CITATION: Chevrier v. Guelph Non-Profit Housing Corporation 2022 ONSC 2372
COURT FILE NO.: DC-22-11
DATE: 2022 04 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRANDY CHEVRIER
Appellant
Self-Represented
- and -
GUELPH NON-PROFIT HOUSING CORPORATION
Respondent
S. Pillay-Dason, for the Respondent
HEARD: April 13, 2022
ENDORSEMENT
Dennison J.
Overview
[1] On September 21, 2021, the Landlord and Tenant Board ("the Board") ordered that the Tenant be evicted from her not for profit housing. She did not attend the hearing. The Tenant sought a review of the decision and argued that she was not aware of the hearing. The Board dismissed her review on January 18, 2022. The Tenant sought a review of the January 18, 2022 decision, which the Board dismissed on February 15, 2022. The Tenant filed a Notice of Appeal with the Divisional Court. The Tenant appeals the Board's decision refusing to review the Board's January 18, 2022 decision.
[2] The Respondent Landlord brings a motion to quash the Tenant's appeal and lift the stay of eviction on the basis that the appeal raises no question of law and is manifestly devoid of merit. In the alternative, the Landlord seeks an order that the Tenant pay into court an amount for security for costs of the appeal.
[3] The issue for the court to determine on this motion to quash is if any of the grounds of appeal raise an issue of law and are not devoid of merit. The Tenant raises the following issues on her appeal:
The Board erred in upholding the Board's review decision that the Tenant was able to participate at the hearing on July 7, 2021.
The Board failed to consider the Tenant's personal circumstances in determining whether the evict the Tenant or delay her eviction.
The Board and the Landlord failed to recognize and accommodate the Tenant's disabilities. In addition, the Fire Prevention Officer failed to comply with the guidelines when dealing with tenants that have hoarding or disorganization issues.
The Board failed to consider that the Landlord breached its responsibilities under the Residential Tenancies Act, 2006 S.O. 2006 c. 17 and this would provide relief from eviction. These breaches included failing to prevent other tenants from harassing and bullying the Tenant and not fixing problems with her unit, including fixing her stove.
The Landlord mislead the Tenant into believing if she remedied the fire code issues she would be permitted to stay in the unit.
[4] The Tenant represented herself on this motion. I explained the process and the legal test to be applied. The Tenant did not file affidavit evidence or any exhibits in advance of the motion. I exercised my discretion and permitted the Tenant to give viva voce evidence and to file emails she stated were relevant to the motion.
Background facts
[5] The Tenant resided at 7-780 York Road in Guelph. The Guelph Non-Profit Housing Corporation operates this complex. There are 38 rental units and the Tenant's unit was in a block of 9 townhouses.
[6] On December 3, 2020, the Respondent Landlord filed an L2 Application with the Board to evict the tenant pursuant to a N7 Notice issued against the Tenant for causing serious problems in the residential complex pursuant to the Residential Tenancies Act. The Landlord's property manager, Julie Curran, affirmed that she personally handed the N7 form to the Tenant on November 6, 2020.
[7] The N7 states that the reason for ending the tenancy is that the Tenant has seriously impaired the safety of people at the rental complex due to the fire and egress hazards within the rental unit. There were ongoing clutter issues, and the Tenant was uncooperative to the point where the Fire Department was involved and served her with two inspection Orders.
[8] The N7 states that on August 21, 2020, the Tenant received a written warning from the Landlord regarding excessive clutter on her front patio. The Landlord advised the Tenant to remove the clutter by August 28, 2020 or a termination notice may be served on her.
[9] On August 28, 2020, the Landlord attended the Tenant's unit with 24 hours notice and discovered that the clutter remained. Several attempts were made to contact the Tenant about this issue. Ultimately, the Landlord decided to call the Fire Department. Fire Prevention Officer Barry Williams and the Landlord decided to schedule a more detailed inspection of the unit for September 24, 2020.
[10] The Fire Prevention Officer and Landlord attended on September 24, 2020 to inspect the unit, having given 24 hours notice. A female was heard telling the dogs to be quiet through the rental unit door. When the Landlord and Fire Prevention Officer entered the unit, the two dogs approached them aggressively and uncontrolled. They decided not to complete the interior inspection due to the dogs. An exterior inspection was conducted.
[11] After the inspection, the Fire Prevention Officer issued an order pursuant to the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 which was served on the Tenant electronically and by mail. The reason for the order was that there were combustible materials stored outside the front and back exits to the unit that "would delay the escape or rescue of occupants if there was a fire, or medical emergency, treatment, or removal of a patient." The order required the Tenant to rectify these issues by October 1, 2020.
