CITATION: Maynard v. Kerr, 2022 ONSC 4259
DIVISIONAL COURT FILE NO.: DC-21-2683
DATE: 2022/07/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Steven Maynard, Appellant/Responding party
AND
Sharon Kerr, Respondent/Moving party
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Mr. Maynard, self-represented
Mr. Clermont, for the Respondent/Moving party
HEARD: July 14, 2022
ENDORSEMENT
[1] Sharon Kerr, the landlord, moves to quash this appeal and for an order lifting the stay of the eviction order of the Landlord and Tenant Board.
[2] Section 134(3) of the Courts of Justice Act[^1] provides that on motion, a court to which an appeal is taken may, in a proper case, quash the appeal. I am satisfied that this is a proper case in which to exercise this power. Section 210(1) of the Residential Tenancies Act, 2006[^2] permits a person affected by an order of the Board to appeal to the Divisional Court, but only on a question of law. None of the grounds raised by Mr. Maynard, the tenant, in his notice of appeal raises a question of law as required by s. 210(1) of the Act. Accordingly, the motion to quash the appeal and to lift the stay of the eviction order is granted.
Background facts
[3] The landlord applied for an order to terminate the tenancy and to evict the tenant because the landlord requires possession of the rental unit for the purpose of residential occupation. The landlord also claimed compensation for each day the tenant remained in the unit after the termination date.
[4] The landlord’s application was heard by video conference on August 18, 2021. The landlord, her legal representative, and the tenant attended the hearing before the Board. The person intending to take possession of the rental unit also attended the hearing as a witness.
[5] On November 30, 2021, the Board member,
Terminated the tenancy between the landlord and the tenant as of December 11, 2021. The tenant was required to move out of the rental unit on or before December 11, 2021.
Ordered the tenant to pay to the landlord $4,276.35, as compensation for the use of the unit from July 1, 2021 to November 30, 2021.
Ordered the tenant to pay to the landlord $27.95 per day for compensation for the use of the unit from December 1, 2021 to the date the tenant moves out of the unit.
Ordered that in the event the tenant does not pay the landlord the full amount owing on or before December 11, 2021, the tenant would start to owe interest, such interest to be simple interest calculated from December 12, 2021 at 2.00% annually on the balance outstanding.
Ordered that if the unit was not vacated on or before December 11, 2021, then starting December 12, 2021, the landlord could file the Board’s order with the Court Enforcement Office.
Directed that on receipt of the order, the Court Enforcement Office is to give vacant possession of the unit to the landlord on or after December 12, 2021.
[6] On December 7, 2021, the landlord appealed to the Divisional Court from the Board’s order. The commencement of the appeal resulted in a stay of the eviction.
The Board’s order
[7] The Board member considered the evidence before her and provided comprehensive reasons. The Board member concluded that the landlord in good faith requires the possession of the rental unit for the purpose of residential occupation and that the landlord’s adult child genuinely intends to reside in the unit for at least one year.
[8] The Board member then considered s. 83 of the Act. Section 83 provides in part:
(1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.
[9] The tenant submitted that the Board was required to refuse the application because the landlord is in serious breach of her responsibilities under the Act to repair and maintain the rental unit. Regarding the tenant’s evidence, the Board member wrote:
S.M. [the tenant] did not testify as to the actual or even approximate dates when he informed S.K. [the landlord] of these issues, except for the first notification of the water freezing in the kitchen in December 2019. He claims that S.K. has been aware of the problems. He further testified that after the leak repair in August 2020, he did not have any communications with the Landlord until April 2021. The Tenant presented no independent evidence to support his oral testimony regarding the repair and maintenance issues.
I am not persuaded that the Tenant has demonstrated that the Landlord is, at the time of this hearing, in serious breach of her responsibilities under the Act.
[10] The Board member went further:
- Even if I was to accept the evidence presented by the Tenant as entirely accurate, I am not satisfied that the breaches, together or individually, rise to the level of seriousness as contemplated by the Act such that I must refuse to grant the application.
[11] The Board member observed that the tenant’s issues with repairs and maintenance could be addressed in his T6 application and that the tenant continues to have a remedy.
[12] On the evidence before her, the Board member found, on a balance of probabilities, that the tenant’s enforcement of his rights under the Ontario Human Rights Code was not the reason for the landlord’s application because the timing of the human rights complaint was reasonably removed from commencement of the landlord’s application to the Board.[^3] The Board member concluded that the tenant had failed to meet the onus to show that the reason for termination of the tenancy was the attempt to secure or enforce his legal rights, or that the landlord had acted in retaliation against his filing the complaint.
