Bailey v. Capreit Limited Partnership, 2022 ONSC 5487

DIVISIONAL COURT FILE NOS.: DC-22-195 and DC-22-196

DATE: 2022-09-27

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Rickey Bailey, Tenant/Appellant

AND:

Capreit Limited Partnership, Landlord/Respondent

BEFORE: Sachs, Wilson and Charney JJ.

COUNSEL: Rickey Bailey, Self-Represented

No one appearing for the Landlord/Respondent, Capreit Limited Partnership

Jason Tam, Counsel for the Landlord and Tenant Board

HEARD: September 20, 2022 by videoconference

ENDORSEMENT

[1] This is an appeal from three decisions of the Landlord and Tenant Board (LTB) relating to Mr. Bailey’s claim for damages and a rent abatement against his landlord, Capreit Limited Partnership.

The Decisions Under Appeal

[2] The first decision under appeal is the decision of the LTB dated January 12, 2022. This case was heard by the LTB by videoconference on November 9, 2021.

[3] In that case the LTB found that Mr. Bailey had established that he was subject to excessive noise in his rental unit from adjacent units on a frequent basis, and that the Landlord breached its obligations under s. 22 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the Act) by not taking adequate measures to stop the disruptive noise coming from adjacent units. Section 22 of the Act provides:

A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

[4] The LTB granted Mr. Bailey the following remedies:

a. Mr. Bailey sought a rent abatement of $384 (25% of his $128 per month rent = $32 X 12 months). This remedy was granted in full.

b. Mr. Bailey also sought $35,000 (the maximum monetary jurisdiction of the LTB pursuant to s. 207 of the Act) for pain and suffering and mental anguish, less the abatement remedy. The LTB granted damages in the amount of $1,200 for pain and suffering and mental anguish, based on a 12 month period at $100 per month, for total damages of $1,584.

[5] Mr. Bailey requested an LTB review of the January 12, 2022 decision pursuant to Rule 26 of the LTB Rules. He argued that the damages awarded were inadequate because the Landlord is a multi-million dollar corporation and the damages awarded were not sufficient to dissuade or prevent the Landlord from repeating this behaviour with other tenants.

[6] On March 4, 2022, the LTB denied Mr. Bailey’s request to review the January 12, 2022 Order, finding that the request did not demonstrate that the LTB made any legal error in arriving at the amount of the damages awarded. This is the second LTB decision that is under appeal in these proceedings.

[7] In its March 4, 2022 decision, the LTB noted that Mr. Bailey was granted the rent abatement requested in his application to the LTB, and “it cannot be said that the hearing Member erred in granting the remedy requested by the Tenant”.

[8] With respect to the tenant’s concern about the damages awarded, the LTB noted that it had jurisdiction under s. 31(1) of the Act to order the Landlord pay “a specified sum to the tenant for… reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result” of the Landlord’s breach of one of its obligations under the Act. The LTB concluded:

The purpose of such an award is intended only to compensate the Tenant, not to punish the Landlord. It therefore cannot be said that the hearing Member seriously erred by failing to award an amount that would dissuade or prevent the Landlord from repeating their behaviour.

[9] On May 10, 2021, Mr. Bailey commenced a second LTB application against his Landlord, which appeared to raise concerns that were identical to those raised in the matter that proceeded before the LTB on November 9, 2021, and sought the same remedies: a 25% rent abatement and general damages.

[10] The Landlord’s motion to dismiss this second application was granted by the LTB on March 16, 2022. This is the third decision that is under appeal in these proceedings.

[11] In its March 16, 2022 decision, the LTB carefully reviewed the content of Mr. Bailey’s previous application and the January 12, 2022 decision granting Mr. Bailey’s application. The LTB reviewed the legal principles applicable to the doctrine of the res judicata, including the principles of issue estoppel and cause of action estoppel. The LTB held:

Having reviewed the Tenant’s two T2 applications, I find that the cause of action in the claims is duplicative. I find that both of the applications claims noise from units 803 and 702, industrial sewing machines and other noise, harassment due to the Landlord issuing Notices of Termination, and wrongful Police calls and Police harassment, over the same period.

[12] To the extent that the Tenant argued that he was making claims for different dates than those stated in his previous application, the LTB found that the dates fell within the same time period that were considered in his previous application, and that they were, in any event, barred by cause of action estoppel because they could have been raised in the prior claim had the tenant exercised due diligence. The LTB concluded, at paras. 18 and 20:

I find that the application should be barred as I find that the cause of action in both claims are the same; the subsequent claim could have been raised in the prior action, the parties are the same; and a final decision was made in the prior action.