[12] Between September 24, and October 7, 2020 the Landlord and Fire Prevention Officer made several appointments with the Tenant to inspect the unit. The Tenant repeatedly delayed and cancelled the appointments.
[13] On October 13, 2020, the Fire Prevention Officer requested by email that the Tenant set a date for the inspection of the unit and that failure to do so would result in a warrant being obtained to complete the inspection. The inspection was scheduled for October 30, 2020.
[14] On October 30, 2020, the Fire Prevention Officer completed the inspection of the rental unit. He issued a second inspection order. The Officer found there were "serious health and safety impairment issues" caused inside and outside the rental unit. The order stated that "the Landlord may apply for lawful termination of your tenancy after serving you with this notice." The Fire Prevention Officer noted the following concerns:
a) large quantifies of materials stored throughout the home compromising all means of egress.
b) combustible materials stored in the home within a metre of the ceiling therefore not allowing for proper operation of smoke alarms.
c) combustible materials stored on top and adjacent to the range in the kitchen creating a fire hazard.
[15] The Tenant had a prior history of failing to deal with fire safety issues and property maintenance. N5 notices to end tenancy for interfering with the reasonable enjoyment of others were issued to the Tenant in May 2019 and again in February 2020. Both notices related primarily to large quantities of garbage, debris, and random items accumulated in and around the rental unit.
The hearing before the Board
[16] The L2 hearing took place before the Board on July 7, 2021. The Landlord's property manager, Julie Curran and the Fire Prevention Officer testified. The Tenant did not attend, and the matter proceeded in her absence.
[17] The Fire Prevention Officer testified that when he conducted the inspection of the rental unit on October 30, 2020, the hoarding and fire safety concerns were so significant that he felt an inspection order with a 30-day compliance requirement was necessary. When he reinspected the unit on December 3, 2020, the conditions in the inspection order had not been complied with. At that point, he decided to proceed with Part 3 charges under the Fire Prevention Act to gain compliance for the conditions of the unit. The Fire Prevention Officer provided photographs of the rental unit taken on December 3, 2020 to the Board that showed the extent of the clutter.
[18] The Fire Prevention Officer returned to the unit on June 22, 2021 at the request of the Landlord and took photographs of the unit that day. He was of the view that the unit "definitely" did not comply with the orders he issued. These photographs show extensive clutter in the unit.
[19] The Fire Prevention Officer also testified that the Tenant was not cooperative. Her correspondence was sometimes cooperative but when he would show up to inspect the unit, she would not be present, and the dogs would not allow entry. Most times he was not able to enter as she had promised in her correspondence. He also stated that he personally served the Tenant with the summons for the Fire Prevention Act charges.
[20] The Landlord's property manager, Ms. Curran also gave evidence at the hearing. She stated that on December 3rd, 2020, the Tenant agreed to sign the consent for Ms. Curran to refer the Tenant to the Acute Intervention Program (AIP). She explained that "this program supports tenants who are struggling with addiction, mental health or anyone who's at risk of losing their housing due to safety concerns." The AIP team consists of a counsellor and a support worker, who can provide flexible supports tailored to the particular situation. Ms. Curran stated that she forwarded the consent to AIP. The counsellor attempted to contact the Tenant via email, telephone, and door knocks without success for several months. The counsellor advised Ms. Curran that she closed the file on February 4, 2021 because there was no successful contact with the Tenant.
[21] The Board asked if AIP could be reengaged to help with a "soft landing" if the Board evicted the Tenant. Ms. Curran advised that if the Tenant reached out, AIP could be involved quite quickly.
[22] The Board further information about the Tenant because the Board was required to consider the Tenant's circumstances pursuant to section 83 of the Residential Tenancy Act. Ms. Curran stated that the Tenant had issues on a smaller scale where she received bylaw notices, but the Tenant worked to clean up the unit. This was the first time that the clutter had gotten this bad. Ms. Curran also advised that the Tenant had lived in the unit for six years, she has three children, two dogs and a cat.
[23] The Board also heard submissions about delaying the eviction. The Landlord's counsel submitted that the Tenant should be evicted immediately because the Tenant had already been given months to comply and ignored the urgency of the situation. The Landlord submitted that they tried to work with the Tenant to no avail and there were many other families in need of not for profit housing. The Board expressed concerns about evicting the Tenant and her children because they would likely have to live in a shelter during COVID-19. The Board reserved its decision.
