CITATION: Fisher v. Michel, 2022 ONSC 6558
DIVISIONAL COURT FILE NO.: DC-21-22
DATE: 2022/11/28
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LeMay, Doyle and Leiper JJ.
BETWEEN:
Mark Fisher
Plaintiff (Appellant)
– and –
Monda Michel
Defendant(Respondent)
Self-represented
Tyler Nivins, Counsel for the Respondent on Appeal
HEARD at London (by videoconference): November 25, 2022
Doyle J.
Introduction
Mark Fisher, the tenant, appeals the final eviction order of Landlord and Tenant Board Vice Chair member Egya Sangmuah (Vice Chair) dated November 21, 2021 (Final Order). The Final Order of the Board granted the L2 application brought by the Landlord, the respondent Monda Michel.
The Final Order terminated the rental agreement between the landlord and tenant as of November 30, 2021 on the basis that the landlord required the premises for her own personal use under s. 48 of the Residential Tenancies Act, 2006 S.O. 2006, c. 17. (Act)
In its Final Order, the Board found that the landlord genuinely required the rental unit for her and her husband’s own possession and personal use. Specifically, the landlord testified that due to their ages and medical conditions, they required the use of the bathroom in the rental unit. The Appellant alleges that numerous errors of law and fact were made by the Board, including a failure to consider alleged frauds on the part of the landlord.
For the reasons that follow, the appeal is dismissed. I have concluded that the Board made no reviewable error of law.
Background
The rental unit is a room on the upper floor of the Landlord’s home in Kitchener, Ontario. The tenant has occupied the rental unit since November 2013.
The property is a duplex consisting of a basement dwelling with three self-contained units with their own private entrance, a main floor and a second floor with its own entrance. The main floor and second floor of the duplex have a shared front entrance with a staircase leading to the second-floor laundry facilities, bathroom and three bedrooms.
The tenant’s rental unit is on the second floor and is described as Unit “F.” Unit F had its own lock. It had a bedroom with kitchenette furnished with a fridge, sink, microwave and hotplate.
When the tenant moved into his unit in November 2013, the other two bedrooms on the second floor were rented to other tenants but those tenants are no longer there.
In December 2019, the landlord decided that she wanted to take over the rental unit for her own personal use and occupation.
The landlord was under the impression that the Act did not apply as the rental agreement she had with the tenant described the units as “shared accommodations” that were not subject to the Act. However, the landlord applied to the Board for a legal conclusion as to whether the Act applied to the tenancy.
By an order dated May 15, 2020, Member Nicola Mulima confirmed that the Act did apply because the Act grants the Board authority to look beyond the external appearance of the agreement and look at its substance. The Board concluded that it was not bound by the exclusion clause in the rental agreement that stated that the Act did not apply. Member Mulima found that the Act applied as the occasional use of the second-floor bathroom did not make it “required” within the meaning of s. 5 (i) of the Act.
There was some delay before the next hearing took place. At the next hearing before Member Edu, the Member determined that the unit was incorrectly identified as “top floor 1” in the N12 notice and that Member Mulima had identified the unit in question as Unit F. The landlord’s application was dismissed for failure to comply with the procedural requirement that the unit be properly identified in the application.
The landlord commenced a second L2 application on June 12, 2021.
On June 18, 2021, the landlord served the tenant with a Notice to Terminate at the end of the term for her own use (N12) with a termination date of August 31, 2021.
At the September 22, 2021 hearing, the tenant requested an adjournment as he stated that he only became aware of the hearing the week before as he only checks his mail once a month. Notice had been mailed 23 days before the hearing and was deemed to have been served 5 days after it was mailed pursuant to s. 19(3) of the Act.
The Vice Chair refused the adjournment request as he found that the application was the same as last time it was before the board on June 1, 2020 and that the landlord’s disclosure was “essentially the same”.
The tenant had filed extensive materials at the hearing before the Vice-Chair.
In the Final Order, the Vice Chair made the following findings:
The landlord in good faith requires the rental unit for the purpose of residential occupation;
The test of good faith is a genuine intention to occupy the rental unit and not the reasonableness of the landlord’s choice;
The landlord and her husband are in their late seventies; the landlord has medical conditions and takes medication that requires the frequent use of the upstairs bathroom
The landlord also uses a CPAP machine for sleeping and she wants her own bedroom and the benefit of a second washroom;
The landlord wants to use the tenant’s unit as an office;
In response to the tenant’s submission that the landlord is seeking to terminate the lease to increase the rent, the Vice Chair noted that the other tenants have vacated their units on the second floor and that the units have not been rented out again;
The landlord desires not to share her property with tenants;
In the past 5 years, the tenant seldom sleeps in the unit and comes there to collect his mail from time to time and he does not have a lot of possessions in the unit; and
The tenant was also threatening to the landlord by stating he was going to smear the landlord’s family business on the Web.
