Court File and Parties

CITATION: Hazelview Property Services Inc. v. Doucette, 2022 ONSC 5477

DIVISIONAL COURT FILE NOS.: 083/22, 084/22, 085/22 and 086/22

LTB FILE NOS.: TSL-23785-21, TSL-23787-21, TSL-23788-21 and TSL-23789-21

DATE: 20220929

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HAZELVIEW PROPERTY SERVICES INC., Appellant

AND

CHARLES DOUCETTE, ELIZABETH BLAKE, TSERING DHUNDUP, PATERSON HODGSON AND KATHLEEN EDWARDS, Respondents

BEFORE: Swinton, Lederer and LeMay JJ.

COUNSEL: Douglas H. Levitt and Timothy Duggan, for the Appellant Samuel Mason, for the Respondents Valerie Crystal, for the Landlord and Tenant Board

HEARD at Toronto (by videoconference): September 26, 2022

Endorsement

[1] The appellant landlord brought four appeals arising from a decision of the Landlord and Tenant Board dated January 12, 2022. After hearing submissions on mootness, the Court dismissed the appeals as moot, with reasons to follow. These are the reasons.

[2] On or about April 1, 2020, the respondent tenants stopped paying rent. On July 19, 2021, the landlord gave notice to terminate the tenancies for non-payment of rent pursuant to s. 59(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "Act"). On August 19, 2021, the landlord gave further notices of termination to each of the tenants pursuant to s. 58(1) of the Act, on the ground that the tenants had "persistently failed to pay rent on the date it became due and payable."

[3] The landlord brought two applications before the Board: an L1 application (respecting s. 59) and an L2 application (respecting s. 58). A hearing was scheduled for the L1 applications on November 10, 2021, but it was adjourned. The Board promised to give interim orders respecting payment of rent.

[4] The L2 applications proceeded on December 7, 2021. At the outset of the hearing, the tenants requested that the Board dismiss the L2 applications as an abuse of process or, alternatively, adjourn the hearing so that the L1 and L2 applications could be heard together. The landlord opposed the request to hear the applications together. The Board refused the tenants' adjournment request. Before hearing evidence, the Board ruled that the L2 applications were invalid and dismissed them.

[5] Since that decision, the landlord has proceeded with the L1 applications against the tenants, based on the non-payment of rent. The application concerning Elizabeth Blake has resulted in a Board order dated March 27, 2022 terminating her tenancy and issuing an order of eviction. The landlord has not yet enforced the eviction order.

[6] The other three applications were settled, and consent orders were issued by the Board on May 25, 2022. The orders provide for a payment schedule for the arrears. If the tenants do not comply, the landlord may move without notice pursuant to s. 78 of the Act for relief, including the termination of the tenancies. The tenants agreed, and the consent orders note, that the settlement of their applications and the consent orders are without prejudice to the landlord's appeals as well as the L2 applications.

[7] Courts do not generally hear moot cases (Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342). There is no purpose in doing so when the issues between the parties have been resolved, and there is no live controversy between them. The tenants' agreement that the settlement was without prejudice to the appeals does not bind the Court.

[8] In our view, there is no live controversy between the parties. The Board has terminated one tenancy and issued an eviction order. The consent orders have resulted in ongoing tenancies with respect to the other three units and an obligation to pay arrears. If the obligation to pay arrears is not met, then the landlord has a right to bring further proceedings without notice.

[9] The submissions of the landlord indicated a desire to continue with the L2 applications in order to obtain a possible non-voidable termination order or a prompt payment order. In our view, this would be a re-litigation of the disputes, arising from the same facts, that were resolved by the Board in March and May 2022.

[10] The appeals are moot. Nonetheless, the Court has a discretion to hear a matter that is moot. Factors that may be considered are set out in Borowski. The landlord argued that the Court should proceed, given that both interests were before the Court, and thus there was an adversarial context. The landlord also argued that the appeals raised an issue of public interest.

[11] However, this is a case where judicial economy is an important consideration leading us to the conclusion that we should not exercise our discretion to hear the appeals. The issues between the immediate parties have been resolved. To allow the appeals to continue would require the re-litigation of the issues that have been resolved and would be an abuse of process. Moreover, the issue of the correct interpretation and scope of s. 58(1) of the Act and the availability of relief by way of an L2 application is likely to arise again in other cases and can be addressed in the factual context of those cases.

[12] Accordingly, the appeals are dismissed as moot. Costs not having been requested, there is no order as to costs.

Swinton J.

Lederer J.

LeMay J.

Date of release: September 29, 2022