[24] On September 21, 2021, the Board issued an order terminating the Tenant's tenancy as of October 21, 2021 and required the Tenant to pay $186.00 in costs as well as compensation at the rate of $6.18 per day for the use of the unit starting September 22, 2021 until the date the tenant moved out. The Sheriff could enforce the eviction as of October 22, 2021.
[25] The Board's decision reviewed the evidence heard on July 7, 2021. The Board found on the balance of probabilities that the Tenant has seriously impaired the safety of everyone in the residential complex "by keeping the unit in a cluttered condition with excessive combustible materials close to sources of ignition and by blocking the means of egress in the unit with excessive belongings." The Board found that the photographs filed at the hearing showed that the unit was in the same condition on June 23, 2021 as it was on December 3, 2020.
[26] The Board also consider the circumstances of the Tenant as provided at the hearing and stated,
I have considered all the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the Act) and find that it would not be unfair to postpone the eviction until October 21, 2021 pursuant to subsection 83(1)(b) of the Act. It is clear from the condition of the unit that the Tenant has some difficulties, likely due to a disability. The tenant has three children living in the unit. The Tenant will require time to find new housing. I note that the Tenant will have the assistance of the Acute Intervention Program. The Landlord's legal representative submitted that if the eviction date is postponed by two months or more that the Tenant will not have a sufficient sense of urgency to act promptly and appropriately to the eviction order. Based on the history as set out in the Landlord's uncontested evidence, I agree this is a valid concern and so the eviction is postponed by one month.
[27] In her affidavit, Ms. Curran advised that after the Tenant received the eviction order, the Tenant agreed to a second referral to AIP, which was made on November 2, 2021. The counsellor confirmed on December 3, 2021 that she was actively trying to engage the Tenant. On January 4, 2022 they met in person and were hoping to connect again that same week.
The review of the September 21, 2021 order
[28] The Tenant requested the Board stay the order pending a review. By interim order dated October 22, 2021 the Board stayed the September 21, 2021 order pending the Board's review.
[29] The review hearing took place on January 7, 2022. Duty counsel assisted the Tenant. They spoke to each other for over an hour prior to the review hearing. The Tenant testified that she did not receive the notice of the hearing. She stated that she checked her mail daily. The Tenant stated that when she received the N7 notice she spoke to the Landlord and understood that the Fire Prevention Act charges had to be resolved before anything would be done about her eviction. She believed that if she were not convicted of those charges and ultimately cleaned up the unit she would not be evicted.
[30] Several emails were put to the Tenant in cross-examination. The Landlord's legal counsel sent the Tenant an email on June 23, 2021 that stated:
Dear Ms. Chevrier. I am a legal representative for your landlord regarding file number SOL 18371-20 with respect to a hearing before the Landlord and Tenant Board on July 7, 2021 at 9:00 a.m. Attached please find enclosed the evidence the landlord intends to use at that hearing. The landlord is preparing to offer you an opportunity to save your tenancy through mediation. Essentially, you'll be given some additional time to comply with the fire department order. You could contact me to discuss the details or contact the Guelph and Willington Community Legal Clinic for assistance. In order to make an agreement to preserve your tenancy, you must attend the scheduled hearing on July 7, 2021. The legal clinic's website [link and telephone number attached] and if you want the assistance of the legal clinic, you should call them as soon as possible. You have two choices to participate in the hearing. One by Zoom [link attached] and two by telephone [telephone number and passcode attached]. This information is also in the notice of the hearing that you would have received in the mail. If you do not attend the hearing, the landlord will be seeking an order that would terminate your tenancy on an expedited basis.
[31] The Tenant responded on June 29, 2021, as follows,
Hi Peter, I just got your email, and I had no idea that anyone was coming to inspect last week. I am not supposed to be notified by [indiscernible]. I am confused as to why another inspection if they're already taking me to court.
[32] Counsel responded to her email and stated,
Hi. The landlord would have given you written notice to enter with the fire department. The visit was to determine if your rental unit complied with the previously issued fire department order. It does not. The bigger issue here is that you may be losing your housing. I suggest you contact the legal clinic as soon as possible as per my previous message.
[33] The Tenant stated that she did not understand that there were two separate proceedings: one for the Fire Prevention Act charges and one before the Board. She thought they were to be decided together. She agreed that she did not have any difficulty reading but stated she had difficulty understanding legal documentation. It was suggested to her that the first email was not a legal document. She then stated that she did not fully read the email. She stated that her reply demonstrated she did not understand what was taking place. The Tenant agreed that she did not contact legal aid as suggested in the email until after receiving the Board's September 21, 2021 decision.
