Ontario Superior Court of Justice - Divisional Court

DIVISIONAL COURT FILE NO.: DC-21-449-JR DATE: 20220421

BEFORE: ACJSC McWatt, Backhouse, Sutherland JJ.

BETWEEN:

Guiseppe Bonollo and Jennie Orante Lacanienta Appellants/(Tenants)

– and –

Sivapalan Kumuthini Respondent/(Landlord)

-and -

Landlord and Tenant Board Respondent

COUNSEL:

Peter Guzina for Appellants Dennis Van Sickle for Sivapalan Kumuthini Katia Snukal for Landlord and Tenant Board

HEARD: by videoconference in Toronto on March 31, 2022

Reasons for Judgment

Backhouse J.

[1] The Appellant, Guiseppe Bonollo, brought an appeal to this court asking that the May 17, 2021 Order of the Landlord and Tenant Board (“LTB”) be set aside and a hearing be directed to review an eviction order issued April 6, 2021. The grounds relied on were that the Appellant was denied a fair hearing and was not given an opportunity to be heard on the issues raised on the review.

[2] The Notice of Appeal was amended on March 11, 2022 to add Jennie Orante Lacanienta as one of the Appellants. The grounds were extended to include that Jennie Orante Lacanienta, a tenant on the lease, was not named in the ex parte eviction order which was a breach of natural justice and therefore the order should be “dismissed” or alternatively remitted back to the LTB. This was the ground relied upon at the hearing.

Facts

[3] Giuseppe Bonollo and his spouse, Jennie Orante Lacanienta are the named tenants on a lease of premises at 8440 Martin Grove Road, Woodbridge, Ontario where they have resided since March 19, 2019. The tenants live there with two elderly relatives of Ms. Lacanienta.

[4] The landlord applied for an eviction order against both tenants for non-payment of rent. Only one of the tenants, Giuseppe Bonollo, attended the hearing. A consent order was entered into on January 22, 2021 by Mr. Bonollo acting for both tenants which provided that the tenants agreed to make certain rental payments, failing which the landlord could make an ex parte application for an eviction order.

[5] The uncontested evidence was that the agreed upon payments were not made and the landlord brought an L4 ex parte application for an eviction order. That application named only one of the tenants, Giuseppe Bonollo, which the Appellants conceded was a clerical error. On February 11, 2021, the LTB ordered the tenancy terminated.

[6] Mr. Bonollo moved before the LTB to set aside the ex parte order on the basis that the landlord had failed to apply within 30 days of a breach of an order. Mr. Bonollo did not name his co-tenant in this motion and did not raise the matter of the eviction order not naming Ms. Lacanienta. His motion resulted in an order staying the February 11, 2021 order until the motion was heard. The motion was dismissed on April 6, 2021. The LTB rejected that the Landlord’s L4 application was out of time and determined that it would be unfair to set aside the eviction order but delayed the lifting of the stay of eviction by several weeks.

[7] On May 5, 2021, Mr. Bonollo requested a review of the denial of the set aside motion. Again, Mr. Bonollo did not name his co-tenant in this review request and did not raise the matter of the eviction order not naming Ms. Lacanienta. On May 17, 2021, the review request was denied without a hearing, the LTB determining that the tenant had not established a reasonable basis for a finding that the order contained a serious error or that a serious error occurred in the proceeding.

[8] On May 31, 2021, Mr. Bonollo filed a Notice of Appeal with this court. On June 7, 2021, this court issued a certificate of stay in respect of the eviction pending the appeal being heard.

[9] On February 3, 2022, the tenants paid the rent arrears. On February 8, 2022, Mr. Bonollo filed a motion before the LTB to void the eviction order on the basis that he had brought his arrears to a zero balance. Again, the matter of Ms. Lacanienta not having been named in the eviction order was not raised. The motion was denied by the LTB on February 15, 2022 on the ground that the Residential Tenancies Act, 2006, S.O. 2006 Chap.17 does not permit such a motion where the eviction arises from the breach of a term in a conditional order.

Analysis

[10] In all of the above described proceedings before the LTB including those initiated by Mr. Bonollo, Mr. Bonollo acted on behalf of both tenants. At no time prior to a few weeks ago did he advise the LTB or the landlord that the tenants were relying on Ms. Lacanienta not being named in the eviction order.

[11] The landlord’s Notice of Termination application for non-payment of rent named both tenants. Thus, Ms. Lacanienta was served with and therefore had notice of the eviction application. Mr. Bonollo then entered into an agreement on behalf of both tenants to make certain payments. It is not submitted that Ms. Lacanienta was unaware of the eviction proceedings or the January 22, 2021 order to pay that Mr. Bonollo entered into on her behalf. Upon default in paying the rent, there was no right on the part of either tenant to notice of the L4 ex parte eviction application. It is conceded by the Appellants that leaving off Ms. Lacanienta’s name as a tenant from the L4 application was most likely a clerical error. This omission was continued in the eviction order.

[12] It is not submitted that Ms. Lacanienta was not aware of the eviction order which ensued from the ex parte application. Indeed, the Appellants’ evidence is that they only noticed a few weeks ago that Ms. Lacanienta’s name was not on the eviction order. It was not submitted that there were any proceedings in regard to the eviction order which Ms. Lacanienta would have brought that were not brought by Mr. Bonollo. There is no merit to the submission made on behalf of Ms. Lacanienta that she was denied due process by the mistake.

[13] Counsel for the Landlord and Tenant Board submitted that it was appropriate for this court to correct the order to add Ms. Lacanient’s name to the eviction order. I agree.

[14] There is no merit to the submission that Ms. Lacanienta was denied a fair hearing and was not given an opportunity to be heard on the issues raised on the review. The appeal is dismissed. An order will issue amending the LTB orders of February 11, 2021, April 6, 2021, May 17, 2021 and February 15, 2022 to add the name of Jennie Orante Lacanienta nunc pro tunc.

[15] In accordance with the parties’ agreement, there shall be no order as to costs.

Backhouse J.

I agree
ACJSC McWatt J.

Released: April 21, 2022

I agree
Sutherland J.

CITATION: Bonollo v. Kumuthini 2022 ONSC 2227

DIVISIONAL COURT FILE NO.: DC-21-449-JR

DATE: 20220421

BETWEEN:

Guiseppe Bonollo and Jennie Orante Lacanienta Appellants

– and –

Sivapalan Kumuthini Respondent

-and -

Landlord and Tenant Board Respondent

REASONS FOR JUDGMENT

Backhouse, J.

Released: April 21, 2022