Canadian Mental Health Association Toronto Branch v. Ngui-Hau Terri-Lynn So

Divisional Court File No.: 434/22 Landlord and Tenant Board File No.: TSL-265154-22 Date: 2022-12-13 Citation: 2022 ONSC 7016

Ontario Superior Court of Justice - Divisional Court

Between: Canadian Mental Health Association Toronto Branch (Applicant/Respondent on Appeal) – and – Ngui-Hau Terri-Lynn So (Respondent/Appellant)

Counsel: Mark A. Glynn and Rita Benjamen, for the Applicant/Respondent Joseph Kary, for the Respondent/Appellant

Heard at Toronto: December 5, 2022

Before: Leiper J.

Reasons for Judgment

[1] The Applicant-Landlord, CMHA-Toronto Branch, is a not-for-profit organization that promotes mental health in the City of Toronto. As part of its mandate, the Landlord assists individuals in need of housing by arranging with private landlords to lease self-contained apartment units that it then subleases to prospective tenants who are clients of the Landlord.

[2] The Respondent/Appellant, Ms. So, is a long-term client of the Landlord. She has occupied rental premises at 308-502 Gilbert Avenue, Toronto, Ontario, M6E 4X5 since April 10, 2013. Following an Application by the Landlord, and several subsequent appearances to address the Landlord’s concerns about problematic behaviour in the rental building, Ms. So signed a consent to terminate her tenancy, leading to the order of Member Sona Anwar-Ali of the Landlord and Tenant Board dated May 11, 2022.

[3] Ms. So applied for a review but was ruled out of time by Member Cho. Ms. So appealed to the Divisional Court.

[4] The Landlord brings this motion to quash Ms. So’s appeal quashed on the basis that she has failed to seek leave to appeal as required by the Courts of Justice Act, s. 133(a). Ms. So responded with a motion, which I heard along with the Landlord’s motion, granting her interim possession of her unit pending her appeal, with conditions suggested at the time of the hearing to respond to the Landlord’s concerns. I granted additional time to the parties to make written submissions on the question of conditions, in the event I permitted the appeal to proceed.

Procedural History

[5] On June 18, 2021, the Landlord served Ms. So with a Notice to End Tenancy based on behaviour which the Landlord alleged impaired the safety of others. The Landlord specified that Ms. So had taped over electrical areas, posing a fire safety risk.

[6] The Landlord applied for a hearing before the LTB under LTB File number TSL-22722-21-HR. On September 28, 2021, the hearing proceeded. Ms. So did not attend that hearing.

[7] On December 22, 2021, LTB Member Marie-France Pelletier issued a conditional order, which provided, among other things, that:

(a) the Landlord was to apply under section 78 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”) for an eviction without notice if the Former Tenant breached any of following terms and engaged in the dangerous activities that led to the issuance of the order:

i. tampering with electrical outlets; or

ii. displaying aggressive behaviour to other tenants.

[8] In or around February 2022, the Landlord alleged that Ms. So acted aggressively toward other tenants, contrary to the LTB conditional order. The Landlord filed an L4 Application in accordance with section 78 of the RTA and the Conditional Order (the “L4 Application”).

[9] On March 15, 2022, Vice Chair Speers reviewed the L4 Application and issued an ex parte order (the “L4 Order”) terminating Ms. So’s tenancy and requiring her to vacate her unit on or before March 26, 2022.

[10] On or about March 25, 2022, Ms. So filed a motion to set aside the L4 Order (the “Motion”).

[11] The motion to set aside the L4 Order was scheduled for May 3, 2022, before Member Anwar-Ali. At the hearing, Ms. So and the Landlord filed a settlement by which the Ms. So’s tenancy was terminated effective July 8, 2022, with the Landlord providing a mobility grant of $500. The Landlord was represented by paralegal Eliza Lowes. Ms. So was assisted by duty counsel at the hearing.

[12] Member Anwar-Ali made an order on May 11, 2022. Member Anwar-Ali stated in the decision that “the Tenant understood the consequence of terminating the tenancy.”

[13] In early June, Ms. So advised the Landlord that she did not wish to leave her unit. The Landlord did not agree because the parties had agreed to a consent termination before the LTB.

[14] Ms. So filed a request to review the decision of Member Anwar-Ali on June 11, 2022. She was out of time by one day. Her request was denied. Further efforts to request an order extending time were refused by Member Cho.

[15] On August 3, 2022, the Sheriff’s Office evicted Ms. So from her unit. Later that same day, Ms. So appealed to the Divisional Court and served the Landlord with her Notice of Appeal. Ms. So did not seek leave to Appeal nor did she seek a stay of the eviction. Ms. So filed affidavit evidence on these motions to the effect that her belonging are in the unit, and she has continued to pay rent on the unit, while living in the shelter system. In response, the Landlord filed correspondence establishing that it did not seek to receive rent, and that it requested that Ms. So remove her belongings from the unit so that it could be re-rented to another client in need.

[16] Ms. So’s grounds for appeal are:

a. Member Anwar-Ali erred in failing to consider or apply section 83 of the Residential Tenancies Act considerations in her decision;

b. Members Anwar-Ali and Cho erred in failing to provide Human Rights Code accommodations to a mentally ill tenant;

c. Member Cho erred in failing to find that the tenant was entitled to rely on representations from the Board concerning time for filing her request to review;

d. The Board’s rule that only one request for an extension of time is contrary to the rules of natural justice or, in the alternative, was applied unjustly;

e. The Board has erred in that the tenant’s case has never been granted a hearing on the merits.

Analysis of the Issues

Should the appeal be quashed?

