CITATION: MacMillan v. Martin, 2022 ONSC 357
DIVISIONAL COURT FILE NO.: DC-21-1235
DATE: 14012022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOUG MACMILLAN
Applicant (Respondent in appeal)
– and –
ANDREW MARTIN
Respondent (Appellant)
Paul Portman, for the Applicant (Respondent in appeal)
Brian A. Blumenthal and Katia Snukal (Counsel for the Landlord and Tenant Board)
Self-Represented
HEARD: October 1, 2021
REASONS FOR DECISION
M.L. EDWARDS, RSJ:
Overview
[1] These matters came before me as a single judge of the Divisional Court pursuant to the August 27, 2021 direction of Associate Justice Faye McWatt.
[2] The underlying appeals of Mr. Martin relate to two Orders of the Landlord and Tenant Board (“the LTB”), pursuant to which eviction orders were made. The Orders relate to unpaid arrears of rent in an amount of approximately $1,200 and an application by the landlord Mr. MacMillan for personal use of premises.
[3] The matter originally came before me on August 27, 2021. It was subsequently adjourned to October 1, 2021, at which time the appeals would be heard together with a contempt motion. The contempt motion arose out of the actions of Mr. MacMillan in relation to the eviction of Mr. Martin from the subject premises, an eviction which occurred contrary to a Stay Order made by this court on March 1, 2021 (“the Stay Order”).
The Facts
[4] The Respondent, Doug MacMillan, (hereinafter interchangeably referred to either as MacMillan or the Landlord), owns the premises located at 151 Simcoe Street, Orillia, Ontario. The Appellant, Andrew Martin, (hereinafter interchangeably referred to as Martin or the Tenant), rented Unit C from MacMillan (hereinafter the Premises).
[5] The Landlord commenced two applications before the LTB for orders to terminate the tenancy and to evict the Tenant. Both applications were heard on January 20, 2020. The applications resulted in Orders from the LTB, referred to as Orders CEL 91018-19 and CEL 91363-19.
[6] Pursuant to Order CEL 91018-19, the LTB determined that the Tenant had not paid rent which was owed and therefore ordered termination of the tenancy subject to the Tenant’s right to void the eviction order by paying the full amount of the rent owing prior to the enforcement of the eviction order by the sheriff. I will refer to Order CEL 91018-19 as the Rent Arrears Order.
[7] Pursuant to Order CEL 91363-19, the LTB allowed the Landlord’s application to evict the Tenant and to terminate the tenancy. The LTB determined that the Landlord, in good faith, required the possession of the premises for the purposes of residential occupation. I will refer to Order CEL 91363-19 as the Possession Order. Both Orders of the LTB were largely fact driven.
[8] On February 11, 2020, the Tenant requested a review of both Orders of the LTB on the basis that the Orders contained a serious error of law and that he had not been reasonably able to participate in the hearing. The Tenant also sought orders that stayed the Orders until the requests for review had been determined. Stay Orders were granted by the LTB on February 19, 2020 by the LTB.
[9] The Tenant’s request for review of both Orders was heard by videoconference on January 19, 2021. On February 12, 2021, the LTB issued its review decision denying the Tenant’s request to review both Orders. In denying the Tenant’s review request, the LTB determined that neither Order contained a serious error of law, and as such the stays of both Orders were lifted by the LTB.
[10] On February 26, 2021, the Tenant filed a Notice of Appeal to the Divisional Court in respect of both Orders. On March 1, 2021, the Divisional Court issued a Certificate of Stay (The Stay Order) which provided that the LTB Orders issued on February 12, 2021 were stayed.
[11] On March 23, 2021, Corbett J., in his capacity as the case management judge, held a teleconference with the parties pursuant to which amongst other things, Corbett J. determined that the appeal would be heard before a single judge of the Divisional Court in August 2021.
[12] On June 3, 2021, the Landlord enlisted the assistance of the Ontario Provincial Police (“OPP”) and as a result the Tenant was evicted from the premises, together with all of his possessions.
