Court File and Parties

CITATION: Chisholm v. Kwan, 2022 ONSC 5331

DIVISIONAL COURT FILE NO.: DC-22-00001308-0000

DATE: 2022-09-23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SONIA CHISHOLM, Appellant/Tenant

AND:

FANNY KWAN, Respondent/Landlord

BEFORE: Backhouse, Stewart and Matheson JJ.

COUNSEL: Self-represented Appellant

Douglas Levitt and Spencer Toole, for the Respondent

HEARD: September 21, 2022, in Oshawa (by videoconference)

Endorsement

[1] This is a statutory appeal by the Tenant of a decision of the Landlord and Tenant Board (“LTB”). By order dated April 26, 2022, the LTB granted the Landlord’s application to terminate the tenancy and granted an eviction order due to non-payment of rent.

[2] The LTB found that the Tenant had not paid rent for more than two years. Although the arrears were higher, the LTB limited the amount that the Tenant had to pay to $35,000, the monetary jurisdiction of the LTB. The Landlord waived the excess.

[3] The Tenant had some difficulty uploading her appeal materials and was assisted by court staff. As well, counsel to the Landlord assisted in uploading some of the Tenant’s materials at the hearing before us and the Tenant read in that part of her affidavit that was not uploaded. We therefore had all of the material necessary to hear and deal with this appeal.

[4] By way of brief background, the Tenant began renting the premises in 2014. In 2019, the Tenant offered to purchase the property and the Tenant and Landlord signed an Agreement of Purchase and Sale. Although the parties disagree about the status of that agreement, no transfer of the property has been registered on the Land Registry.

[5] In 2020, the Landlord filed an application to evict the Tenant from the unit for failure to pay rent. The original LTB hearing date was adjourned on terms requiring the payment of rent going forward, which the Tenant failed to pay.

[6] The LTB gave two file numbers for the eviction application, resulting in duplicate files, and later made an order withdrawing the second file. The Tenant submits that she thought the matter was at an end. However, the Tenant later received an email from the LTB giving her notice about the upcoming hearing date. She attended the hearing of the eviction application and put forward evidence and submissions.

[7] At the hearing, the Tenant claimed to have an ownership interest in the property and claimed that her unpaid rent was not due because of that interest. The LTB noted that the it did not have jurisdiction to address an ownership claim or funds paid in relation to an ownership interest. The LTB indicated that the Tenant could pursue those claims in court and had not done so at that time.

[8] The LTB made factual findings regarding the tenancy and the lengthy period of unpaid rent. In its order, it gave the Tenant the opportunity to make payments to avoid the eviction. The LTB also considered whether to grant the Tenant relief from eviction under s. 83 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), concluding that it would not be fair to do so. The Tenant was ordered to vacate by May 7, 2022.

[9] The Tenant appealed the LTB order to the Divisional Court. The right of appeal, under s. 210(1) of the RTA, is on questions of law only. The standard of review is therefore correctness, except that for issues of procedural fairness there is no standard of review.

[10] Because of her appeal, the Tenant had an automatic stay of the eviction. By order dated May 5, 2022, Charney J. required that the Tenant make certain payments, failing which the stay would be lifted. The Tenant has since made the required payments under protest. As part of this hearing, the appellant requests a review of the order of Charney J.

[11] The Tenant has not provided this court with a transcript of the LTB hearing for use in the Tenant’s appeal. She submits that she sought but was denied an extension of time to do so.

[12] We address the grounds of appeal as follows.

[13] The Tenant challenges notice because the (duplicate) file was withdrawn, suggesting that there should have been a new N4 notice. However, the Tenant did get notice of the hearing, attended and participated. Although there may have been some confusion caused by the duplicate file, we do not find a breach of procedural fairness.

[14] The Tenant submits that by a verbal order at the hearing, the Tenant was refused the right to attend the hearing or call witnesses. There is no such order in the decision and the Tenant did attend the hearing. The record does not support a finding that such an order was made.

[15] The Tenant submits there was a “serious error of jurisdiction” because the LTB ignored the evidence she presented, because she did not owe the money, because a prior eviction application had been withdrawn, and because the arrears was added to the Agreement of Purchase and Sale. These and related submissions are challenges to the findings of fact of the LTB, which cannot be raised on this appeal. Further, the LTB found that Tenant acknowledged her original rental agreement and acknowledged that she had not made any payments to the Landlord since August 2019. These findings cannot be challenged on this appeal.

[16] The Tenant submits that she was not in a landlord/tenant relationship as of the time of the LTB hearing and instead her relationship was governed by the Agreement of Purchase of Sale from 2019. Based on the evidence before the LTB, it did not err in law in proceeding with the hearing. As set out by this court in Banks v. Azman, 2019 ONSC 2542, at para. 10, the LTB was entitled to enter upon the inquiry it did and to determine the applicability of the RTA to the parties.

[17] The Tenant also challenges the LTB decision regarding relief from eviction under s. 83 of the RTA. The LTB considered the request under s. 83. The reasons for the decision indicate that the LTB considered all disclosed circumstances, including the impact of COVID-19 and whether the Landlord attempted to negotiate a repayment agreement, and found that it would be unfair to grant relief from eviction. We see no basis to interfere with this exercise of discretion.

[18] The Tenant further submits that the payments ordered by the LTB were unfair, biased and discriminatory because of the impact of the COVID-19 pandemic, among other reasons. We do not find a basis for these claims.

[19] We conclude that there was no procedural unfairness, nor has the Tenant shown that the appeal should be granted as a result of an error of law.

[20] This appeal is therefore dismissed with costs to the Landlord fixed at $2,500 payable within 30 days. The stay of the eviction order is lifted as of today but the Tenant shall have until October 31, 2022, to vacate the premises.

[21] With respect to the Tenant’s request for a review of the decision of Charney J. dated May 5, 2022, we see no reason to set aside or vary that decision.

[22] The Landlord asks for an order from this Court directing the payment of funds out of court to the Landlord without the need to bring a motion. Funds were paid into court by the Tenant under the order of Charney J. The Tenant was required to pay $15,500, as follows: “Given [the Tenant’s] proposed civil action, she may pay this money into court or directly to the Landlord, as she chooses.” The Tenant has since commenced a civil action. It appears that there is a dispute about the payment out in these circumstances. We conclude that the matter is better addressed by seeking a case conference before Charney J., at which time the appropriate process can be determined.

Backhouse J.

Stewart J.

Matheson J.

Date: September 23, 2022