CITATION: Draxl v. Truevine, 2022 ONSC 4646
DIVISIONAL COURT FILE NO.: 318/22 DATE: 20220810
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JENNIFER DRAXL
Jennifer Draxl, self-represented
Appellant/Tenant/Respondent to Motion
– and –
TRUEVINE INVESTMENTS LTD.
Spencer F. Toole, for the Respondent/Landlord/Moving Party
Respondent/Landlord/Moving Party
HEARD at Toronto (by videoconference): August 10, 2022
Matheson J. (Orally)
[1] The landlord Truevine Investments Ltd. has brought this motion seeking an order either quashing the tenant’s appeal or alternatively lifting the automatic stay pending the appeal.
[2] In the appeal, the tenant challenges the Landlord and Tenant Board (“LTB”) order dated June 8, 2022, in which the LTB confirmed a prior eviction order.
[3] Very briefly, the background to this matter begins with a dialogue between the landlord and the tenant giving rise to what was regarded by the landlord as a settlement. The landlord then applied to the LTB without notice to the tenant and obtained an eviction order based upon the position that there had been a settlement.
[4] The tenant then moved to set aside the LTB eviction order, taking the position that there was no settlement.
[5] The set aside motion was heard in January 2022. Initially, the tenant’s brother attended to represent the tenant but over the course of a dialogue in that regard, the LTB determined that he was not permitted to do so. The hearing was held down until the tenant joined the hearing and proceeded with the tenant representing herself.
[6] By order dated January 12, 2022, the LTB dismissed the motion to set aside the eviction order and upheld the settlement. The tenant then requested a review of that order. By an order dated June 8, 2022, the LTB dismissed the review request and ordered that the eviction be effective as of June 15, 2022.
[7] The main issues raised by the tenant in both her motion to set aside and her review request were, first, whether as a matter of procedural fairness she had a reasonable opportunity to participate in the hearing of her set aside motion, and second, whether there was actually a settlement.
[8] After the review motion was unsuccessful, the tenant commenced her appeal in Divisional Court. Because she appealed an eviction order, she also obtained an automatic stay of that eviction order.
[9] In the course of case management in this court, the parties had a case management conference in front of Nishikawa J. on June 21, 2022. As a result of that case conference, Nishikawa J. issued directions including a direction that the tenant pay her monthly rent and pay $4,800 toward arrears.
[10] The payment toward arrears was to be made by July 6, 2022, failing which the landlord could move to lift the stay. Although the tenant made some payments, she did not pay the full $4,800 as required by Nishikawa J. The landlord then brought this motion.
[11] Although there is some dispute about the total amount of arrears, there is no dispute about the following things:
(1) the tenant has made some rental payments in the interval;
(2) at least $6,560 is still due in arrears; and,
(3) with respect to her appeal, the tenant has moved forward and completed her materials for her appeal. No date for the appeal has been set as of yet.
[12] On this motion to quash, the landlord must show that the appeal is manifestly devoid of merit. That is a very high threshold. The landlord also moves on the basis that the appeal is an abuse of process as an appeal brought solely to obtain the benefit of the automatic stay of the eviction order.
[13] The landlord’s position is that the tenant is not entitled to live in the rental premises without paying her rent while her appeal is pending and there is certainly a lot to say for that submission.
[14] On the evidentiary record before me, I find that the tenant has made some payments toward her rent but has not fully complied with Nishikawa J.’s order that she pay $4,800 on account of arrears. Having said that, I move back to the issues raised by the landlord in favour of the landlord’s motion.
[15] With respect to the question of whether this appeal is devoid of merit, the landlord submits that it is because no question of law is raised in the appeal. Under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) appeals from the LTB to this court are limited to questions of law.
[16] There are a couple of difficulties with this submission. First, one of the two issues raised by the tenant is a procedural fairness issue. A procedural fairness issue is treated as a question of law for the purposes of the right of appeal under the RTA. The landlord’s submission in that regard is that even if it is a question of law, it is devoid of merit.
[17] The second issue – whether or not there was a settlement – is certainly not a pure question of law. For an appeal to be entertained on that question, the tenant must show that there is an extricable question of law in what is otherwise an issue of mixed fact and law.
[18] Going back to the question of whether this appeal is devoid of merit, it is not for me to say on this motion what the chances of success are. But I am not prepared to find that the appeal meets the very high threshold needed to be quashed in the circumstances before me today.
[19] I move then to the abuse of process submission, based on the failure to promptly pay rent and also to meet the obligation to pay arrears as set out in the directions given at the above case conference.
[20] Unlike some cases we see where an appeal appears to have been brought solely for the purpose of extending the time before the eviction takes place, in this case the tenant has taken steps that suggest that was not the sole purpose of her appeal. Those steps are her partial payment of rent and her steps taken to fully complete her appeal materials. I am therefore not persuaded on the record before me that the appeal was commenced solely for the purpose of delaying the eviction order.
[21] There is another matter I wish to address. I was informed this morning that there is a second application before the LTB that has been brought by the landlord. Specifically, the landlord has brought a new application for an eviction order based on non-payment of rent. That application proceeded to a hearing on Monday of this week and was taken under reserve. Although it is an unusual situation to have these parallel proceedings, I am persuaded by the landlord counsel’s submissions that the two proceedings ought to and should proceed on their own in parallel. I am therefore not going to make my decision based upon the existence of that proceeding, about which I know very little.
[22] I then move to my decision on this motion. I have considered all of the relevant circumstances in the exercise of my discretion. Without limiting my consideration, I note the following as particularly significant. First of all, I have taken into account the weakness in the merit of the appeal, as put forward by the landlord, and the failure to completely fulfill the directions of Nishikawa J. However, I have also taken into account the tenant’s significant steps to pay some of her rent, the tenant’s steps to perfect her appeal, which has been done, her communication to me this morning that she intends, on a going forward basis, to promptly pay her rent every month, and her proposal this morning that in addition to doing so, she will make a payment of $700 per month against her arrears.
[23] Bearing in mind all of the relevant circumstances, I conclude that I will exercise my discretion to give the tenant one last chance to keep matters in adequate standing pending her appeal. I will not, as of today, either quash or appeal or set aside the automatic stay of the eviction order. However, if the tenant fails to comply with the terms ordered today, I am going to permit the landlord to move to set aside the stay as set out below.
[24] I therefore make the following order. The landlord’s motion is dismissed on the following terms:
(1) the tenant shall pay her monthly rent;
(2) the tenant shall also pay $700 per month on account of her arrears of rent;
(3) these payments shall be made in full no later than the first day of each month commencing with the September 1, 2022, payments;
(4) if the tenant fails to comply with the above three terms, the landlord may bring a motion in writing on evidence to this court and, if the evidence establishes non-compliance, the automatic stay of the eviction order shall be set aside.
[25] Costs of this motion shall be reserved to the panel hearing the appeal.
___________________________ matheson J.
Date of Oral Reasons for Judgment: August 10, 2022
Date of Written Release: August 12, 2022
CITATION: Draxl v. Truevine, 2022 ONSC 4646
DIVISIONAL COURT FILE NO.: 318/22 DATE: 20220810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JENNIFER DRAXL
Appellant/Tenant
– and –
TRUEVINE INVESTMENTS LTD.
Respondent/Landlord
ORAL REASONS FOR JUDGMENT
matheson J.
Date of Oral Reasons for Judgment: August 10, 2022
Date of Written Release: August 12, 2022