Court File and Parties

CITATION: Potomski v. The Landlord and Tenant Board et al., 2022 ONSC 3348

COURT FILE NO.: DC-22-17

DATE: 2022/06/03

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: R.J. POTOMSKI, Applicant

AND:

THE LANDLORD AND TENANT BOARD and MAUREEN CRAWFORD and ST. JOHN’S ANGLICAN NON-PROFIT HOUSING CORPORATION, Respondents

BEFORE: Justice I.F. Leach

COUNSEL: The applicant, self-representing

No other parties represented or appearing

HEARD: In writing

ENDORSEMENT

[1] In my capacity as a judge of the Divisional Court, pursuant to s.18(3) of the Courts of Justice Act, R.S.O. 1990, c.C.43, I have been presented with what the self-representing applicant herein, Mr Potomski, has framed as a motion, (brought in the larger context of his recently commenced application proceeding), to be heard in writing, on an urgent and ex parte urgent basis.

[2] The motion seeks, inter alia, an interim order staying a decision of the respondent Landlord and Tenant Board, (“LTB”), along with ancillary terms permitting Mr Potomski to pay rent money into the LTB and preventing the LTB from terminating his tenancy, until the issues raised by the underlying application have been decided.

[3] By way of additional background, and at the risk of some over-simplification:

a. It appears from the material filed that Mr Potomski is a tenant of the respondent St. John’s Anglican Non-Profit Housing Corporation, (“the landlord”), which has employed the respondent Maureen Crawford as its property manager. In particular, Mr Potomski has been occupying a unit in a residence facility, owned by the landlord, at a specified address on Sandwich Street in the city of Windsor, Ontario.

b. At the heart of this dispute is Mr Potomski’s desire to continue paying his required monthly rent for that unit by electronic banking transfers (“e-transfers”) instead of the cheque or money order arrangements now insisted upon by the landlord. In that regard:

i. There seems to be no question that Ms Crawford verbally agreed to such an accommodation, (i.e., allowing a method of rent payment not contemplated by the terms of the original lease agreement), for some period of time; a period of time that began in March or April of 2020 and coincided with the height of the Covid-19 pandemic. Prior to that arrangement, Mr Potomski, who does “not write cheques”, apparently had been paying his rent by money orders.

ii. Mr Potomski apparently takes the position that the verbally agreed arrangement permitting his payment of rent via e-transfers had no expiry date, and was to run for the duration of his tenancy.

iii. However, approximately eight months after Mr Potomski had started paying his rent via e-transfers, Ms Crawford was instructed by the landlord to stop accepting Mr Potomski’s payment of rent in that manner, giving rise to the present ongoing dispute.

c. On or about December 29, 2021, Mr Potomski applied to the LTB for relief; i.e., by commencing a formal “Application About Tenant Rights” to be heard and determined by the LTB pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c.17. In his application, Mr Potomski claimed, inter alia, that the landlord and/or its agent Ms Crawford had “harassed, coerced, obstructed, threatened or interfered” with Mr Potomski by refusing to accept payment of his rent by “e-transfer”, contrary to his alleged indefinite verbal agreement with Ms Crawford as the landlord’s agent. By way of amendment, Mr Potomski also claimed that the alleged conduct of the landlord and its agent Ms Crawford constituted a breach of Ontario’s Human Rights Code, R.S.O. 1990, c.H.19.

d. On January 10, 2022, (i.e., after the filing of his LTB application and before its hearing), Mr Potomski formally asked the LTB to make an order permitting Mr Potomski to pay the rent due on his unit, (which the landlord and Ms Crawford were refusing to accept via e-transfer), into the LTB until Mr Potomski’s application to the LTB could be heard and determined. On January 15, 2021, that request was granted by a member of the LTB; i.e., Nancy Morris.

e. Mr Potomski’s application to the LTB proceeded to a hearing before a Vice-Chair of the LTB, (E. Patrick Shea), on or about February 28, 2022.

