CITATION: Bailey v. Capreit Limited Partnership, 2022 ONSC 3395

DIVISIONAL COURT FILE NO.: 21/579

DATE: 2022-06-08

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: RICKEY BAILEY, Appellant

AND:

CAPREIT LIMITED PARTNERSHIP, Respondent

BEFORE: Lederer, McCarthy and Davies JJ.

COUNSEL: Rickey Bailey, on his own behalf No one appearing for the Respondent Jason Tam, appearing for the Landlord and Tenancy Board

HEARD at Toronto by Videoconference: May 11, 2022

ENDORSEMENT

By the Court

[1] This is an appeal from the decision of the Landlord and Tenant Board dated June 9, 2021 terminating Mr. Bailey’s tenancy at 370 McCowan Road in Toronto.

[2] The Board found that Mr. Bailey threatened another tenant in the hallway of the building. Under s. 61 of the Residential Tenancies Act, 2006, S.O. c. 17, a landlord may issue a notice of termination of the tenancy if a tenant commits an illegal act in their rental unit or in the residential complex. The Board found that Mr. Baily’s threat to the other tenant meets the definition of an illegal act in the residential complex and justifies termination of his tenancy. The Board delayed Mr. Bailey’s eviction to give him time to find alternative accommodation. Mr. Bailey has been living at 370 McCowan for more than 16 years. He is of modest means and receives a subsidy towards his rent.

[3] Mr. Bailey requested a review of the Board’s June 9, 2021 decision. Mr. Bailey argued that the video evidence submitted by the landlord at the original hearing was incomplete. He also argued that the hearing was not fair because the Board improperly refused to hear his witness and denied him an opportunity to speak to duty counsel before his hearing, despite his request to do so. The Board conducted the review without a hearing. On July 9, 2021, Mr. Bailey’s request for a review was denied. The reviewing member of the Board was not satisfied that a serious error occurred.

[4] In his Notice of Appeal to the Divisional Court, Mr. Bailey asked the Court to set aside the decisions of the Board. He asked for an order remitting the matter back to the Board with the instructions that the Board determine that the Residential Tenancies Act, 2006, S.O. c. 17, does not apply. He also asked for an order remitting the matter back to the Board for “a hearing de novo.” In the alternative, he asked that the Court substitute its decision for that of the Board.

[5] No one appeared for the landlord at Mr. Bailey’s appeal. Prior to the hearing, the landlord communicated to the Court that it would not be opposing Mr. Bailey’s appeal so long as no costs order was made against the landlord.

[6] At the start of the hearing, Justice Lederer told Mr. Bailey that because the landlord was not opposing his appeal, the Court was going to grant his appeal and order a new hearing before a different panel of the Board. This angered Mr. Bailey.

[7] Despite the relief requested in his Notice of Appeal, Mr. Bailey did not want a new hearing. Mr. Bailey wanted the Court to review the evidence he submitted and “clear his name.” Mr. Bailey again argued that the video evidence filed by the landlord at the hearing before the Board had been tampered with. He said he has evidence to prove that he did not threaten anyone. Mr. Bailey also made submissions about the validity of the transcripts from the Board hearing.

[8] Justice Lederer explained to Mr. Bailey that the Divisional Court can only hear appeals from the Landlord and Tenant Board that deal with questions of law: Residential Tenancies Act, 2006, S.O. 2006, c.17, s. 210. Justice Lederer explained that the Court cannot reconsider factual findings made by the Board or substitute its decision for the Board on factual matters. Justice Lederer explained that all the Court can do is decide whether a legal error was made at the hearing before the Board. If an error was made by the Board, all this Court can do is order that the Board conduct a new hearing. Justice Lederer explained to Mr. Bailey that he can put the evidence he has before the Board at his new hearing and can make arguments at the new hearing about the authenticity and veracity of the landlord’s evidence.

[9] Mr. Bailey continued to be upset by the prospect of having a new hearing at the Board. He was highly critical of the Board. He does not trust the Board to be fair. Mr. Bailey made several insulting comments about the Board. Mr. Bailey asked the Court to order that the new hearing be conducted by a judge or a panel of judges. Mr. Bailey also asked that the Court provide him with a bodyguard or some other form of protection for his hearing.

[10] Justice Lederer explained the Court would order the hearing be conducted by a new panel of the Board but would not make any other order. Justice Lederer explained again the limits of the Court’s jurisdiction, and the limits of the Court’s remedial powers. Mr. Bailey did not seem to understand and continued to express his displeasure. Mr. Bailey said he thought the result of his appeal was an injustice.

[11] In light of the landlord’s position, Mr. Bailey’s appeal is granted and a new hearing is granted before a differently constituted panel of the Landlord and Tenant Board.

[12] Mr. Bailey made no submissions on the issue of costs. He did, however, request costs in his Notice of Appeal. Cost awards are intended to compensate the successful party for some of their legal expenses, encourage settlement of cases, deter unmeritorious proceedings and promote access to justice. A successful self-represented litigant is not automatically entitled to costs and is not entitled to costs on the same basis as a litigant who has counsel. Costs will only be awarded to a self-represented litigant if the self-represented litigant can show they lost the opportunity to make money because they had to devote time to their case. However, self-represented litigants are not entitled to costs for the time and effort any litigant would have to spend on their case: Fong v. Chan, 1999 2052 (ON CA), [1999] O.J. No. 4600 at paras. 23 - 26. Mr. Bailey did spend some time preparing his appeal. He filed an eight-page handwritten Notice of Appeal and he uploaded evidence to CaseLines but he did not file a factum on the appeal. There is no evidence that Mr. Bailey lost an opportunity to make money because he had to spend time on his appeal. It is, therefore, not appropriate to award Mr. Bailey any costs.

Lederer J.

McCarthy J.

Davies J.

Released: June 8, 2022