[18] The Landlord argues that Ms. So is appealing the order made on consent before Member Anwar-Ali which ordered her eviction. Without seeking leave, an appeal is liable to be quashed: Courts of Justice Act, R.S.O. 1990, c. C.4, s. 133(a); Morgan v. Whing, 2009 CarswellOnt 2927 (Div. Ct.) at para. 7; Lou v. Abagi, 2018 ONSC 1587 at para. 30.

[19] Ms. So relies on her material in which she has deposed that she did not give valid consent, in part resulting from her reaction to the stress of the proceedings at which her housing was at stake. Ms. So has filed some material that at minimum puts into play the possibility of her requiring accommodation at the time she gave consent to the order of eviction before Member Anwar-Ali.

[20] At the hearing of this motion, neither party had obtained the tape or the transcript of the proceedings before Member Anwar-Ali. Ms. So has provided affidavit evidence describing her state of mind at the time. While the Landlord has characterized her later attempts to review the eviction decision as “buyer’s remorse” on the current record I cannot rule out the possibility that a court could find that her consent was vitiated by other factors, including her understanding of the consequences, the options, and risks of consenting to an order terminating her tenancy.

[21] Having potentially putting the quality of consent into play, must Ms. So nevertheless seek leave to appeal? There is no direct authority on this point that either party could provide. Counsel for Ms. So asks the court to apply the principles in Lund v. Walker [1931] SCR 587 and in Bell v. Smith, [1968] SCR 664. These cases depended on findings that in both cases, based on the record in each case, that the clients had not consented to the decisions made affecting their legal rights.

[22] The question of whether there was informed consent in this case is in dispute. The resolution of that dispute can more thoroughly and properly be done before the panel to hear the appeal, and with a complete record. In these circumstances, I conclude that the question of leave and the merits, should be addressed together. I conclude that it is premature to quash the appeal for failure to seek leave, but Ms. So should be prepared to demonstrate that leave should be granted at the time of the argument on the merits.

[23] Given my decision to dismiss them motion to quash the appeal from Member Anwar-Ali’s decision, the question of whether relief can be sought for the grounds of appeal that argue procedural fairness related to the subsequent decision of Member Cho can be addressed before the merits panel.

If the appeal is not quashed, should Ms. So’s request for relief pending the appeal be granted?

[24] Ms. So seeks to return to her unit, which has not been re-rented. She submits that this court has authority to make orders pending an appeal from her eviction: See Courts of Justice Act, s. 134(2); Ali v. New Spadina. This power should be exercised in accordance with the broader policy aims of the RTA, including the protection of tenants from unfair loss of housing or rent increases.

[25] Ms. So submits that if this court permits the unit to be re-rented to another tenant, her appeal will be moot. The waiting list for supportive housing such as that which Ms. So enjoyed, currently sits at 5-7 years. She submits that having served a Notice of Appeal, the order of the Landlord and Tenant Board terminating her tenancy has been stayed, even though she has been evicted, according to s. 25(1) of the Statutory Powers Procedure Act.

[26] The Landlord submits that Ms. So is seeking a stay pending appeal and the applicable test for interim injunctive relief to be applied is that found in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. This test has been applied in this court in similar circumstances: See Young v. CRC Self-Help, 2020 ONSC 1874 at para. 44.

[27] The RJR-MacDonald test asks three questions. The first question is whether there is a serious issue to be tried. I find that the issue of the validity of Ms. So’s consent is a serious issue. The uncontradicted evidence of her mental health issues, potential need for accommodation and the gap in the record as to any inquiry about her appreciation of the consequences of her consent lead me to conclude that this is neither a frivolous nor vexatious appeal.

[28] The second question is whether Ms. So suffer irreparable harm if the motion is refused. The answer to this question is yes. Ms. So has had the benefit of CMHA sponsored housing for 8 years. She is able to pay for this housing via ODSP shelter money, and the evidence before me is there is a high demand for such housing, with a waiting list of 5-7 years. Since being evicted in June, Ms. So has had to resort to the city shelter system for housing. If this motion is refused and her unit is re-rented, then her appeal will be moot.

[29] The third and final question under the RJR-MacDonald Inc. test is whether the balance of convenience favours granting the motion for relief. The responding material to the motion has provided some updated concerns of staff about Ms. So’s difficult conduct, as well as second hand reports that the building is calmer without her presence. In response to these concerns, Ms. So has submitted that she is willing to abide by conditions, including not attending at the office, not attending at one of the other buildings in the complex, not attending on the second floor and avoiding contact with a tenant with whom there was previously an issue. The balancing of the quiet enjoyment of fellow tenants as against Ms. So’s desire to preserve her rights to her housing pending her appeal, in my view can be achieved by attaching conditions to the relief sought to mitigate the potential for conflict pending the argument of this appeal.

[30] I received helpful follow-up submissions from counsel in writing with proposed conditions. I have considered those submissions and in the order below, I include conditions which reasonably respond to the concerns on the record while some of the issues raised in the record.

Conclusion

[31] I grant Ms. So’s motion. Her occupancy of the unit at 502 Gilbert Avenue is to be restored no later than 5 p.m. on Thursday December 15, 2022, until her appeal against the Landlord and Tenant Board orders is determined, and pending further order of this court. During this period, her occupancy will be subject to the following conditions:

a. The Tenant shall not tamper with any of the electrical fixtures in the rental unit.

b. After receiving a 24 hours’ notice of entry from the Landlord, the Tenant shall not deny access to the unit or otherwise impede the Landlord’s ability to inspect the unit.

c. The Tenant shall not engage in aggressive behaviour, such as yelling, towards other individuals at the residential complex.

d. The Tenant shall refrain from contact with her fellow tenant Victoria Cabral;

e. The tenant shall not enter into the premises at 502 Gilbert Avenue Toronto, Ontario.

[32] Neither party is seeking costs in this matter. No costs are ordered.

Leiper J.

Released: December 13, 2022