CITATION: Schram v. Thompson, 2022 ONSC 4669
DIVISIONAL COURT FILE NO.: 137/22
LANDLORD AND TENANT BOARD
FILE NO.: TSL-08883-19-RV DATE: 20220811
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JAMES SCHRAM
Nan Padmanathan, for the Moving Party
Moving Party (Appellant/Tenant)
– and –
JENNITA THOMPSON Responding Party (Respondent/Landlord)
David S. Strashin, for the Responding Party
Valerie Crystal for the Landlord and Tenant Board
HEARD at Toronto (by videoconference): August 11, 2022
Matheson J. (Orally)
[1] The moving party, Mr. Schram, has brought an appeal under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) challenging a decision of the Landlord and Tenant Board (“LTB”) dated January 27, 2022.
[2] The respondent to both the appeal and this motion is the landlord of the premises, which is a basement apartment. There is some dispute in this matter about Mr. Schram’s current status as a tenant, but he was, throughout the LTB proceedings, described as the tenant and will be so described in these reasons for decision.
[3] The tenant has brought a motion for interim relief pending the hearing of his appeal, which is presently scheduled to be heard on November 30, 2022. There is a schedule for the exchange of materials on that appeal and I have no reason to be concerned that schedule will not be met by the appellant, whose counsel is present today.
[4] There is a lengthy background to this matter, which is briefly and fairly summarized in the first two paragraphs of the factum of the LTB as follows:
Following a hearing that the tenant/moving party Mr. Schram did not attend, the [LTB] granted the landlord’s application for eviction on the ground that the landlord required the unit for occupation by her son. After the eviction order had been enforced, the tenant/moving party requested a review of the order. At a review hearing that the landlord did not attend, the LTB granted the review and dismissed the landlord’s eviction application as abandoned. However, the LTB determined that it could not restore the tenant/moving party to possession because the unit was occupied by the landlord’s son and was no longer vacant. The tenant/moving party’s appeal is from that order.
In this motion, the tenant/moving party alleges, based on new evidence, that the unit was not in fact occupied by the landlord’s son but rather was re-rented to a new tenant, Mr. Charles, who has now been illegally locked out of the unit. Based on the tenant/moving party’s allegation that the unit is once again vacant, the tenant/moving party requests an interim order preventing the landlord from re-renting or re-occupying the unit pending the determination of the appeal.
[5] The original eviction order, which has since been set aside, was enforced in about March 2020. The tenant has since been living in shelters, now for more than two years. On this motion, the tenant puts forward significant evidence from a number of witnesses that, if accepted, shows that the landlord has made false statements in the course of the LTB proceedings to the effect that throughout the relevant time period, her son was occupying the premises.
[6] The evidence put forward by the tenant gives rise to a question of whether the eviction was, as described by the landlord, based on an intention that a family member would occupy the basement apartment. Included is evidence from a Mr. Charles, who occupied the basement apartment for a lengthy period of time as a tenant, and not as a family member.
[7] The evidence also gives rise to a question of whether Mr. Charles, who has since been locked out of the premises, provided care to the landlord’s son who the landlord says is occupying the premises. Mr. Charles says that he did not do so. He also says that the son was not occupying the basement during the lengthy time that he was a tenant. Specifically, Mr. Charles attests that he lived in that apartment from the winter of 2020 until he was kicked out in March 2022, a period of roughly two years.
[8] In response to this motion, the landlord has filed an affidavit in which she says two things about the occupation of the basement apartment after Mr. Schram was evicted. First, she says, and this is not contested, that in her written submissions and declaration submitted to the LTB she said her son was occupying the apartment. I note that the written submissions and declaration were not taken under oath. Second, the landlord says (in the present tense) that her son resides in the basement apartment. She makes no response in her sworn evidence to the extensive evidence of the moving party about her re-renting the apartment for a period of two years to a non-family member and a number of other statements that she was making about the status of the basement apartment in that period of time.
[9] There have been a series of LTB orders in this matter that I will not recount in full detail in this oral decision; however, I do note the following. In March 2020, which is after Mr. Schram was evicted, the LTB made an interim order staying the eviction, prohibiting the landlord from re-renting the premises and prohibiting the landlord from interfering with the belongings of Mr. Schram. Based on the tenant/moving party’s evidence on this motion, the landlord breached those terms.
[10] I then move to the decision under appeal, that is the LTB’s decision dated January 27, 2022. In that decision, the LTB held that it lacked the jurisdiction to give possession of the basement apartment back to Mr. Schram. The LTB made that decision at least in part because of the landlord’s submission that her son was occupying that apartment. The LTB held that it could not make an order for possession because the premises were not vacant.
[11] It was not until after those proceedings that the tenant became aware of the evidence now put forward about Mr. Charles occupying that basement apartment for a period of about two years and about other relevant matters.
[12] After the appeal was commenced in this court, there was a case conference before me on June 2, 2022. At that case conference, the landlord agreed to not re-rent the premises or change the current use by family members. The dispute about the current use was a live dispute as of that time.
[13] I then move to the motion before me today. There is no question that this court has jurisdiction to make interim orders pending the upcoming appeal. There is also no question that the upcoming appeal is moving forward in an orderly way.