[34] The Tenant also agreed that she received the order dated September 21, 2021 in the mail but maintained that she did not receive notice of the July 7, 2021 notice.
[35] The Board dismissed the review from the bench with reasons to follow.
[36] On January 18, 2022, the Board provided reasons dismissing the review. The Board noted that the Tenant testified she had two mailboxes for her rental unit that she checked everyday, and she never received the notice of the hearing. The Board also noted that the Tenant agreed that she was aware of the eviction proceedings and received the N7 Notice of Termination as well as the Board's September 21, 2021 order in the mail.
[37] The Board considered the Tenant's evidence that she was under the belief that the Fire Prevention Act charges had to be dealt with first. The Board also considered the emails sent to the Tenant and her explanation for not understanding that there was a hearing. After reviewing all of the evidence, the Board found that the Tenant received notice of the hearing,
I say this because the Board mailed the Notice of the Hearing to the same address for which the Board order issued on September 21, 2021 was sent. The Tenant confirmed receiving the order, and the Notice of Hearing was never returned to the Board as undelivered. Further, even if the Tenant had not received a Notice of Hearing from the Board, it is clear from the Landlord's Exhibit 1 that the Tenant was aware of the hearing. I say this because the email exchange between the parties is titled as the Board hearing date. The landlord's Representative explicitly set out in his first email the details of the hearing. The tenant's claim that she did not properly read the email is in my opinion unreasonable in these circumstances because the tenant was aware of the eviction proceedings. I am of the opinion if one is aware of eviction proceedings against them, that one would or should exercise due diligence in reading all correspondence sent to them by the party initiating the proceeding.
[38] The Board denied the request to review the order issued on September 21, 2021 and confirmed the order as unchanged. The Board cancelled the interim order issued on October 22, 2022 and lifted the stay of the eviction.
The review of the review order
[39] On February 11, 2022, the Tenant requested a review of the review order. On February 15, 2022, the Board denied the request to review the review decision. The Board confirmed the January 18, 2022 order without a hearing.
[40] The Board found that based on the submissions made in the request, the Board was not satisfied that the Board made a serious error in the review order or that a serious error occurred at the review hearing.
[41] The Board's decision declining to review the Board's review order dated January 18, 2022 noted that, the Board determined that "the Tenant had received the Board's notice of hearing and that the Landlord had also reminded the Tenant of the hearing date." The Board found that "the Tenant's decision not to read the materials rests with the Tenant and is not a reason to grant a review request." In addition, the Board mailed the notice of hearing to the Tenant on May 19, 2021 and Canada Post did not return it as undeliverable.
[42] The Board's decision upholding the previous review decision found that the Board's finding that the Tenant was aware of the July 7, 2021 hearing was supported by the evidence and the Board's decision was reasonable. "The reviewing member was in the best position to accept and consider the parties' relevant evidence and submissions and the reviewing Member's determinations are entitled to deference."
[43] The Board also considered that the Tenant did not submit transcript evidence to show that the Board denied her an opportunity to participate in the January 7, 2022 review hearing. "The review order cites the relevant evidence the parties lead and shows that the parties were able to lead evidence and make submissions in relation to the Tenant's review request." The Board found that the parties were given an adequate opportunity to know the issues and to participate in the review hearing and therefore no serious error occurred at the January 7, 2022 review hearing.
The Tenant's eviction
[44] After the Tenant's request to review the review order was denied, the Sheriff sent the Tenant a notice to vacate the premises before February 23, 2022.
[45] The Sheriff enforced the notice to vacate on February 23, 2022. Photographs were taken on the day of the eviction that showed the Tenant had still not addressed the fire hazards. These photographs were filed with the court. The photographs show that there are items on top of the range and beside the range. There are items stacked up to the ceiling and access to doors remained blocked.
[46] The Tenant was permitted at the property until 8 p.m. on February 23, 24, 25, 26, 2022. She was also permitted to attend the property on February 28, March 2, 3, 4, 2022 but had still not removed most of her possessions.
[47] On March 4, 2022, the Landlord agreed to provide assistance to remove her possession and load the truck at their own cost. The Tenant refused assistance once the staff was on site.
[48] On March 11, 2022, contractors advised the Landlord that when they entered the unit to check on it, two people were sleeping on the couches in the living room. They left as soon as the contractors entered. It appeared the locks had been picked.
