Court File and Parties
CITATION: Zareski v. Umar, 2022 ONSC 356
DIVISIONAL COURT FILE NO.: 774/21
LANDLORD AND TENANT FILE NO.: HOL-10095-21
DATE: 20220119
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: john zareski, Appellant
AND:
sahar umar, Respondent
BEFORE: Swinton, Lederer, and Ryan Bell JJ.
COUNSEL: John Zareski, self-represented Appellant
Timothy M. Duggan, for the Respondent
HEARD at Toronto (by videoconference): January 13, 2022
ENDORSEMENT
Overview
[1] The appellant tenant appeals an order of the Landlord and Tenant Board (the “Board”) dated August 24, 2021 that terminated his tenancy with the respondent landlord on the grounds of persistent late payment of rent and the landlord’s need of the residential unit for use by a family member.
Background
[2] The appellant did not attend the hearing of the Board on July 28, 2021. The Notice of Hearing had been mailed by the Board on June 28, 2021, and it was deemed received on July 3, 2021.
[3] Although the appellant did not appear at the hearing, a legal representative appeared on his behalf. The representative had been contacted by the appellant a few days earlier and retained the previous day. The representative asked for an adjournment on the grounds that the appellant could not get time off work to attend the hearing. The appellant had also filed an application of his own the previous day alleging harassment by the respondent in December 2020. He wished to have his application heard with the respondent’s two applications.
[4] The Board refused the adjournment, noting the lack of any documentary evidence to support the appellant’s claim that he could not get off work, as well as the timing of the request for an adjournment and the late retention of the representative. The Board also concluded that the appellant’s application need not be heard at the same time as the respondent’s applications, as the subject matter of his application did not overlap with the two applications before the Board, and the respondent would be prejudiced by an adjournment.
[5] The Board offered the appellant’s representative an opportunity to contact the appellant to allow him to participate by telephone. The appellant’s representative refused the offer, although he remained during the hearing to conduct cross-examinations of the respondent’s witnesses and to make submissions.
[6] The Board found that the appellant had persistently paid rent late over a thirteen month period. The member also found that the respondent, in good faith, required the rental premises for use by her husband’s parents. The Board terminated the tenancy and concluded that it would be unfair to grant relief from eviction pursuant to s. 83 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).
Fresh Evidence
[7] The appellant entitled his factum for the appeal as relating to a motion for fresh evidence. However, he served no Notice of Motion to admit fresh evidence nor any affidavit in support. Thus, there was no proper motion to admit fresh evidence before the Court, and evidence that was not before the Board was not considered on this appeal.
The Court’s jurisdiction on appeal
[8] An appeal lies to this Court only on a question of law (see s. 210 of the RTA).
Analysis
[9] The appellant has not demonstrated any error of law. The Board reasonably refused to grant an adjournment in the circumstances, given the lack of documentary evidence respecting the appellant’s employment situation and the timing of both his retention of a representative and the filing of his application against the respondent. The Board also reasonably concluded that the appellant’s application did not overlap with the respondent’s applications.
[10] There was no denial of procedural fairness. The Board offered to let the appellant participate by telephone, and this was refused. The appellant also had a legal representative who participated on his behalf.
[11] The appellant has not shown that the Board made any legal error when it granted the respondent’s applications to terminate the tenancy. While the appellant argues that the respondent was acting in bad faith, there was no evidence before the Board to support this allegation, nor was there any evidence to counter the respondent’s evidence concerning the late payment of rent. While the appellant made submissions before this Court about the respondent’s past behaviour, which he characterizes as harassment, that evidence was not before the Board, and it is not properly before this Court.
[12] As the appellant has demonstrated no error of law by the Board, the appeal is dismissed. While the stay of the Board’s order is now lifted, the Court will exercise its discretion to delay the enforcement of the eviction order until March 1, 2022, given that the rent is current, a young child will be affected by the eviction, and the present public health circumstances create difficulties for all.
Order
[13] An order is to go as follows:
The appeal is dismissed.
The stay of the Board’s eviction order is lifted.
The Sheriff shall not enforce the eviction order before March 1, 2022.
Costs to the respondent are payable by the appellant in the amount of $5,000.00 all inclusive.
The appellant’s approval of the form and content of a draft order is dispensed with.
Swinton J.
Lederer J.
Ryan Bell J.
Released: January 19, 2022