[14] The specific relief sought on this motion is an interim order to prohibit the landlord from re-renting or permitting occupancy of the premises pending the appeal. That requested order presumes that the premises is currently vacant, which is disputed.
[15] The LTB has raised a potential issue in regard to the requested order, if made. That potential issue relates to the extent to which an order might have an impact on the LTB’s jurisdiction for any new applications that may be brought in respect of the same premises. I invite counsel for the LTB to raise that again after hearing my order set out below, but provisionally, in my view, the issue does not arise.
[16] I move to the test for the requested interim relief. There is no issue between the parties about that test. In short, I must consider whether or not there is a serious issue to be tried in the appeal. I must consider irreparable harm. I must consider the balance of convenience. I must remember that those are not air-tight compartments. Overall, the question for me is the overall justice of the case.
[17] I begin with whether there is a serious question to be tried. In the appeal, the moving party has raised a number of issues at least some of which are issues of law. This is important because the RTA only provides a right of appeal for questions of law. The two that I will mention are as follows. There is an alleged lack of procedural fairness in accepting the unsworn submissions of the landlord about her son living in the premises. Questions of procedural fairness are treated as questions of law under the RTA.
[18] The appellant also raises the question of whether the LTB erred in saying that it had no jurisdiction to grant possession because the premises were not vacant. That proposition is challenged on the appeal.
[19] There are other grounds of appeal that may or may not be questions of law. However, the responding party accepts that there is at least one question of law and also accepts that the threshold to show a serious question to be tried is not high.
[20] I therefore move along to irreparable harm.
[21] Counsel to the moving party strongly submits that the moving party has already been subject to substantial harm having been left to live without a home for a period of about two years. There is no issue that the moving party has only the income he receives from Ontario Works. His evidence is that he has had to live in the shelter system in the intervening period.
[22] In response, the landlord submits that there would be some available premises for the moving party and that he is not obligated to remain in the shelter system. The landlord further submits that it would be harmful if she was obliged to remove her son from the basement apartment because he is disabled. The landlord’s submissions turn on disputed evidence about whether or not the basement apartment is currently vacant.
[23] On the balance of convenience, all of the same issues are raised with respect to the potential harm to either side of this dispute. The moving party also emphasizes that it appears that the landlord has procured the original order in a deceptive way. Based upon the evidence before me, there is strong support for that position. The moving party also submits that there is no prejudice to the landlord because the basement apartment is currently vacant. Again, that is disputed.
[24] Among the responses of the landlord, the landlord submits that it has already been two years and the moving party has been out of the premises for a long time. Further, the appeal is only a few months away and that it makes more sense to maintain the status quo pending the appeal.
[25] The landlord also submits that there is an alternative remedy available to the tenant at the LTB. This gets into some of the other submissions by counsel for the LTB. The upshot of those submissions is that there is the theoretical possibility that the moving party could request a second review of the decision of the LTB, for which he would need two things: first, he would have to persuade the LTB to do a second review, which they do not ordinarily do, and second, his review request would be late so he would have to persuade the LTB to entertain such a request late. In answer to my questions, counsel to the landlord has indicated that the landlord does not consent to a late second review but would not oppose it either.
[26] There is considerable uncertainty with this course of action. I do not foreclose it to the moving party, who can proceed with it if he wishes to do so. But I do not see it as an adequate alternative course of action that addresses the issues on this motion.
[27] I am highly sympathetic to the moving party’s personal and housing situation, caused by this landlord, especially in view of a compelling record that the landlord has operated in a deceptive way. Having said that, I must make a practical order on a motion where the current occupation of the basement apartment is disputed.
[28] Considering all the submissions, all of the factors, and all the evidence in the exercise of my discretion, I am going to grant an order that is different from the order requested by the moving party.
[29] I find that a number of the issues raised today show that the requested order is a better fit with the orders that may be given on the disposition of the appeal itself, if successful, rather than in an interim order for the next few months. I have no reason to believe the landlord’s account that her son is presently in the basement apartment, but I do not find the requested order appropriate at this stage.
[30] Bearing in mind all of the circumstances, I therefore exercise my discretion to make an order that essentially continues an agreement made in the case conference before me on June 2, 2022. My order is as follows:
(1) until the disposition of the appeal, the landlord shall not re-rent the premises or change the current use of the premises by family members; and,
(2) this appeal shall be expedited to be heard in the week of October 24, 2022.
[31] As agreed between the parties, there shall be no order as to costs of this motion.
___________________________ matheson J.
Date of Oral Reasons for Judgment: August 11, 2022
Date of Written Release: August 16, 2022
CITATION: Schram v. Thompson, 2022 ONSC 4669
DIVISIONAL COURT FILE NO.: 137/22
LANDLORD AND TENANT BOARD
FILE NO.: TSL-08883-19-RV DATE: 20220811
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JAMES SCHRAM
Moving Party (Appellant/Tenant)
– and –
JENNITA THOMPSON Responding Party (Respondent/Landlord)
ORAL REASONS FOR JUDGMENT
MATHESON J.
Date of Oral Reasons for Judgment: August 11, 2022
Date of Written Release: August 16, 2022