f. On April 14, 2022, Vice-Chair Shea released his decision on behalf of the LTB; a decision dismissing Mr Potomski’s application, terminating the interim order made by Ms Morris, and directing payment to the landlord of the accrued rent that had been paid into the LTB by Mr Potomski. The full text of the reasoned decision is set forth at Tab “C” of the Applicant’s motion record. However, amongst other things, Vice-Chair found and/or held:

i. that the landlord had a right under the lease agreement to designate where and how rent was to be paid;

ii. that the landlord had specified that rent was to be paid on its premises by cash, money order or cheque, and not by e-transfer;

iii. that the e-transfer arrangement verbally agreed upon between Mr Potomski and Ms Crawford on behalf of the landlord was a permissible verbal amendment of the tenancy agreement and/or constituted a course of conduct giving rise to an implied term of that agreement, but one that was temporary and intended to last only while Covid-19 restrictions were in place, and which came to an end with the lifting of the province’s mask mandate on March 21, 2022;

iv. that there was no basis for the human rights complaint made by Mr Potomski, insofar as a senior in his position was not obliged to expose himself to possible COVID-19 concerns in order to pay his rent, (e.g., by attending a bank to obtain cash or a money order), as the rent could be paid by cheques capable of being ordered from a financial institution, and Mr Potomski’s reason for not writing cheques had nothing to do with age or disability but was instead simply a matter of personal preference;

v. that there was no evidence that the landlord or its agent was insisting on the delivery of post-dated cheques;

vi. that whether or not the e-transfer arrangements had been working and more convenient to Mr Potomski, and whether or not the LTB’s decision to no longer accept rent via such e-transfers was unreasonable, were not the issues for determination; and

vii. that the LTB lacked jurisdiction to order the landlord to accept rent via e-transfers.

g. On May 6, 2022, (less than 30 days after release of the aforesaid LTB decision and resulting order), Mr Potomski commenced this application in the Divisional Court, seeking “judicial review” of the aforesaid LTB decision “pursuant to section 2 of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1”, and more specific relief including:

i. review of the LTB order, and an order in the nature of certiorari or otherwise quashing the LTB order and declaring it to be “void and of no force and effect”; and

ii. interim orders staying the LTB order until a final decision was made in relation to the application, and allowing Mr Potomski to continue paying his rent into the LTB.

h. On May 31, 2022, Mr Potomski filed his motion record in relation to this motion, indicating that it was “to be heard in writing”, and seeking various forms of procedural relief, (e.g., allowing his motion to proceed on an urgent and ex parte basis before a judge of the Superior Court or Divisional Court located in the city of Windsor), and substantive relief including interim orders staying the LTB decision until final determination of the application, allowing Mr Potomski to pay money into the LTB as he had been doing, and preventing the LTB from terminating Mr Potomski’s tenancy until his underlying application has been the subject of a final decision.

i. The motion was directed to me electronically by the London court staff, no doubt acting on a formal Requisition, also filed by Mr Potomski, indicating that he required the motion to be “placed before a judge” and “heard on an urgent basis”.

[4] I have not granted any of the relief sought by Mr Potomski’s motion because I consider the motion to be problematic for numerous reasons, including those described in the paragraphs which follow.

[5] First, I am not aware of any authority permitting a motion of this nature to be heard in writing. In that regard:

a. By virtue of Rule 1.02(1) of the Rules of Civil Procedure, the rules therein apply to all civil proceedings in the Superior Court of Justice, and the Divisional Court is a branch of the Superior Court of Justice pursuant to s.18(1) of the Courts of Justice Act, supra.

b. Rule 37.02(1) confirms the jurisdiction of a judge to hear any motion in a “proceeding”, and “proceeding” is defined by Rule 1.03(1) to mean “an action or application”. [Emphasis added.]

