Court File and Parties

CITATION: Guillaume v. Barney Rivers Investments Ltd., 2022 ONSC 271

DIVISIONAL COURT FILE NO.: 908/21

DATE: 20220112

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: VALERIE GUILLAUME, Appellant (Moving Party)

AND:

BARNEY RIVERS INVESTMENTS LTD., Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant/Moving Party

Mark Melchers, for the Respondent

HEARD: January 11, 2022

Endorsement

[1] The appellant has brought this motion for interim relief pending her appeal. The underlying appeal challenges a decision of the Landlord Tenant Board (“LTB”) dated November 22, 2021. In that decision, the LTB dismissed the appellant’s application about being wrongly locked-out, finding that she was not a tenant of the rental unit.

[2] On this motion, the appellant seeks an order permitting her to live in the rental unit pending her appeal or stay the LTB decision (meaning that the unit could not be re-rented pending the appeal).

Brief background

[3] In 2016, the respondent landlord rented the premises to a third-party, referred to in this endorsement as Ms. O. In June 2021, Ms. O gave notice to the landlord that she intended to move out at the end of June. In response, she was told that she needed to give 60 days’ notice. She then provided a Form N9 indicating that she was terminating her tenancy effective August 31, 2021.

[4] Ms. O moved out, and she returned her keys on July 28, 2021. On August 4, 2021, an employee of the landlord inspected the unit, finding little there except several cats. There was no furniture. After inquiry, Ms. O said that the cats had likely been abandoned by her former roommate (the appellant). The landlord ensured that the cats were given shelter and changed the locks.

[5] On this motion, there are factual disputes about several matters, including whether there was food and other items for the cats left in the rental unit, whether the appellant had paid a month’s rent just before she was locked out and whether the landlord knew the appellant had been living there.

[6] After the locks were changed, the appellant recovered her cats and brought a T2 Application about Tenant Rights, seeking an order determining that she had been wrongfully locked out. She listed herself and Ms. O as the applicants, but Ms. O later confirmed that she did not bring the application and was not pursuing it.

[7] The appellant sought interim relief from the LTB. She filed an urgent ex parte motion, resulting in an interim order dated September 22, 2021 that expedited the hearing and prohibited the landlord from re-renting the unit in the meantime. The appellant requested, but was not given, interim possession of the unit.

[8] In October, Ms. O provided a letter confirming that she had not brought the application, had been the only tenant and did not wish to continue the tenancy. The appellant challenges the authenticity of this letter.

[9] The appellant’s application was heard by LTB Member Morris on November 10, 2021. The LTB decision, challenged on this appeal, was released on November 22, 2021.

[10] Member Morris addressed the preliminary issue of whether the appellant was a tenant. If not, the LTB did not have jurisdiction to give the requested order.

[11] Member Morris heard evidence from the appellant and the landlord, and from Ms. O.

[12] The appellant relied on s. 104(4)(b) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, submitting that her occupation was deemed to be an assignment of the rental unit in her circumstances. Member Morris considered the facts, finding that the appellant was a roommate, not a tenant, that roommates were permitted, and that the landlord was unaware that there was an “authorized occupant” for whom the landlord would be obliged to make an application to the LTB of an unauthorized assignment of the lease. Member Morris found that there was no deemed assignment of the rental unit.

[13] Given the finding that the appellant was not a tenant, her application was dismissed. The appellant then brought her appeal to this court. The appellant raises procedural fairness issues in her appeal, submitting that the LTB member did not allow her evidence to be heard, as well as other issues.

[14] The appellant now seeks interim relief pending the hearing of her appeal.

Issues

[15] The test for interim relief is set out in RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. Three factors must be considered:

(1) whether there is a serious issue to be decided on the appeal;

(2) whether the appellant would suffer irreparable harm if the interim relief is not granted; and

(3) whether the balance of convenience favours granting the motion.

[16] The threshold for the first factor is low. The starting point is the Residential Tenancies Act, which limits appeals to questions of law only. Although the appellant frames her appeal as breaches of procedural fairness (which are questions of law in this context) a number of her grounds are actually challenges to the fact-finding by the LTB. Those matters fall below the low threshold for serious issues because they are not questions of law.

[17] The grounds that may be characterized as questions of law are as follows:

(i) that the member wrongly reversed the September 22, 2021 interim order because that interim order viewed the appellant as a tenant;

(ii) that the member acted outside her jurisdiction because the landlord was required to file A1/A2 applications to challenge the appellant’s tenancy and did not do so, and erred in not finding that the tenancy had been assigned to her under ss. 100 and 104 of the Act; and,

(iii) that there is a reasonable apprehension of bias and breach of procedural fairness because the member did not accept two audio recordings (between the appellant and Ms. O) into evidence, as well as other conduct at the hearing.

[18] There is no serious issue of law about reversing the prior interim order. The prior order made no finding about the appellant’s alleged tenancy. It preserved the issue pending the LTB hearing. Similarly, there is no serious issue that an A1 or A2 was required. It was open to the LTB member to consider the tenancy issue on the appellant’s application as a preliminary matter. Further the conclusion under the Act was based on findings of fact.

[19] However, I am prepared to assume that the procedural fairness issues are sufficient for the low threshold on the question of whether there is a serious issue raised on the appeal.

[20] On the second question, irreparable harm, the appellant has said that she suffered harm when the LTB disregarded her rights at the hearing by denying her the opportunity to be heard and by acting with bias. These are grounds of appeal and more properly dealt with under the first factor, above. I have accepted that there are procedural fairness issues that raise a serious issue to be tried.

[21] In addition, the appellant says that she has suffered financial harm. This is not irreparable harm. Further, if she succeeds on her appeal, and the matter is remitted back to the LTB to be heard again, she may seek damages up to $35,000. The evidence does not suggest a damage claim in excess of that amount.

[22] The above interim order of the LTB has now expired. It dealt with any possessions of the appellant and there is no evidence of an issue in that regard. It also precluded the landlord from re-renting the premises until the time of the hearing. The landlord confirms that the unit remains vacant. If the premises were re-rented, and the appeal is successful, there is the possibility of irreparable harm.

[23] The respondent acknowledges that the other relief sought on the appellant’s motion, to stay the LTB order appealed from, would mean prohibiting the landlord from re-renting the premises pending the appeal.

[24] On the third question, the balance of convenience, the appellant submits that she is working on the preparation of her appeal materials to meet the schedule that the court has set for the delivery of her materials.

[25] The landlord notes that permitting the appellant to occupy the rental unit on an interim basis creates a problem. Specifically, if issues arise, the landlord would be constrained because under the Residential Tenancies Act it can only seek relief against tenants and unless and until the appeal is granted, the Act does not apply. Further, continuing the interim order to keep the unit vacant could mean that the unit is left vacant for an additional long period of time.

[26] Considering all of the above factors, the request to occupy the rental unit pending appeal is not granted, however, the respondent shall not re-rent the premises pending the hearing of the appeal. Given this order, the appeal shall be expedited. The court office will be in touch with the parties about the date for the expedited appeal.

[27] Given that there was divided success on this motion, there shall be no order as to costs.

Matheson J.

Date: January 12, 2022