[13] The Tenant sought the assistance of Corbett J. in relation to the eviction of June 3, 2021, as a result of which various directions were made by Corbett J..
[14] On June 11, 2021, Corbett J. conducted a case management teleconference with the parties together with counsel for the LTB. At that time, Corbett J. was advised that the Landlord took the position that he had re-leased the premises to new tenants who were in actual occupation of the premises. As such the landlord took the position that he could not restore Mr. Martin to the premises.
[15] Subsequent to the case management teleconference of June 11, 2021, Corbett J. issued various directions. Included in the directions was the following:
Mr. MacMillan has forcibly evicted Mr. Martin from the rental premises. It appears to be uncontested that this eviction was a breach of the Divisional Court’s Order staying enforcement of the eviction Orders of the Landlord and Tenant Board. There is no issue that Mr. MacMillan had notice of the stay order – it was discussed with this court in prior case management conferences. At the case management teleconference, the court explored rectifying Mr. MacMillan’s apparently illegal eviction of Mr. Martin and leaving it to the appeal court to address any damages arising from the eviction. Mr. MacMillan advised the court that he has re-let the premises and that new tenants are now in possession Pursuant to the direction of the Order made by Corbett J. on June 11, 2021, Mr. MacMillan was advised the court would consider citing Mr. MacMillan for contempt of court. Further reasons and directions were provided by Corbett J. pursuant to his Endorsement of June 25, 2021. In his Endorsement of June 25, 2021 Corbett J., amongst other things, reflected the position of the LTB as follows:
The LTB has taken the position with this court that the court has jurisdiction over the parties and to address a breach of this court’s stay order, but that this jurisdiction does not extend to make an order removing new tenants from premises in order to restore a prior tenant to his home. The Board takes the position, therefore, that while it may be open to this court to restore a tenant to his home if it is still vacant, the court may not do so if it would be necessary to displace another tenant in the process: counsel argues that exclusive jurisdiction to do this lies in the LTB.
[16] Given the position of Mr. MacMillan that he had re-let the premises and the position of the LTB that this court does not have jurisdiction to displace another tenant, this court granted intervenor status to the Advocacy Centre for Tenants Ontario (“ACTO”). ACTO is a provincial housing law clinic which advances the rights, interests and systemic concerns of tenants, cooperative housing members, and precariously housed and homeless people in Ontario. Given the position of the LTB that it has the exclusive jurisdiction to decide whether and if to put Mr. Martin back into physical possession of his home when third parties are occupying it, ACTO as the intervenor in this matter argues that this court and the LTB each have the power, authority, jurisdiction and duty to right the type of wrong that has occurred in this case, specifically the wrongful eviction of Mr. Martin contrary to the Stay Order of the Divisional Court.
The Contempt Motion
[17] When this matter came before me on October 1, 2021, I sought submissions with respect to the order in which the issues before the court as directed by Corbett J. should be dealt with. Having heard those submissions I concluded that the contempt motion should be heard first, followed by the penalty phase of the contempt motion. I came to this conclusion because if Mr. MacMillan was in contempt, he would have to be given the opportunity to purge his contempt by reinstating Mr. Martin as a tenant. If Mr Martin was restored to the premises pending the determination of Mr Martin’s appeal, then the jurisdiction issue raised by the LTB and the Intervenor would become moot.
[18] I heard argument with respect to the contempt motion and provided brief oral reasons finding Mr. MacMillan in contempt. I was satisfied that pursuant to the direction provided by the Court of Appeal in Hobbs v. Hobbs, 2008 ONCA 598, 2008 O.J. No. 3312 (240 OAC 202 at para. 26), that the three-part test for a finding of contempt had been made out, specifically:
a. there was a clear and unequivocal order as to what must be done or not done.
b. there was a deliberate and willful disobedience of the order; and
c. there was proof of these matters on a criminal standard, i.e. beyond a reasonable doubt.
