[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Morgan v. Domian, 2022 ONSC 4164
DIVISIONAL COURT FILE NO.: 153/22
LANDLORD AND TENANT BOARD FILE NO.: TST-22775-21, TSL-19590-21
DATE: 20220715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Stewart and Nishikawa JJ.
BETWEEN:
Jennifer Morgan
Appellant
– and –
Ray Domian and the Landlord and Tenant Board
Respondents
Jennifer Morgan, Self-Represented
Ray Domian, Self-Represented
Valerie Crystal, for the Respondent the Landlord and Tenant Board
HEARD at Toronto (by videoconference): July 11, 2022
Stewart J.
Nature of the Appeal
[1] The Appellant, Jennifer Morgan (the “Tenant”), appeals from a series of decisions of the Landlord and Tenant Board, as follows:
(a) The Interim Order of Member Diane Wade dated July 28, 2021 in a proceeding seeking a termination of the tenancy initiated by the Respondent, Ray Domian (the “Landlord”) which set out a schedule and conditions under which the Tenant could pursue her issues raised pursuant to s. 82 of the Residential Tenancies Act in the same proceeding, including a requirement that she pay monthly rent in full to the Landlord until the application was fully resolved;
(b) The Order of Member Steven Mastoras dated December 8, 2021 in which he found that the Tenant’s application pursuant to s. 82 had been abandoned and therefore dismissed it; and
(c) The Order of Member Steven Mastoras dated January 26, 2022 in the proceeding commenced by the Landlord seeking an order terminating the tenancy in which the Tenant was found to have not complied with the conditions imposed by the Board and, in particular, had not paid rent in full to the Landlord as had been required. This Order also set out the future payments that would be necessary for the Tenant to make in order to avoid termination of the tenancy and eviction, and the deadlines for doing so.
[2] A further “T6” application made by the Tenant relating to her complaints of alleged failure by the Landlord to maintain the premises relating to this tenancy remains active at the Landlord and Tenant Board and has not yet been determined by it.
[3] The Tenant did not file a Factum on this appeal nor did she comply with the judicial orders made in pre-hearing conferences directing her to organize and upload to CaseLines all materials required for the hearing of her appeal and imposing strict timelines for doing so. This non-compliance has made it challenging for this panel to discern with any ease the specific information relevant to the determination of the issues raised by the Tenant.
[4] The order for eviction under appeal has been stayed pending the disposition of her appeal. According to the Landlord’s submissions, the Tenant has continued to remain in occupation of the premises without paying the rent owing or ordered.
[5] The Landlord did not file any material responding to this appeal, but he did attend in person before the Court to advise that his desire is that the termination of the tenancy be confirmed and the stay of the order for eviction of the Tenant be lifted so that it may be enforced without further delay.
Jurisdiction and Standard of Review
[6] Pursuant to s. 210 of the Residential Tenancies Act, an appeal from an order of the Board lies to this Court only on a question of law. Where a party seeks to appeal an order of the Board on a question of fact or of mixed fact and law, this Court does not have jurisdiction to entertain the appeal (see: Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.) at para 26).
[7] If a question of law has been identified, the standard of review is correctness (see: Zhou v. Cherisholme Living, 2020 ONSC 500 (Div. Ct.) at paras. 36-37).
[8] To the extent the Tenant has raised any arguments of denial of procedural fairness, there is no definite standard of review for determining such issues. The standard to be applied will vary according to the nature of the issue, the circumstances in which it arose and its effect on the outcome or decision.
Discussion
[9] The Tenant takes issue with the process that led to the determination by the Member at the hearing held on November 30, 2021 to hear the Landlord’s claim as scheduled before dealing with the Tenant’s s. 82 concerns. To the extent that this approach was employed, doing so fell within the discretion of the Member to manage the Board’s process and to ensure that the evidence and submissions on the issues were presented in the most orderly and coherent fashion.
[10] The Tenant also complains that the Member did not deal with her “T6” application at this same hearing despite the fact that no order had been made requiring that to occur and her application in that regard was not before him. There was no error of law or procedural unfairness in failing to hear the matters raised in the “T6” application. As noted, the “T6” application remains outstanding at the Board.
[11] Because the Tenant’s “T6” application remains outstanding and has not yet been heard and decided by the Board, an appeal of it, which the Tenant also seeks in this proceeding, is therefore premature and not available to her.
[12] At the hearing on November 30, 2021 it was apparent that there was a dispute as to whether rent arrears were owing by the Tenant to the Landlord and in what amount. The Tenant admitted to not having paid rent for the month of November 2021 and maintained that only $1022 was owing for rent which was offset fully by various maintenance expenses, other payments and various entitlements to do so. The Landlord took issue with these assertions and had provided an updated form to the Board declaring that $9370.00 in rent arrears was owing.
[13] The Member advised the Tenant that in order to consider her position he would require her to produce all documentation concerning alleged rent paid by her and corresponding rent receipts for the February through November 2021 period by the end of the hearing day. He provided her with an email address to which the documents were to be sent. After expressing some frustration, the Tenant then left the proceeding. After attempting to determine whether the Tenant was in a breakout room and calling out to see if she was in the wait room, the Member deemed that the Tenant had not appeared at the hearing to support the claims in her s. 82 application and therefore it had been abandoned. Accordingly, the application was dismissed.
[14] To the extent dealing with the s. 82 matter in that way and in her absence may be argued by the Tenant as constituting procedural unfairness, I do not agree. The transcript of the proceedings suggests that she was frustrated by the request for proof of her assertions by the Member and it records that she simply left the hearing soon thereafter and did not re-join at the appointed time as had been requested. To the extent she may have been experiencing connectivity issues, as she now claims, nothing to that effect was communicated to the Board at the time or thereafter or before the Order of December 8, 2021 was issued. The Tenant did not send the requested documents to the email address given to her. Further, no effort was made by the Tenant to seek a reconsideration of the Order after it was made. As a result, I would not give effect to this ground of appeal.
[15] With respect to the other issues raised by the Tenant in her Notice of Appeal and Amended Notice of Appeal, all of these issues reflect a disagreement with the findings of fact of the Member that rent was owed and his calculations of the amounts identified as being the arrears owing. These are not questions of law but are in the nature of findings of fact which are not capable of being the subject of appeal. Accordingly, this Court lacks the statutory jurisdiction to interfere with this decision. For that reason, the appeal must fail.
Conclusion
[16] For these reasons, this appeal is dismissed in its entirety. The stay of the order for eviction of the Tenant from the subject premises is lifted and the Landlord is at liberty to take such steps to enforce it as may be properly available to him.
Costs
[17] Both the Tenant and the Landlord were self-represented on this appeal. Neither party filed a Factum. The Landlord and Tenant Board was represented by counsel, did not file a Factum and does not seek costs as against any party. In all of the circumstances, there will be no order as to costs.
Stewart J.
I agree _______________________________
Swinton J.
I agree _______________________________
Nishikawa J.
Released: July 15, 2022
CITATION: Morgan v. Domian, 2022 ONSC 4164
DIVISIONAL COURT FILE NO.: 153/22
LANDLORD AND TENANT BOARD FILE NO.: TST-22775-21, TSL-19590-21
DATE: 20220715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Stewart and Nishikawa JJ.
BETWEEN:
Jennifer Morgan
Appellant
– and –
Ray Domian and the Landlord and Tenant Board
Respondents
REASONS FOR Decision
Stewart J.
Released: July 15, 2022