or before August 8, 2020”. The Board also ordered Mr. Porringa to pay the Landlord the amount of $1,724.38 as compensation for use of the unit from May 2, 2020 to July 27, 2020 and an additional $19.73 per day for compensation for the use of the unit from July 28, 2020 until the date that he moves out of the Premises. The Board made a few other additional Orders.
[11] Mr. Porringa requested a review of the Order on the grounds that there was a serious error and that he was not able to reasonably participate in the proceeding. On August 7, 2020, the Board denied the request to review. Mr. Porringa filed his Notice of Appeal with this court on August 7, 2020. On September 8, 2020, Mr. Porringa received a stay of the Board’s Order dated July 28, 2020.
Issue
[12] Should this court quash Mr. Porringa’s appeal?
Position of the Parties
[13] The Landlord argues that Mr. Porringa’s appeal ought to be quashed as it is devoid of merit, there is no genuine issue for appeal and it is frivolous and an abuse of process. In addition, the Landlord submits that Mr. Porringa’s appeal is in violation of s. 210(1) of the RTA as it raises no question of law and he has not perfected his appeal within 30 days after filing his Notice of Appeal. Consequently, Mr. Porringa’s appeal should be dismissed as per r. 61.13(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[14] Mr. Porringa argues that his appeal has merit and he opposes the automatic stay of the Board’s Order being lifted since it is the only recourse he has for having unjustly suffered at the hands of the Board. Staying in his home is a very important aspect of his appeal. With regard to the perfection of his appeal, Mr. Porringa advises that he has ordered the transcripts that will show the criminality of the Board member, Mr. Lundy, and his colleagues at the Board. He has 60 days from the receipt of the transcripts to perfect his appeal as per r. 61.09(1)(b) of the Rules of Civil Procedure. Lastly, Mr. Porringa submits that the Landlord owes him in excess of $100,000 in lost income and punitive damages.
Analysis
[15] Section 210(1) of the RTA notes that an appeal from a decision of the Board is to be determined by the Divisional Court. However, the appeal can only be on a question of law. The bar to quash an appeal is generally high. On the basis that it is devoid of merit, it is appropriate to quash an appeal from an Order of the Board where the appeal does not raise a question of law: 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: Meglis, at para. 31.
[16] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, deals with a court’s power to quash an appeal. It states as follows: “On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.”
[17] Rule 61.09(1) of the Rules of Civil Procedure deals with perfecting an appeal. It states as follows:
The appellant shall perfect the appeal by complying with subrules (2) and (3),
(a) where no transcript of evidence is required for the appeal, within thirty days after filing the notice of appeal; or
(b) where a transcript of evidence is required for the appeal, within 60 days after receiving notice that the evidence has been transcribed.
[18] The respondent may file a motion for dismissal for delay in accordance with r. 61.13. This rule states:
(1) Where an appellant has not,
(a) filed proof that a transcript of evidence that the parties have not agreed to omit was ordered within the time prescribed by subrule 61.05 (5); or
(b) perfected the appeal within the time prescribed by subrule 61.09 (1),
the respondent may make a motion to the Registrar, on ten days notice to the appellant, to have the appeal dismissed for delay.
[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.”
[20] In Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at p. 3, 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] In Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at para. 32, 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.”
[22] I turn to a review of this matter. I have reviewed the grounds of Mr. Porringa’s appeal and they are as follows:
The Board acted outside the jurisdiction as provided by the RTA.
Mr. Porringa has been trying to negotiate a lease since April 7, 2020 and the Landlord has refused to negotiate fairly and in good faith as is required of any service provider in accordance with the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). As an existing legal occupant, Mr. Porringa deserves special consideration and respect in such negotiations; however, he has received neither of these things.
The Board’s Order is full of serious errors and misrepresentations indicating a premeditated reprisal against Mr. Porringa for his frequent and strong criticism of the dismissive legislation of the RTA and the judgments of the Board that systemically deprive many impoverished Canadians of any legislated protection of their residential and other rights.
The Board wrongly and prejudicially used urgent and severe emergency powers and attempted to bypass the required motion to the Superior Court of Justice without any substantial evidence. The Board accused Mr. Porringa of threatening to assault someone when he only stated that he would defend himself with appropriate force if anyone tried to break into his home/office which is within his rights.
The Board committed serious procedural infractions that appear to involve fraud, misrepresentation and other manipulations of the telephone hearing that were intended from the outset to defraud Mr. Porringa of a fair and impartial judgment in order to accomplish the predetermined outcome of having him evicted on an urgent basis, despite the pandemic and with no consideration of his age or health issues.
The Board used deceptive talk of mediation to convince Mr. Porringa to discontinue his defence with his understanding that a mediator would shortly be appointed. An amicable resolution was impossible given that the Landlord refused to communicate with Mr. Porringa in any manner whatsoever. The Landlord was also a party to this deception because he had no intention of submitting to mediation.
The Board knew almost every detail of the escalating conflict between Mr. Porringa and the Landlord, but chose not to intervene for over six weeks. Instead, the Board waited for Mr. Porringa to break the law under duress in order for a “local remedy” to be justifiably initiated to have him removed from his home and to allow the Landlord to seize the rental unit. The Board failed miserably in its preferred role as a mediator of residential disputes and cannot be permitted to continue in its judicial role in this matter.