[19] As to the existence of a clear and unequivocal order, The Certificate of Stay of the Divisional Court dated March 1, 2021, in my view, is clear when it states:
The Registrar of the Divisional Court certifies that, pursuant to s. 25(1) of Statutory Procedure Act, R.S.O. 1990, c S 2022, the order of the Landlord and Tenant dated February 12, 2021 has been stayed by an appeal to this court.
[20] As to whether there was a deliberate or willful disobedience of the Order and whether there has been proof of such disobedience beyond a reasonable doubt, there was - in my view, no doubt that Mr. MacMillan knew what he was doing on June 3, 2021 when he enlisted the assistance of the OPP with respect to the eviction of Mr. Martin from the premises. Mr. MacMillan had been unsuccessful in obtaining the assistance of the sheriff on at least three occasions. Rather than seeking the further assistance of the sheriff, Mr. MacMillan took the law into his own hands by obtaining the assistance of the OPP.
[21] Further evidence with respect to Mr. MacMillan’s contempt can be found in the material that he filed with the court, specifically the affidavit of David Carpenter sworn on August 27, 2021. Mr. Carpenter was then residing in the premises previously occupied by Mr. Martin. In his affidavit Mr. Carpenter references Mr. MacMillan’s attempts to enlist the assistance of the sheriff and states amongst other things:
It was only upon the sheriff failing to come three times that Doug openly took the issue into his own hands believing he was justified to do so. [Emphasis added]
We were both in favour of this as there were legitimate eviction orders with sheriff enforcement fees paid. It should not come as any surprise that Doug had enough and merely executed the eviction himself that the sheriff was ordered to do. Doug should almost be commended and any proceedings towards Doug should be dismissed in my opinion.
[22] It is clear to me that Mr. MacMillan clearly understood the impact of the Stay Order made by the Divisional Court. Mr. MacMillan simply took the law into his own hands when he evicted Mr. Martin from the premises on June 3, 2021. As such, a finding of contempt was made against Mr. MacMillan.
[23] When this matter moved to the penalty phase, Mr. MacMillan was given an opportunity to purge his contempt. In that regard, Mr. MacMillan agreed that he would pay for Mr. Martin’s out of pocket expenses that he had incurred because of the wrongful eviction, which expenses were agreed to in the amount of $4,000. Mr. MacMillan also agreed that pending the court’s determination of the appeal of the LTB’s Orders, that Mr. Martin would be allowed to move back into the premises. The payment of the $4,000 and the reinstatement of Mr. Martin to the premises were all to occur no later than October 8, 2021. Subsequent to the hearing of this matter on October 1, 2021, I was advised by counsel that the payment of the $4,000 and the reinstatement of Mr. Martin had taken place and, as such, I was satisfied that Mr. MacMillan had purged his contempt.
[24] The only remaining issues that this court has before it are the appeals of the LTB Orders and the issue raised by counsel for ACTO. As it relates to the jurisdictional issue raised by ACTO to reinstate a tenant, I am satisfied that that issue is now moot given that Mr. Martin has been reinstated to his former position occupying the premises pending the determination of this appeal. As such, the only issue that this court is left with are the merits of Mr. Martin’s appeal of the LTB Orders.
Court’s Jurisdiction
[25] The Divisional Court has jurisdiction to hear an appeal from the LTB under S.210 (1) of the RTA, but only on a question of law.
Standard of Review
[26] An appeal from a decision of the LTB is restricted to questions of law. This is a statutory appeal on a question of law and as such the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law. Where there are questions of fairness raised then the court must determine whether the appropriate level of fairness was afforded.
Position of Mr. Martin
[27] Mr. Martin asserts a number of grounds of appeal. Underlying a number of his arguments is the suggestion he was denied procedural fairness and that the decision of the LTB demonstrated it was made with bias against him. Mr. Martin also argues that there was an error of law in the decisions of the LTB.