The Divisional Court appeal
[49] On February 28, 2022, the Tenant filed a notice of appeal with the Court of Appeal appealing the Board's order dated February 15, 2022. The court advised the Tenant that she had until March 14, 2022 to rectify the deficiencies with the notice of appeal, which required her to file her Notice of Appeal with the Divisional Court.
[50] On March 8, 2022, a certificate of stay was issued by the Registrar of the Divisional Court pursuant to s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 pending the appeal before the Divisional Court. By this time, the Tenant had already been evicted from the rental unit.
Evidence of the Tenant
[51] As previously stated, the Tenant represented herself on this motion. She did not file any affidavit evidence. I therefore permitted the Tenant to give evidence viva voce on the motion and to file exhibits. The Tenant was very prepared for the motion. She had written out her position, which contained both her evidence and her legal position. She read this to the court. She also had several emails that she wished to provide to the court. She is clearly an intelligent and articulate person.
[52] The Tenant raised several issues in her evidence and submissions.
[53] The Tenant submits that the Board's decision that she was aware of the hearing and able to participate is unreasonable and unfair. She states that she did not receive the notice of the hearing. She also states that service via email is not acceptable because she did not consent to service via email and the Landlord did not personally serve her.
[54] The Tenant submits that the Board erred by not considering her personal circumstances as required by s. 83 of the Residential Tenancies Act. She testified that five children live with her. Three are her own children and two children are her husband's from a previous relationship. He is not in a position to care for the children right now. She is the only suitable guardian. She testified that her children will be displaced because there is no emergency shelter space big enough for her family and her two stepsons will be put in foster care. She also testified that she has a recognized disability under the Ontario Human Rights Code R.S.O. 1990, c. H. 19 that the Board did not consider.
[55] The Tenant also submits that the Board failed to consider the circumstances of both parties in determining if the eviction should be refused or delayed pursuant to the Residential Tenancies Act.
[56] It is the position of the Tenant that the Landlord did not accommodate her disabilities. She states that she suffers from depression and anxiety, which are recognized disabilities pursuant to s. 10(1) of the Ontario Human Rights Code,. She testified that other tenants harassed and bullied her, and this prevented her from fully understanding what has happening and prevented her from being able to deal with her hoarding issues. She testified that the Landlord did nothing to prevent the other tenants from bullying her. In support of her argument, the Tenant provided various emails she sent to the Landlord dated September 30, 2019, November 8 and 13, 2019, January 28, 2020 and June 3 and 21, 2020. The Tenant stated that she was not in a cognitive state to fully understand what was happening and could not deal with the fire code issues.
[57] The Tenant testified that the Landlord was aware of her mental health issues and should have gotten the AIP involved at the first sign of trouble. She stated that the Landlord had many other options aside from having her evicted. She testified that the Landlord only offered her AIP assistance the day after she was told she would be evicted. She later corrected herself and stated that she had been offered AIP assistance previously, but she was not able to deal with her issues at that time and was embarrassed to have anyone enter the unit.
[58] The Tenant also agreed that the Landlord offered her the use of the dumpster but submits that it was the same dumpster as everyone else used and it was often full so she could not get rid of items.
[59] The Tenant also testified that the Landlord offered her the assistance of the contractors to move items from her property, but she was not ready when they attended, and they told her they could not wait around to assist her.
[60] The Tenant also submits that the Fire Prevention Officer did not accommodate her disabilities because he did not follow the policies applicable where there is a concern about hoarding.
[61] It is also the position of the Tenant, that the Landlord misled her. She testified that she understood from the date that she received the eviction notice that the Landlord would not evict her if she cleaned up the rental unit, which she did. She stated the Landlord told her this in an email dated October 20, 2021. This email was not provided to the court. Two other emails contradict her evidence that she did not believe the Landlord would evict her if she cleaned up her unit. In an email dated January 25, 2022, the Tenant requested an extension of time to find new accommodation. In another email she stated that she understood that the eviction order was a final order. The Tenant also filed photographs to support her position that the unit is cleaned up. There is no date stamp on any of these photographs.
Analysis
1. Should the appeal be quashed on the basis that there is no error in Law with respect to the Board's decision that the Tenant was able to participate in the hearing?
[62] A tenant may appeal an order of the Board to the Divisional Court within thirty days after the order is provided. The right of appeal is limited to a question of law: s. 210(1) Residential Tenancies Act. It is the Landlord's position that none of the Tenant's grounds of appeal raise an issue of law and therefore the appeal is manifestly devoid of merit. The Landlord submits that the appeal should be quashed, and the stay of eviction lifted so that the Landlord may immediately rent the unit to other families in need of not for profit housing.
