Citation: Abraham v. 5 Linwood Holdings, 2022 ONSC 354
DIVISIONAL COURT FILE NO.: 828/21
LANDLORD AND TENANT BOARD FILE NO.: SWL-52700-21
DATE: 20220119
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Melville Abraham and Rema Abraham, Appellants
AND: 5 Linwood Holdings, Respondent
BEFORE: Swinton, Lederer, and Ryan Bell JJ.
COUNSEL: Melville Abraham and Rema Abraham, self-represented
Delaram Mehdizadeh Jafari, for the Respondent
HEARD at Toronto (by videoconference): January 13, 2022
ENDORSEMENT
Overview
[1] The appellant tenants appeal an order of the Landlord and Tenant Board (the “Board”) dated September 29, 2021 that terminated their tenancy with the respondent landlord. A request by the tenants to review the order was denied by the Board on October 8, 2021.
The Board’s Decision
[2] The landlord served three notices on the tenants respecting the termination of their tenancy: an N5, interference with the reasonable enjoyment of the rights of the landlord and other residents; an N6, an illegal act; and an N7, serious impairment of the safety of another person in the residential complex. As a preliminary matter at the hearing, the Board found that the three notices served on the appellants were valid.
[3] The Board then found that Mr. Abraham had committed an illegal act in the residential premises and seriously impaired the safety of others in the complex when he threatened an employee of the respondent, Mr. Belrose, with a machete (Reasons, para. 6). The Board also found that the appellants had behaved aggressively towards other tenants and the landlord’s staff and had not paid the water bill as required (Reasons, para. 9).
[4] The Board further concluded that the appellants’ behaviour constituted substantial interference with the landlord’s and other tenants’ reasonable enjoyment of the premises and their lawful rights and privileges, stating at para. 13 of the Reasons:
The Tenant, Melville Abraham, threatened another tenant with a machete. The Tenants have also failed to pay the water bill and have acted aggressively towards other tenants and the Landlord’s staff. I find this behaviour has substantially interfered with the Landlord’s and other tenants’ reasonable enjoyment and lawful rights and privileges.
[5] The Board ordered termination of the tenancy and determined that it would be unfair to grant relief from eviction pursuant to s. 83(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).
This Court’s jurisdiction on an appeal
[6] An appeal lies to this Court only on a question of law: see s. 210 of the RTA.
Analysis
The constitutional issue
[7] The appellants’ primary argument is that the Board erred in failing to find that s. 75 of the RTA, which permits termination of a tenancy because of an illegal act without a finding of guilt in a criminal proceeding, is unconstitutional.
[8] Subsection 61(1) of the RTA permits a landlord to give notice of termination of a tenancy if the tenant or another occupant of the rental unit commits an illegal act or permits a person to do so in the rental unit or the residential complex. Subsection 75(1) permits the Board to terminate a tenancy or order eviction on the basis of a notice pursuant to s. 61 whether or not the tenant or other person has been convicted of an offence relating to an illegal act. The appellants argue that this provision is unconstitutional because it violates Mr. Abraham’s constitutional right to a presumption of innocence, and it is outside provincial jurisdiction to enact. Although Mr. Abraham was charged with two criminal offences respecting the incident with the machete, he has not been tried for them.
[9] The transcript of the Board hearing shows that this constitutional argument was not raised before the Board by the appellants’ legal representative (see Transcript, pp. 92-93). Moreover, no Notice of Constitutional Question was ever served, despite the requirement in s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Therefore, it is too late to raise this issue on an appeal of the Board’s order.
[10] Moreover, this argument would have no impact on the outcome of this appeal, as the Board made findings of interference with reasonable enjoyment and serious impairment of the safety of others as well as an illegal act.
The validity of the landlord’s notices
[11] At the Board hearing, the appellants’ representative argued that the notices of termination served on the tenants were not proper because they were signed by Ms. Thomas. The Board heard evidence from Ms. Thomas that she was a property manager for the landlord and employed by the landlord.
[12] Subsection 43(1)(c) of the RTA permits a notice of termination by the landlord to be signed by the landlord or their agent. The Board was satisfied, on the evidence, that Ms. Thomas was an agent of the landlord, and the notices were valid. This was a finding that the Board member was entitled to make on the evidence before him and in accordance with the terms of the Act. He was not required to demand further documentation from the landlord, as the appellants argue.
The treatment of the evidence
[13] The appellants also challenge the treatment of the evidence of some of the respondent’s witnesses. In particular, they challenge the Board’s finding that Mr. Abraham threatened Mr. Belrose with a machete.
[14] The transcript shows that the Board had evidence from the landlord’s witnesses that Mr. Abraham threatened Mr. Belrose with a machete. The Board member was entitled to accept this evidence, particularly given that the appellants did not lead contradictory evidence.
[15] The appellants also argue that there were inconsistencies in the evidence that the Board should have considered. However, the Board reasonably held that these inconsistencies were not material.
[16] As stated above, an appeal lies to the Court only on a question of law. The appellants disagree with the Board’s findings of credibility and conclusions of fact, but they have failed to show that the Board committed any error of law in the treatment of the evidence.
The treatment of [s. 83(1)](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html) of the [RTA](https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html)
[17] The Board was well aware of the obligation to consider s. 83(1), as the transcript shows that the member referred to it numerous times during the hearing. The appellants were represented by a licensed paralegal, but they did not request a delay of any eviction order. Ultimately, the Board member exercised his discretion not to grant relief from eviction in the circumstances of the case. The reasons provided were adequate to allow appellate review.
Conclusion
[18] The appellants have failed to identify any error of law on the part of the Board or any denial of procedural fairness. Accordingly, their appeal is dismissed.
[19] While the stay of the Board’s order will be lifted, the Court exercises its discretion to stay the execution of the eviction order until the beginning of March, given that the appellants have paid January rent, their children will be affected by this order, and the present public health conditions are difficult for all.
[20] An order is to go as follows:
The appeal is dismissed.
The stay of the Board’s eviction order is lifted.
The Sheriff shall take no steps to carry out the eviction order before March 1, 2022.
Costs to the respondent are fixed at $4,000.00 all inclusive, payable by the appellants.
The appellants’ approval of the form and content of a draft order is dispensed with.
Swinton J.
Lederer J.
Ryan Bell J.
Released: January 19, 2022