At the review of the Final Order pursuant to rule 26.1 of the Board’s Rules of Procedure, the tenant submitted that the Vice Chair made a serious error in finding that the landlord was acting in good faith in saying that she intended to possess the unit. He pointed out that the other two units on the second floor had been vacant for two years and she could use those units for her purposes.
In the Review Order of December 9, 2021, Member Renée Lang found that the tenant was trying to “relitigate this application” and that the heart of the second L2 application was the landlord’s desire to stop sharing her house with tenants and that the Board’s finding was reasonable on the evidence.
The Member found that the tenant had not challenged any evidence of the landlord that she intended to stop being a landlord and that she intended to possess the unit.
Member Lang found there had been no serious error on the issue and confirmed the final order.
Standard of Review
Section 210(1) of the Act provides that an appeal from an order of the Board lies to the Divisional Court only on a question of law.
Errors of law are to be reviewed on a standard of correctness. Law Society of Saskatchewan v. Abrametz 2022 SCC 29 para. 29.
Analysis
In oral argument, the tenant was advised that the hearing had been scheduled for 2.25 hours and that he would have one hour for submissions and a fifteen minute right of reply. The tenant protested this time limit: he had expected to speak for six hours. The panel explained the reasons why this court uses time limits, and that we had reviewed the materials in advance and understood the issues that were to be argued. The panel also advised the tenant that time limits were a normal part of appellate hearings. The tenant made his submissions within the time allotted to him, as did counsel for the landlord.
Mr. Fisher raises several issues on the appeal. They are discussed below followed by my analysis.
That the landlord had not established that in good faith she wished possession of the unit and this was application was grounded in fraud
First, I find that this is an issue of a finding of mixed fact and law and is not a ground of appeal under the Act. In any event, there was no error in law.
I find that the Vice Chair applied the correct legal test of good faith as set out in s. 48 of the Act.
Section 48 of the Act reads:
48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 48 (1); 2017, c. 13, s. 7 (1); 2021, c. 4, Sched. 11, s. 31 (1).
(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 48 (2).
As stated by this court in Feeney v. Noble 1994 10538 (ON SC), [1994] O.J. No. 2049 at page 4, the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal. In Salter v. Belijinac, 2001 40231 (ON SCDC), [2001] O.J. No. 2792, this court simply required that the landlord show that they sincerely intended to occupy the rental unit. The court stated at paras. 26 and 27 that the tribunal is not required to analyse the landlord’s various options.
Here, the tenant submitted that the landlord could use the other two rooms on the second floor. It was part of the tenant’s larger submission that the landlord could have found some other way to use the space besides evicting him. The Board did not have to enter into the issue of the reasonableness of the landlord’s decision, where the good faith of the decision to require possession is established.
Also in Fava v. Harrison 2014 ONSC 3352 at para. 17, this court confirmed that the landlord’s motives in seeking possession of a rental unit are irrelevant and the only issue is whether the landlord has a genuine intention to reside in the property.
The Vice Chair concluded on the evidence that the landlord in good faith was intending to occupy the property. The fact that there were tensions between the parties does not result in a finding of bad faith.
It was unfair to postpone the eviction only until November 30, 2021
Firstly, these are findings of fact and not subject to appeal.
I find that the Vice Chair properly considered s. 83 of the Act which reads:
83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).
- The Vice Chair’s findings were reasonable having regard to the fact that the tenant was not at the unit on a regular basis and that he would have time to find comparable accommodation.
There was a breach of procedural fairness when the Vice Chair failed to grant him an adjournment
The issue of procedural fairness is a question of law. Therefore, a failure to afford a tenant procedural fairness is an error of law that falls within this court’s jurisdiction on an appeal from the Board
In my view, failing to grant Mr. Fisher an adjournment of the September 22nd, 2021hearing did not amount to a breach of procedural fairness, as the evidence and issues before the Board were the same as in the previous hearing that resulted in a dismissal as the landlord had failed to indicate the proper name to the unit.