[63] The Divisional Court has the jurisdiction to quash an appeal and may make any interim order that the court considers just to prevent prejudice to a party pending the appeal: s. 210 (4) and (4) Residential Tenancies Act & 134(3) Courts of Justice Act, R.S.O 1990 C. C43.
[64] The test to be applied in determining if an appeal should be quashed is whether the appeal is manifestly devoid of merit. This is a high threshold but when the grounds of appeal do not raise a question of law it is appropriate to quash the appeal and lift the automatic stay of the eviction: See Devenne v. Sedum, [2020] O.J. No. 6141, citing Solomon v. Levy, [2015] O.J. No. 2006, 2015 ONSC 2556: Stirling v. 399527 Ontario Ltd., [2020] O.J. No. 744, 2020 ONSC 1098; Snoek v. CHMA Toronto, 2018 ONSC 6571; Maglis v. Lackan, 2020 ONSC 5049.
[65] Where an appellant seeks to overturn findings of fact and credibility that the Board carefully reviewed, the Divisional Court may find that the appeal is manifestly devoid of merit: Toronto Community Housing Corp v. Jilks [2008] O.J. No. 2774 at para. 9.
[66] The Tenant appeals the Board's decision dated February 15, 2022 that found there was no basis to overturn the review decision made by the Board on January 18, 2022. The issue on the appeal is therefore whether the Board erred in finding there was no basis to interfere with the Board's original review decision that the Tenant was aware of the July 7, 2021, hearing date and able to participate in the hearing.
[67] Where the Board makes factual determinations and applies those facts to a legal test, such as determining that the Tenant was able to participate in the hearing, is a question of mixed fact and law. However, if the Board misapprehended the evidence or failed to consider important evidence that may constitute an error in law: Shooters Sports Bar Inc. v. the Registrar of Alcohol and Gaming Commission, 2008 25052 at para. 38.
[68] The Board made no error in law in upholding the review decision that the Tenant was able to participate in the hearing on July 7, 2021 for the following reasons.
[69] First, it was open on the evidence before the Board on both reviews to find that the Tenant was aware of the hearing date. That is a factual determination that does not raise an issue of law. Contrary to the submissions of the Tenant, the Board did not find that the Tenant was only served with the notice via email. The Board found that the Tenant received the notice through mail. This was a reasonable conclusion based on the evidence. The Board mailed out the hearing notice and that notice was not returned. In addition, the Tenant testified that she checked her mailbox daily and received the judgment in the mail and various other notices through mail.
[70] Second, the Board's finding that the Tenant was also aware of the hearing because she received an email from counsel that set out the date and time of the hearing is reasonable and raises no error in law.
[71] The Board was entitled to consider the fact that emails were sent to the Tenant in determining if the Tenant was able to participate in the hearing. The Tenant had an opportunity to present her evidence at the review hearing to explain why she did not understand there was a hearing even after receiving the emails. The Board considered her explanation that she believed the Fire Prevention Act charges had to be dealt with before the eviction. The Board also considered her explanation that she did not properly read the emails. It was open to the Board to reject her evidence on these points and find that the Tenant's decision not to read the emails carefully when she knew the Landlord wished to evict her was not a basis to grant the review request. The Board's finding on this point raises no error in law.
[72] Third, the Tenant submits that the Board's decision is wrong because the Board did not consider that she was bullied and harassed by tenants in her complex and therefore could not understand the process and that she suffered from disabilities recognized under the Ontario Human Rights Code.
[73] The failing with this submission is that the Tenant participated in the review hearing. There is no basis to find that the Board misapprehended or failed to consider the Tenant's evidence. The Board cannot be faulted for not referring to the Tenant's disabilities when she did not testify that her disabilities prevented her from understanding the process or the emails. Similarly, the Tenant gave no evidence at the review hearing that she did not understand the process or the emails because of the bullying and harassment she stated she received from other tenants.
[74] Even if the Tenant were permitted to file the emails she sent to the Landlord complaining about harassment from other tenants, they do not assist the Tenant. The emails are dated from September 2019 to June 2020, well before the Tenant received the N7, the emails from counsel in June 2021. There is no link between these emails and the Tenant's ability a year later to understand that there was a hearing.