Position of Mr. MacMillan
[28] Contrary to the position asserted by Mr. Martin, it is argued by Mr. MacMillan that the record before the LTB demonstrates that Mr. Martin was afforded every opportunity to present his case to the LTB and that there is no evidence let alone any appearance of bias in the decisions of the LTB. As it relates to the issue of whether there is any demonstrable error in law in the decisions of the LTB, Mr. MacMillan asserts that no such error in law exists.
The Orders of the LTB Before This Court
[29] Mr. MacMillan obtained 2 orders from the LTB terminating Mr. Martin’s tenancy. The first was for non-payment of rent. The second was on the basis that the landlord required the premises for his own personal use. Mr. MacMillan was successful in both applications. On January 27, 2020, the LTB order of Randy Aulbrook terminated Mr. Martin’s tenancy. Mr. Martin sought a review of the Aulbrook orders. The review was heard via video conference on January 19, 2021 by LTB board member Laura Hartslief. The original Aulbrook orders were confirmed.
Procedural Fairness and Bias
[30] As it relates to Mr. Martin’s argument that he was denied procedural fairness as a result of the review hearing being held virtually, I am more than satisfied that given the exigencies of the Covid pandemic that proceeding with the hearing virtually was fair and necessary. There is nothing in the record to suggest Mr. Martin could not hear or understand what was occurring during the virtual hearing. There is nothing in the evidence to suggest that Mr. Martin was unable to properly respond to the arguments as they unfolded. A virtual hearing may not be a perfect substitute for an in-person hearing. On the record before me and recognizing that the Covid pandemic has forced everyone to adapt, I am satisfied that the conduct of the hearing before board member Laura Hartslief was fair to all parties including Mr. Martin.
[31] As for the remaining grounds of appeal asserted by Mr Martin, these can be readily dealt with. The orders under appeal reflect factual determinations that were open to the LTB. Specifically, on the evidence the LTB found that Mr. Martin had not paid approximately $1200 in rent to the landlord. The LTB also found on the evidence that the landlord required the premises for his own personal use. On the evidence before the LTB these factual determinations were open to the LTB to make and demonstrate no error of law. Mr. Martin in the appeal before this court essentially seeks to reargue the case that he argued before the LTB. On the record before this court, there is no demonstrable error of law and as such Mr. Martin’s appeals are dismissed and the eviction orders of the LTB are restored.
Postscript
[32] The relationship between the tenant and the landlord may have been irreparably damaged by the proceedings before the LTB and before this court. The last 3 months since this matter came before the Court on October 1, 2021 may have changed that relationship such that a landlord and tenant relationship could continue. It is not the role of this court to dictate whether that relationship should or should not continue other than to suggest to the parties to give this serious consideration. If Mr. MacMillan does not want to continue the relationship, he is entitled to the benefit of the eviction orders which he may rely upon. However, this court will exercise its inherent jurisdiction to stay the enforcement of those eviction orders for a period of 30 days to allow Mr. Martin to find new premises (provided he pays the rent due during those 30 days).
Orders of this Court
[33] Mr. Martin’s appeals are dismissed without costs. The eviction orders of the LTB are restored. The eviction orders may not be executed for 30 days from the date of these reasons.
Costs
[34] In my view, there has been divided success on the issues before the Court. Mr. MacMillan has succeeded on the appeal. Mr. MacMillan, however, caused this matter to be unnecessarily delayed by his actions of June 3, and he was not successful on the contempt motion. With that divided success, I make no award of costs to either Mr. Martin or to Mr. MacMillan. No costs were sought by the LTB and none by the Intervenor and none are awarded. I do, however, wish to acknowledge the help provided by both counsel for the Intervenor and the LTB.
The Honourable Justice M.L. Edwards,
Regional Senior Justice
Released: January 14, 2022
CITATION: MacMillan v. Martin, 2022 ONSC 357
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOUG MACMILLAN
Applicant (Respondent in appeal)
– and –
ANDREW MARTIN
Respondent (Appellant)
REASONS FOR decision
Regional Senior Justice M.L. Edwards
Released: January 14, 2022