The tenant had had 23 days’ notice of the hearing. He was properly served and it was not an error for the Board to find that he had received proper notice.
In Abrametz, the Supreme Court held that where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review. As this court is dealing with a statutory appeal, the issue of procedural fairness is a question of law.
In Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at para. 77, the Supreme Court of Canada noted that procedural fairness is “eminently variable, inherently flexible and context specific”. The court confirmed that the issue of whether a proceeding was procedurally fit is to be decided in accordance with the five factors in Baker v. Canada (Minister of Citizenship and Immigration) 1999 699 (SCC) that is: “(1) the nature of the decision being made and the process following in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself’.
Given that there are high stakes for a tenant in these hearings and the hearings must be conducted in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. S. 183 of the Act confirms that although the hearings are to be expeditious (given the high volume of the Board) but all parties must “have an adequate opportunity to know the issues and be heard on the matter”.
Here, the tenant had all evidence that the landlord was relying on at the hearing on September 22, 2021. The landlord’s evidence had been in the hands of tenant for months. The previous application was on June 1, 2020. The tenant was granted an adjournment at the first return of the hearing for the first L2 application on January 21, 2021 to June 18, 2021. The landlord’s disclosure was essentially the same. Secondly, he had been previously prepared to defend this hearing before and so would be prepared to proceed. The tenant was able to submit extensive written evidence and submissions for the hearing. He was represented by the same licensee, Mr. F. Gomez at both L2 applications.
There is no evidence that tenant was denied an opportunity to respond to the application and present his evidence. The Vice-Chair did not treat the parties unevenly but rather considered all the evidence presented by both parties. There is no reasonable basis to conclude that there was any real or perceived bias on the part of the Vice Chair.
Although the tenant asserts he could have called the landlord’s doctor at the hearing, he had not led any evidence of what his doctor would have said and how the doctor’s evidence could refute the landlord’s second L2 application. In addition, the medical evidence by way of a medical note merely confirmed the evidence of the landlord regarding her medical conditions.
The tenant questions the seriousness and extent of the landlord and her husband’s medical issues.
Again, the landlord’s desire to require her property does not have to be reasonable only genuine. The Vice Chair found even if they did not have medical conditions a second washroom was useful when sharing a home with someone or guests or to use the extra room as an office or storage. The reasons were irrelevant. Given that the reasons were irrelevant, the doctor’s testimony would not have changed the outcome of the case,
The Board had the power to determine its own procedures and establish its rules. We conclude that in this case, the tenant was not denied the opportunity to know and address the issues being heard.
Accordingly, I am satisfied that the hearing was procedurally fair.
The landlord advanced inconsistent findings
Member Mulima’s order confirmed that the Board had authority to look beyond the external appearance of the tenancy agreement and found that it was governed by the Act.
As a result of that finding, the landlord commenced her L2 application.
There is no inconsistency here.
The Landlord did not attempt to circumvent the Act but rather sought an advance ruling from the Board on this point.
The landlord did not compensate the tenant for the last month’s deposit
At para. 8 of his decision, the Vice Chair noted that the tenant was paid compensation equal to one month’s rent before the termination date in the notice of termination.
Section 48.1 of the Act reads:
48.1 A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48. 2017, c. 13, s. 8.
Based on the record before me, the tenant’s one month’s deposit was used for the rent payable for the month before the termination notice.
There was no reviewable error in law on this issue either.
Conclusion
Accordingly, I would dismiss the appeal.
The tenant requested that this court grant a stay. This issue is not before this panel and hence it does not have jurisdiction to consider the same.
The landlord is entitled to costs as the successful party. The parties are encouraged to discuss the issue of costs. If they are unable to agree on the issue of costs, the landlord may file her costs submissions not to exceed two single spaced pages exclusive of case law and offers to settle by December 7, 2022. The tenant may file his costs submissions not to exceed two single spaced pages exclusive of case law and offers to settle by December 17, 2022. The submissions must be uploaded to Caselines.
Doyle J.
I agree
LeMay J.
I agree
Leiper J.
Released: November 28, 2022
CITATION: Fisher v. Michel, 2022 ONSC 6558
DIVISIONAL COURT FILE NO.: DC-21-22
DATE: 2022/11/28
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Mark Fisher
Plaintiff (Appellant)
-and-
Monda Michel
Defendant (Respondent)
REASONS FOR JUDGMENT
Lemay J.
Doyle J.
Leiper J.
Released: November 28, 2022