[75] The Tenant is attempting to retry the Board's decision that she was able to participate in the hearing to bring about a different result. This ground of appeal does not raise a question of law.
ii) Other grounds of appeal raised by the Tenant
[76] The Tenant appealed the decision of the Board dated February 15, 2022. That decision was limited to whether the Board erred in finding that the Tenant had notice and was able to participate in the original board hearing on July 7, 2022.
[77] In the notice of appeal, the Tenant raised several other grounds of appeal that relate to the September 21, 2022 decision to evict the Tenant. While there is not an appeal of that decision, I will nonetheless address the grounds of appeal she raises. The Tenant is self-represented and may not have understood how to structure the notice of appeal to include all of the orders she wished to appeal.
[78] The Tenant submits that the Board erred in granting the order to evict her because the Board did not consider all of the circumstances as required by s. 83 of the Residential Tenancies Act.
[79] This ground of appeal raises no error in law. While the Tenant was not present for the hearing, the Board specifically asked Ms. Curran for more information regarding the Tenant because the Board wanted to ensure it complied with s. 83(2) of the Residential Tenancies Act. Ms. Curran told the Board that the Tenant had lived in the unit for six years and had three children and pets living in the unit. The only additional information that was not before the Board, is that there were two more children residing with her and that she has disabilities recognized under the Human Rights Code.
[80] I do not find that the Board's failure to consider that two additional children resided with the Tenant in the unit raises an error of law. First, the Tenant did not participate to put this fact forward. Second and more importantly, the Board carefully considered the fact that the Tenant had children and considered the impact eviction would have on the children, including that the family may have to reside in a shelter during COVID-19.
[81] The Board not only considered the Tenant's circumstances in deciding whether to evict her, the Board also considered circumstances in deciding whether to delay her eviction pursuant to s. 83(1)(b) of the Residential Tenancies Act. Ultimately, the Board decided to delay the Tenant's eviction by one month to provide the Tenant with an opportunity to find alternative housing for her and her family.
[82] The fact that the Board did not consider the Tenant suffered from depression and anxiety also does not amount to an error in law. First, the Tenant did not participate at the hearing. Second, while the Board was not aware what specific disabilities the Tenant suffered from, the Board found that the Tenant has "some difficulties, likely due to a disability." The Board considered that the Tenant likely had a disability that contributed to the situation the Tenant found herself in. The Board inquired into the assistance that had been offered to the Tenant to deal with the hoarding and what assistance could be offered to her if the eviction order were granted.
[83] There is also no merit to the Tenant's submission that the Landlord failed to accommodate the Tenant's disabilities. To the contrary, the Landlord tried to encourage the Tenant to accept the assistance of the AIP program. This program is designed to assist persons with disabilities and other issues. The Tenant declined this assistance. It was only after the eviction order that the Tenant accepted these services. As the Landlord submitted, they are in the business of housing people not trying to evict persons who need housing. The Landlord tried to assist the Tenant to deal with her hoarding issues.
[84] The Tenant also submits that the Board erred in not considering that the Fire Prevention Officer did not follow the guidelines issued in December 2021 dealing with hoarding. This ground of appeal does not raise an error in law. First, these guidelines are issued well after the Fire Prevention Officer made his orders, so it is not clear that they were even applicable at the time. Second, whether the Fire Prevention Officer followed the guidelines may be relevant to the charges the Tenant faces under the Fire Prevention Act, but it is not relevant in determining whether the Landlord accommodated her disabilities prior to evicting her. As previously noted, the Board was aware of the efforts made by the Landlord to assist the Tenant.
[85] The Tenant also submits that the Landlord is in serious breach of the tenancy agreement, and she would be entitled to mandatory relief from eviction pursuant to s. 83(3) of the Residential Tenancies Act. Section 83(3) of the Act sets out a number of circumstances where the Board is to refuse to grant an eviction order including where (a) "the landlord is in serious breach of the landlord's responsibilities under this act or of any material covenant in the tenancy agreement". The Tenant submits that had the Board been advised of the ongoing harassment by other tenants that the Landlord failed to address and the other physical problems with the unit that were not fixed, including the stove, the Board would have denied the eviction.
[86] There are several problems with this argument. First, the Board found the Tenant had notice of the hearing and did not participate to put forth these submissions. Second, whether the Landlord addressed the harassment or repaired the unit would be factual issues for the Board to determine. Finally, the Board stated that it considered all of the disclosed circumstances in accordance with subsection 83(2). The Board found that there was no evidence before the Board that would make it unfair to grant the eviction but that the circumstances of the Tenant warranted delaying the eviction.