c. Rule 37.12.1 therefore applies to a motion brought in the Divisional Court within the context of an application, and Rule 37.12.1(1) allows for the hearing of a motion in writing without the attendance of parties only where the motion in question is on consent, unopposed, or properly brought without notice pursuant to Rule 37.07(2); i.e., where :the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary”.

d. In this case, there is absolutely nothing before me to indicate the motion is on consent or unopposed. In relation to the latter, it should be emphasized that, pursuant to Rule 37.12.1(3), a motion may be regarded as “unopposed” for the purposes of Rule 37.12.1 only where the court is supplied with a notice from each responding party stating that the party does not oppose the motion.

e. In my view, there also is nothing before me to indicate that the nature of the motion or the circumstances renders service of the relevant notice of motion impractical or unnecessary. Without limiting the generality of the foregoing, I am not persuaded that the “urgency” relied upon by Mr Potomski, (i.e., his desire for an interim order staying the LTB order prior to any termination of his lease), in any way negated his ability to serve his notice of motion on the responding parties, along with an indication of his desire to have the motion heard and determined as quickly as possible.

[6] Second, it seems that Mr Potomski has completely ignored and bypassed all of the mandated triage and scheduling provisions of the governing “Notice to Profession – Divisional Court”; a notice which was updated on April 19, 2022, so as to incorporate the previous Notice to the Profession for Appeals from the Landlord Tenant Board. In that regard, I note the following:

a. The notice indicates in its preamble that the Divisional Court “will hear matters in accordance with [that] Notice to the Profession until further notice”.

b. The notice indicates, in paragraph D.1, that it sets out “the practice to be observed to commence or continue and to schedule any step in a matter in the Divisional Court anywhere in Ontario”. [Original emphasis.]

c. Paragraph D.6.1 of the notice indicates that its direction “applies to all matters in the Divisional Court, whether parties are represented or are self-represented”. [Emphasis added.] In situations where a self-represented litigant is unable to conduct a case in accordance with any of the requirements set out in the Notice to Profession, the same sub-paragraph requires that self-represented litigant to promptly advise the court of the difficulty and request variation in the requirements; e.g., to enable that litigant to provide documents to the court and/or participate in the hearing by some alternative means.

d. The Notice to Profession contains detailed provisions establishing further controls and procedures in relation to the commencement of Divisional Court proceedings, and the scheduling of matters in the Divisional Court. For example:

i. Pursuant to sub-paragraphs D.2.1 and D.2.2, any party wishing to commence a new Divisional Court proceeding or to schedule a step in the proceeding, (which would include a motion), must first contact the court through a specified email address, sending a request, (copied to all other parties), providing specified information details about the intended proceeding.

ii. Pursuant to sub-paragraphs D.2.4, in all cases where a party submits a request for a hearing, the Divisional Court typically will respond with a request that the parties agree on a schedule for the exchange of documents and/or schedule a case conference with a Divisional Court Administrative Judge or a designate.

iii. Moreover, pursuant to sub-paragraphs D.7.1 and D.7.2, all matters in the Divisional Court, and all steps in all matters in Divisional Court, are subject to judicial case management, (designed to facilitate the timely adjudication of all matters in the Divisional Court in a cost-effective and proportional manner), and a party’s request for a hearing, submitted in accordance with the Notice to Profession, therefore will be subject to triage by an Administrative Judge of the Divisional Court or designate. Where no preliminary issues are identified by the court, the triage judge will give scheduling directions pursuant to sub-paragraph D.7.3. However, where the triage judge is of the opinion that a case management conference is required to address any issue, the triage judge may direct, pursuant to sub-paragraph D.7.4, that such a conference, (to be held by telephone), be scheduled by the court staff.

iv. Pursuant to sub-paragraph D.8.1, except in cases of demonstrated urgency, the court normally will not schedule or grant a stay (or motion to lift a stay) prior to conducting triage and making an initial case management direction/order in accordance with the Notice to Profession.

e. There is no indication in the material before me that Mr Potomski has made any effort to ensure compliance with these various notice, request, triage and scheduling procedures. In my view, his intended motion should not receive any hearing until those procedures have been completed in the manner contemplated and directed by the Notice to Profession.