The Tenant cannot relitigate old claims made and cannot claim in this application what he could have claimed at the first hearing…if he exercised reasonable diligence. On this basis, the application will be dismissed.

[13] Following a case conference on April 22, 2022, Nishikawa J. ordered that these appeals be heard together. The Landlord indicated that it would not oppose the appeals.

[14] By the time these matters proceeded before the LTB, Mr. Bailey had already vacated the rental unit on July 31, 2021, pursuant to another LTB order dated June 9, 2021, terminating his tenancy. That order is not part of this appeal, although it was subject to another appeal which was heard by the Divisional Court on May 11, 2022 and reported as: Bailey v. Capreit Limited Partnership, 2022 ONSC 3395. In that case the Landlord did not appear and advised the Court that it would not oppose Mr. Bailey’s appeal. The Court ordered a new hearing before a differently constituted panel of the LTB.

Standard of Review

[15] Section 210(1) of the Act limits appeals to the Divisional Court from LTB orders to questions of law alone. This Court does not have jurisdiction to entertain an appeal on a question of fact or of mixed fact and law: Devenne v. Sedun, 2020 ONSC 6141, at para. 26; Morgan v. Domian, 2022 ONSC 4164, at para. 6.

[16] If a question of law is identified, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 36 and 37; O’Shanter Development Company Limited v. Terry Babcooke et. al, 2022 ONSC 5040, at para. 11; Morgan, at para. 7.

[17] The Board is entitled to control its own process and will be accorded deference on procedural matters requiring an exercise of discretion: O’Shanter, at para. 11.

Analysis

[18] The Appellant in this case did not file a factum, but filed Notices of Appeal which he asked be treated as a factum. The Notices of Appeal asked that the matters be remitted back to the LTB “with instruction that the Board determine that the Residential Tenancies Act does not apply”, and that the matter proceed before the LTB as a hearing de novo.

[19] The Appellant argues that the LTB erred by permitting the Landlord to submit “incomplete evidence” and “falsified documents” and by not granting him all the money he was seeking.

[20] Having reviewed the Appellant’s Notices of Appeal and considered his oral submissions, we are unable to identify any legal errors made in any of the three LTB decisions appealed.

[21] The Appellant invited the court to review all of the evidence that had been filed before the LTB. But the LTB’s assessment of evidence and findings of fact are not subject to an appeal. In any event, we note that the Appellant was successful in many of his allegations before the LTB, which found that he had established that he was subject to excessive noise in his rental unit from adjacent units on a frequent basis, and that the Landlord had not taken adequate measures to stop the disruptive noise coming from adjacent units.

[22] The Appellant’s primary complaint appears to be that he was not granted the full $35,000 in general damages that he claimed. But there is no identified error of law in the LTB’s analysis or application of the legal principles relating to the quantum of general damages in a Landlord and Tenant proceeding. The adequacy and quantum of general damages is a question of mixed fact and law (O’Shanter, at para. 28). The LTB considered all of the relevant factors in exercising its discretion to award general damages in this case, and we find no legal errors in the LTB’s analysis that would permit us to remit the matter back to the LTB for reconsideration.

[23] In his oral submissions the Appellant also complained that the LTB member who heard and considered his May 10, 2021 complaint on February 8, 2022 put him on mute and did not allow him to speak. I note that the Member who heard that matter stated in her decision, at para. 23 that the Appellant repeatedly interrupted the proceedings and “demonstrated disruptive behaviour throughout the hearing”.

[24] The Appellant did not file a transcript of the proceedings of February 8, 2022, and there is no way for this Court to assess the validity of his claim in this regard. We note, as indicated above, that the LTB is entitled to control its own process and will be accorded deference on procedural matters requiring an exercise of discretion. The LTB has the power to determine its own procedure and to limit oral argument or to exclude any evidence or argument that is unduly repetitious. It is common in video conference proceedings before both courts and tribunals for parties who are not speaking to be muted so that they cannot interrupt the person whose turn it is to speak. In the absence of a transcript to support his allegation, we are unable to give effect to this aspect of the Appellant’s allegation.

Conclusion

[25] For the foregoing reasons, the appeal is dismissed.

[26] The Landlord did not participate in this appeal and is not entitled to costs, the LTB is not seeking costs, and therefore there will be no order as to cost.

Sachs J.

Wilson J.

Charney J.

Released: September 27, 2022