[13] The tenant also submitted to the Board that it would be unfair to order an eviction because of reasons relating to his mental health and physical limitations. The Board member reviewed the evidence before her and considered all the disclosed circumstances in accordance with s. 83(2) of the Act. The Board member found that it would be unfair to grant relief from eviction pursuant to s. 83(1) of the Act.[^4]
The Tenant’s notice of appeal
[14] In his notice of appeal to this court, the tenant identifies six grounds of appeal. They are:
Board Member Venhola erred in law when she determined that frozen pipes resulting in no hot or cold water in the kitchen (a “vital service”) don’t “rise to the level of seriousness as contemplated by the (Residential Tenancies) Act”.
Board Member Venhola erred in law when she determined that not providing a heat source that can heat rooms to 20 degrees Celsius (a “vital service”) doesn’t “rise to the level of seriousness as contemplated by the (Residential Tenancies) Act”.
Board Member Venhola erred in law when she determined that “it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the (Residential Tenancies) Act”.
Board Member Venhola erred in law when she arbitrarily ordered the Appellant to pay “to the Landlord $4,276.35, which represents compensation for the use of the unit from July 1, 2021 to November 30, 2021” without giving details of the calculation of the amount when no arrears are owed, including December 2021.
Board Member Venhola erred in law when she ordered the Appellant to vacate the premises 11 days after the Determinations and Orders [were] issued, November 30, 2021 when statutory provisions allow 30 days to appeal an eviction.
Board Member Venhola erred in law when she arbitrarily ordered the Appellant to pay “to the Landord $27.95 per day for compensation for the use of the unit from December 1, 2021 to the date the Tenant moves out of the unit” without giving details of the calculation of the amount.
Analysis
[15] The landlord submits that the appeal should be quashed on the basis that it is devoid of merit because it does not raise an issue of law. In addition, the landlord submits that the appeal should be quashed as an abuse of process because the appeal is about supplementing the evidentiary record in order to challenge the findings of fact made by the Board member.
[16] The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank.[^5] While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: Meglis v. Lackan.[^6]
[17] In Canada (Director of Investigation & Research) v. Southam Inc.[^7], the Supreme Court of Canada described the difference between a question of law and a question of fact:
Briefly stated, questions of law are questions about what the correct legal test is; questions of facts are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests.
[18] The first two grounds of appeal squarely reflect the tenant’s disagreement with the Board member’s determination that, on the evidence before her, the landlord was not in serious breach of her responsibilities under the Act. These grounds of appeal relate to the Board member’s acceptance, rejection, and weighing of the evidence. They are not questions of law, but rather questions of mixed fact and law as they are about whether the facts as found by the Board member satisfy the legal test.
[19] The third ground of appeal alleged is that the Board member erred in law in determining that it would be unfair to grant relief from eviction pursuant to s. 83(1) of the Act. With respect, describing a ground of appeal as an error in law does not make it so. The tenant seeks to challenge the Board member’s consideration of the circumstances and her conclusion that it would be unfair to grant relief from eviction. This is not a question of law.
[20] The fourth, fifth, and sixth grounds of appeal do not raise a question of law as required by s. 210(1) of the Act. Each of these grounds involves a discretionary decision that the Board member was entitled to make.
[21] Accordingly, I find that the appeal does not raise any issues of law and it is, therefore, manifestly devoid of merit.
[22] As I have determined that the appeal should be quashed on the basis that it is devoid of merit, I need not consider whether the appeal is also an abuse of process.
Conclusion
[23] For these reasons, the appeal is quashed and the stay of the Board’s eviction order is lifted. Ms. Kerr may file the Board’s eviction order with the sheriff on July 29, 2022.
[24] Ms. Kerr is the successful party and is presumptively entitled to her costs. In the event the parties are unable to agree on costs, they may make written submissions limited to a maximum of three pages. Ms. Kerr is to deliver her costs submissions by August 5, 2022. Mr. Maynard shall deliver his responding costs submissions by August 19, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Madam Justice Robyn M. Ryan Bell
Date: July 21, 2022
CITATION: Maynard v. Kerr, 2022 ONSC 4259
DIVISIONAL COURT FILE NO.: DC-21-2683
DATE: 2022/07/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Steven Maynard, Appellant/Responding party
AND
Sharon Kerr, Respondent/Moving party
COUNSEL: Mr. Maynard, self-represented
Mr. Clermont, for the Respondent/Moving party
ENDORSEMENT
Justice Ryan Bell
Released: July 21, 2022
[^1]: R.S.O. 1990, c. C.43. [^2]: S.O. 2006, c. 17. [^3]: Order, para. 42. [^4]: Order, para. 52. [^5]: (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. [^6]: 2020 ONSC 5049, at para. 23. [^7]: 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.