The Board also discriminated against Mr. Porringa by depriving him of fair and impartial representation regarding the eviction proceedings EAL-86360-19 that directly affected his residential occupancy contrary to s. 2 of the Code. His eviction without representation or due process, including written notice, affected Mr. Porringa’s rights in very substantial ways.
[23] Section 210(1) of the RTA is clear that an appeal from a decision of the Board can only be on a question of law. Grounds 3-8 do not disclose a question of law: they disclose questions of either fact or mixed fact and law. Grounds 1 and 2 may disclose a question of law.
[24] I will review whether Mr. Porringa’s grounds 1 and 2 are “devoid of merit” as argued by the Landlord. Mr. Porringa argues that the Board acted outside the jurisdiction provided by the RTA. It is his position that his appeal is also applicable to a great many other Canadians who have been effectively stripped of any legislated residential and other rights by being systematically ignored by the negligent legislators of the RTA. The RTA is fundamentally unconstitutional and in clear violation of s. 7 (right to life, liberty and security of the person), s. 8 (right against unreasonable search or seizure), s. 12 (right not to be subjected to any cruel and unusual treatment or punishment), s. 15 (right to equality under the law and equal protection and benefit of the law) and s. 24 (enforcement of guaranteed rights and freedoms) of the Canadian Charter of Rights and Freedoms and the RTA should be of no force or effect since it is inconsistent with the Constitution of Canada (Constitution Act, 1982, s. 52(1) – primacy of the Constitution of Canada). The RTA should provide residential rights for all Canadians, not just those with formal tenancy agreements.
[25] Mr. Porringa also submits that the Board refused to give any consideration to the Code which does not allow discrimination in the “occupancy” of a shared residence provided that the kitchen and bathroom facilities are not shared. More specifically, Mr. Porringa cites s. 8 of the Code (right to claim and enforce rights under the Code without reprisal or threat of reprisal for so doing). Mr. Porringa refers to himself and others as a “secondary tenants” who live under constant discrimination from the threat of reprisal as per s. 8 of the Code against their most basic rights from “pseudo-landlords” who do not have any legislated obligations to treat their “tenants” with appropriate respect and dignity. Therefore, this constitutes a threat to the security of their person as per s. 7 of the Charter and an obvious example of cruel and unusual punishment as per s. 12 of the Charter.
[26] Lastly, Mr. Porringa argues that he occupied the finished lower level of the house living entirely separate and the Landlord was obligated to include Mr. Porringa in his eviction action along with Mr. Everick and he intentionally chose not to do so, which has certainly had major implications for Mr. Porringa’s occupancy. Furthermore, it is Mr. Porringa’s position that it should not have been permitted by the RTA for the Board to exclude him from Mr. Everick’s eviction proceedings because the latter had already decided to consent to the eviction.
[27] A “tenant” is defined in s. 2(1) of the RTA as:
a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,
(a) a co-owner of the residential complex in which the rental unit is located, or
(b) a shareholder of a corporation that owns the residential complex; (“locataire”).
Mr. Porringa concedes in his Factum and in his evidence that he is not a “tenant” as defined by the RTA. It therefore remains that Mr. Porringa is an “unauthorized occupant” as stated in the Board Order. He adds that he is an elderly man with underlying health conditions and tight finances. Furthermore, he often remarks about the criminality of the Board member, Mr. Lundy, and his colleagues. In his Factum, for example, Mr. Porringa puts forward conspiracy theories that the audio recordings of the hearing have been edited or tampered with, that the Landlord and the Board unethically and illegally interfered with Mr. Porringa’s request for transcripts of the recorded telephone hearing and that there was a disruption of his mail service where one or more local postal employees agreed to assist in the illegal activity. Mr. Porringa states in his Factum that “the [Board] must be stripped of its misused powers in this particular case and a full public inquiry into this rogue government agency is needed by judicial order”. I find that Mr. Porringa has not provided any evidence to support his claims about discrimination due to his age, his health condition and the criminality of the Board and Mr. Lundy. In addition, he has not provided any evidence that the Board misused its powers and is a “rogue government agency”. I find that Mr. Porringa has failed to show that any of his Charter rights or rights in the Code have been breached by the Landlord and/or the Board.
[28] Based on my review of the evidence provided, there is no evidence to support a breach of Mr. Porringa’s rights. His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord. It was within the Board’s jurisdiction to make the Order of July 28, 2020. I find that Mr. Porringa’s appeal is devoid of merit and I quash his appeal pursuant to s. 134(3) of the Courts of Justice Act. Given this finding, I need not address the other issues raised by the Landlord.
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;
Landlord may file the Board’s eviction Order with the Sheriff on January 15, 2021; and
Mr. Porringa is to pay the Landlord’s reasonable costs in the amount of $4,000 all inclusive. The costs are payable by Mr. Porringa to the Landlord within 30 days of today’s date.
[30] The Reasons for Decision and the Order in paragraph 30 are effective on the date they
are released. No formal Order is required.
Justice M. O’Bonsawin
Released: January 4, 2021
CITATION: Everitt v. Porringa and Lundy, 2021 ONSC 70
COURT FILE NO.: DC-20-2600
DATE: 2021/01/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ralph Mark Porringa Applicant (Appellant)
– and –
Steven Everitt Respondent (Respondent in the Appeal)
– and –
Kevin Lundy Respondent (Respondent in the Appeal)
Reasons for Decision
O’Bonsawin J.
Released: January 4, 2021