Citation and Court Information
Citation: Malloy v. Hamilton East Kiwanis 2022 ONSC 2485
DIVISIONAL COURT FILE NO.: 21/374
DATE: 2022/04/25
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: LYNN MALLOY /Appellant
AND: HAMILTON EAST KIWANIS NON-PROFIT HOMES INC./Respondent
BEFORE: Backhouse, Lederer and Davies JJ.
COUNSEL: Lynn Malloy on her own behalf Greta Ladanyi, for the Respondent
HEARD at Toronto by Videoconference: April 21, 2022
ENDORSEMENT
Backhouse J.
[1] This is an appeal from the Order of the Landlord and Tenant Board (the “Board”) dated August 4, 2020 in which it terminated the Appellant’s tenancy at 595 Rymal Road East, Hamilton, Ontario (the “residential complex”) and ordered her eviction for seriously impairing the safety of another person.
[2] The court’s jurisdiction on this appeal is limited to questions of law: Residential Tenancies Act, 2006, S.O. 2006, c.17, s. 210 (“RTA”). The Appellant alleges that the Board erred in law when it failed to consider the evidence as whole, making an overriding error in evaluating the evidence, making an adverse credibility finding and unreasonably weighing the evidence. She points to the fact that the other party in the altercation came onto her property and was therefore the aggressor and that the police report contradicted the Board’s findings.
[3] The issues raise by the Appellant are not questions of law but are rather attacks on the Board’s findings of fact. In this case, the Board heard testimony from the two persons involved in the physical altercation that occurred on the residential complex as well as from another person present at the time of the event. The hearing before the Board was adjourned to enable the Appellant to obtain the police report which the Board considered. The police were not present at the time of the altercation. This court is bound to accept the facts found by the Board.
[4] The Appellant further submits that the Board erred in law in its analysis under s.83 of the RTA about whether to grant the Respondent’s request for eviction. Specifically, the Appellant submits that the Board failed to consider whether the eviction and not just postponement would be unfair. She submits that the Board failed to consider all the circumstances relevant to who was at fault and the fairness of granting the eviction in light of the COVID-19 pandemic.
[5] I disagree. Once the Board has reviewed and considered the circumstances of both parties, it may exercise its discretion to refuse or grant and delay an eviction. The Board did consider whether eviction of the Appellant would be unfair by giving consideration to the various circumstances of the Appellant and the Respondent:
(a) The length of time the Appellant resided at the residential complex;
(b) The fact that the Appellant is supported by the Ontario Works Program and pays a subsidized monthly rent of $243.00;
(c) The fact that the Appellant’s unit is conveniently located near the school of the Appellant’s child;
(d) The Appellant’s very limited income;
(e) The absence of any significant event since July 2019.
[6] Based on the determinations and considerations as required by s.83 of the RTA including the finding that the Appellant seriously impaired the safety of another person, the Board opted to grant the eviction and postpone it for a short period to allow the Appellant time to find alternate accommodation. There is no error of law.
[7] For these reasons the appeal is dismissed.
[8] The Respondent shall be entitled to costs in the amount of $1000.
________________________________ Backhouse J.
I agree ________________________________ Lederer J.
I agree ________________________________ Davies J.
Date: April 25, 2022