[87] Finally, the Tenant submits that the Landlord misled her into believing that if she rectified the fire hazards, the Landlord would not evict her. She states she has cleaned up the rental unit and should be permitted to remain. Essentially, her position is that had the Board been aware that the Landlord mislead her, the Board would not have evicted her. Moreover fairness dictates that that even after the eviction order was made, now that she has complied with the orders, she should be permitted to remain in the rental unit.
[88] Again, there are several problems with these submissions.
[89] First, the Board made a finding that the Tenant was able to participate in the hearing. The Tenant did not present evidence that the Landlord mislead her at the hearing or the review hearing to explain why she did not believe she would be evicted.
[90] Second, it would be a factual finding as to whether the Tenant was or was not mislead. That does not raise an error of law.
[91] Third, there is no merit to the Tenant's submission the Landlord mislead her. There is no dispute that prior to the hearing, the Landlord demonstrated a willingness to try to work with the Tenant by trying to get AIP involved and suggesting mediation. However, once the hearing commenced, the position of the Landlord was clear that they wanted the Board to evict the Tenant immediately. It was the Board that decided to delay the eviction. The Board's position did not change at the review hearing which the Tenant was present at.
[92] It is also clear in the Tenant's emails in 2022 that she knew the eviction was final. In the email sent from the Tenant to her Landlord dated January 25, 2022, the Tenant asked for an extension of her eviction. In her email dated January 14, 2022, the Tenant stated that the Landlord would take the final order to the Sheriff's, and she begged the Landlord to allow her the chance to make this right. In addition, there were photographs taken on February 23, 2022, which was the date of her eviction.
[93] Finally, photographs filed with the Board and this court directly undermine the Tenant's submission that she cleaned up the unit prior to being evicted. There are photographs taken on December 3, 2020, June 21, 2021, and February 23, 2022 that show that the fire hazards were not addressed. While the Tenant filed photographs that showed that the rental unit was cleaner, those photographs were not dated. The Landlord gave the Tenant ample opportunity to clean up the rental unit, but she failed to do so in a timely fashion.
Conclusion
[94] While the I recognized that the Tenant circumstances are extremely difficult and unfortunate, none of the arguments she raises on appeal relate to an error of law. Even if the Tenant were permitted to introduce fresh evidence in support of her arguments at the Divisional Court the issues raised in this appeal are still manifestly devoid of merit.
[95] The Landlord's motion to quash the appeal and lift the stay of the eviction order is granted.
Security for Costs
[96] Given my finding that the motion to quash the appellant's appeal should be granted, it is not necessary to consider this issue.
Costs of the Motion
[97] The Landlord seeks costs in the amount of $9,392.56 for this motion. This includes time attending the case conference, preparing the factum, preparing the motion material and today's court attendance. Counsel submits that the 25 hours spent on this motion is a very conservative estimate of the time she spent on the file. Counsel also arranged for the transcripts, which the Tenant did not provide. Counsel's hourly rate is $300.
[98] Section 131 of the Courts of Justice Act, R.S.O., 1990, c. C. 43, as amended, provides that subject to the provisions of an act or rules of the Court"costs… are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid."
[99] Rule 57 of the Rules of the Civil Procedure, R.R.O., 1990, Reg. 195 sets out the factors for the Court to consider in exercising its discretion with respect to costs in accordance with s.131 of the Courts of Justice Act.
[100] The Landlord was the successful party on this motion and therefore is presumptively entitled to their costs.
[101] I am satisfied that the amount of time spent by the Landlord on this motion is reasonable, as is the rate charged by the counsel. I am also entitled to consider that the Tenant is of extremely limited means in considering the issue of costs. She states that she is not able to pay these costs and lives off of Ontario Works.
[102] The overall objective in determining cost is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: see Boucher v. Public Accountants Council of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.).
[103] I am satisfied that it is appropriate for the Tenant to pay costs to the Landlord in the amount of $4,000. The costs are to be added to any arrears the Tenant owes to Guelph Not-for-Profit Housing, pursuant to the Housing Services Act, 2011, S.O. 2011, c. 6.
Dennison J.
Released: April 21, 2022
CITATION: Chevrier v. Guelph Non-Profit Housing Corporation 2022 ONSC 2372
COURT FILE NO.: DC-22-11
DATE: 2022 04 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRANDY CHEVRIER
Appellant
- and -
GUELPH NON-PROFIT HOUSING CORPORATION
Respondent
REASONS FOR JUDGMENT
Dennison J.
Released: April 21, 2022