CITATION: Dean v. McDonald, 2022 ONSC 6183

DIVISIONAL COURT FILE NO.: 276/22

DATE: 20221103

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HOLLY DEAN and GEORGE LASTIWKA, Appellants/Tenants

AND:

MAUREEN MCDONALD, Respondent/Landlord

BEFORE: Matheson, Sutherland and Akbarali JJ.

COUNSEL: Self-represented Appellants

David S. Strashin, for the Respondent

Valerie Crystal, for the Landlord and Tenant Board

HEARD: November 1, 2022, in Toronto (by videoconference)

ENDORSEMENT

[1] The tenants appeal a decision of the Landlord and Tenant Board (“LTB”) dated March 16, 2022, terminating their tenancy, and the related LTB review order dated April 19, 2022. The tenants have also brought a motion to adduce fresh evidence on their appeal.

[2] The landlord applied to terminate the tenancy on the basis that she required the rental unit for the purpose of her own occupation. The first application was dismissed because the landlord had not paid the required one-month compensation. The second application gave rise to the above decisions.

[3] Before the LTB, the tenants focused on a complaint that they made against the landlord about fumes from the commercial tenant below them. They had brought an application to the LTB against the landlord. The tenants alleged that the landlord’s application to terminate their tenancy was brought in bad faith and was retaliatory, and the termination of their tenancy was therefore precluded under s. 83(3) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

[4] In the March decision, the LTB Member found, based on the evidence, that the landlord in good faith required possession of the rental unit for the purpose of residential occupation. The Member did not find bad faith or reprisals. He found that the landlord did not bring the application because the tenants had attempted to enforce their legal rights. The Member granted the landlord’s application but exercised his discretion under s. 83 of the Act to postpone the eviction until May 31, 2022. In the review, the LTB confirmed the decision. The LTB found that the tenants essentially disagreed with the LTB’s findings of fact.

[5] The tenants have a right of appeal on questions of law only, which includes a breach of procedural fairness. There is no right of appeal from findings of fact, or findings of mixed fact and law that do not give rise to an extricable question of law. The standard of review is as set out in Housen v. Nikolaisen, 2022 SCC 33.

[6] The tenants submit that the LTB erred in a number of ways, including with respect to whether the use of back yard was commercial, whether the landlord had seriously breached her responsibilities and whether the landlord’s application was retaliatory (arising from their complaint about fumes from the commercial tenant’s use). The tenants further submit that the LTB erred because the application was precluded by s. 83(3) of the Act and that the hearing was procedurally unfair.

[7] The fresh evidence motion relates to the use of the back yard for commercial purposes. This was a factual finding. The tenants now put forward evidence seeking to show the landlord lied about the back yard at the hearing. The proposed fresh evidence is seven documents all of which predate the LTB hearing and all of which the tenants had before that time. Some of the documents relate to the tenants’ complaints about fumes from the commercial tenants’ painting, the complaints that the tenants submit led to retaliation, rather than the nature of the use of the yard.

[8] We are not persuaded that the proposed fresh evidence meets the test for admission on an appeal, as set out in Palmer v. The Queen, 1979 8 (SCC), [1979] 106 D.L.R. (3d) 212. It was available to the tenants beforehand and several of the documents refer to facts that were put forward by the tenants at the hearing. The proposed fresh evidence does not show that the landlord was lying. It is an attempt to reargue the facts with additional evidence. Further, the factual finding is beyond the scope of the appeal. We conclude that the fresh evidence cannot be adduced on this appeal and dismiss the motion.

[9] The tenants also submit that the LTB erred in failing to consider all the circumstances of the case, another proposed issue that is factual, not an issue of law.

[10] The tenants submit that the Member erred with respect to s. 83(3) of the Act. That subsection requires the LTB to refuse an eviction application in certain circumstances. The tenants rely on ss. 83(3)(a) and (c).

[11] Subsection 83(3)(a) provides that the LTB is required to refuse a landlord’s application where the Landlord “is in serious breach” of the landlord’s responsibilities. The tenants rely on the problems with fumes. The tenants put forward the Municipal Code regarding required ventilation and allege that the LTB erred in saying that the commercial tenant was responsible for the fumes, not the landlord. The tenants had also commenced their own application, but it is not before us. Notably, by the time of the LTB hearing, the commercial tenant had left and there were no longer fumes.

[12] On the question of “serious breach” the tenants also rely on poor conduct by the landlord, submitting that she became very aggressive, said she could do whatever she wanted and made false statements about the yard being for commercial use. The main evidence about poor behaviour was presented in videos. The LTB Member viewed the videos and found that they showed both assertive and passive aggressive behaviour by both the landlord and the tenants. This factual finding cannot be challenged on this appeal.

[13] Moving to s. 83(3)(c), it provides that the LTB is required to refuse a landlord’s application where the reason for the application being brought is that the tenant has attempted to secure or enforce the tenant’s legal rights. The tenants submit that the application was the direct result of their complaints and application to the LTB against the landlord. Although the tenants strongly submit that this is a reprisal case, and again point to the aggressive conduct of the landlord, these submissions are essentially a challenge to the findings of fact of the LTB. There was no error of law. The LTB considered the evidence and found that the landlord in good faith wanted to move back into the rental unit due to the breakdown of her common law relationship. He found that was the reason for the landlord’s application, not retaliation. The Member’s assessment of the evidence and findings that accept the landlord’s motives for the application are not questions of law that can be raised in this appeal.

[14] Having considered the s. 83(3) issues, we do not find an error of law.

[15] Lastly, the tenants submit that the hearing was not fair, suggesting that the Member interrupted them, rushed their lawyer and curtailed their evidence. The LTB is obliged to provide a process that is both fair and efficient. The Member sought to focus the issues and the related evidence. He interrupted to keep the hearing focused on relevant matters. The tenants have not demonstrated that there was procedural unfairness.

[16] In conclusion, the appellants have not shown that the LTB erred in law and the appeal is therefore dismissed. There shall be no order as to costs. The tenants shall have an extension of time until December 5, 2022, to vacate the premises.

Matheson J.

Sutherland J.

Akbarali J.

Date: November 3, 2022