[7] Third, while I am not an Administrative Judge of the Divisional Court or designate, and therefore do not purport to finally decide such matters in any way, it seems to me that there is good reason to think that the mandated triage process may very well identify a number of important preliminary issues insofar as Mr Potomski’s application and motion are concerned. Without limiting the generality of the foregoing:

a. A review of Mr Potomski’s notice of application for judicial review of the relevant LTB decision suggests that the application is focused largely if not entirely on questions of law. For example, in its requests for relief and indicated grounds for that relief, the notice of application expressly and/or implicitly requests findings:

i. that Mr Potomski was denied procedural fairness in numerous ways, in some instances leading to improper findings of fact;

ii. that the LTB committed jurisdictional errors;

iii. that the LTB erred in law by failing to find contraventions of specified legislation; and

iv. that the LTB essentially exhibited bias insofar as it “knowingly allowed” a named lawyer, (apparently counsel for the landlord), “to mislead” the LTB.

b. Pursuant to s.210(1) of the Residential Tenancies Act, 2006, supra, any person affected by an order of the LTB may appeal the order to the Divisional Court, in relation to any question of law.

c. As noted in the “Guide to Appeals in Divisional Court”, (which sub-paragraph D.6.2 of the aforesaid Notice to Profession expressly encourages self-represented litigants to review when preparing materials for an appeal or application for judicial review):

i. Judicial reviews generally are not available when a statutory right of appeal exists and has not yet been exhausted.

ii. If the decision someone seeks to challenge is made under legislation that provides for an appeal to the Divisional Court, then it is improper to seek review of that decision in the form of judicial review – although a right of review may remain in relation to matters where no right of appeal exists; e.g., if the statutory right of appeal is limited.

d. In this case, there accordingly may very well be a preliminary issue as to whether Mr Potomski effectively has employed an inappropriate or premature procedure in formally seeking judicial review of the relevant LTB decision, without first pursuing an appeal of the decision pursuant to s.210(1) of the Residential Tenancies Act, 2006, supra.

e. Moreover, if that is so, and Mr Potomski instead had employed the proper and appropriate initial procedure of such an appeal to challenge the LTB decision, his urgent desire for a stay of the resulting order could and would have been satisfied immediately, (and without unnecessary consumption of the court’s currently scarce resources), by the formal commencement of such an appeal. In particular, (and as noted and emphasized by sub-paragraph D.13.1 of the Notice to Profession), pursuant to Rule 63.01(3) of the Rules of Civil Procedure, “delivery of a notice of appeal” from an order under the Residential Tenancies Act, 2006, supra, automatically and immediately stays, until disposition of the appeal, any provision of the order:

i. declaring a tenancy agreement terminated or evicting a person; or

ii. terminating a member’s occupancy of a member unit in a non-profit housing co-operative and evicting the member.

f. Again, without deciding the matter, all of the above suggests that the Administrative Judge of the Divisional Court or designate may very well have concerns about setting a schedule for the exchange of motion material, or reserving time in the Divisional Court for a hearing of the motion, until such preliminary issues have been addressed.

[8] For such reasons, I have declined to hear Mr Potomski’s motion in writing and make the orders he has requested. He is instead ordered to:

a. review and comply with all provisions of the aforesaid Notice to Profession – Divisional Court, in relation to his application and his motion; and

b. include a copy of this endorsement with the other information and material forming part of the Request or Requests mandated by paragraph D.2 of that Notice to Profession, to be sent to the court and copied to all other parties.

[9] Perhaps it would go without saying, but I will note that I am not in any way seized of this matter.

“Justice I.F. Leach”

Justice I.F. Leach

Date: June 3, 2022