CITATION: Hazlett v. Cantusci et al., 2022 ONSC 745
DIVISIONAL COURT FILE NO.: 21-2657
DATE: 2022/02/02
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Michael Hazlett, Appellant (Responding Party)
AND
Frank Cantusci and Nancy Cantusci, Respondents (Moving parties)
BEFORE: The Honourable Justice C.T. Hackland
COUNSEL: Michael Hazlett, responding party, representing himself
S. David Lyman, for the Landlords (Moving parties)
Valerie Crystal, for the Landlord and Tenant Board
HEARD: December 14, 2021 at Ottawa (by Zoom videoconference)
Reasons for Decision
Hackland J.
Introduction
[1] Mr. and Mrs. Cantusci (collectively, “the landlord”) brings this motion to quash an appeal to the Divisional Court brought by Michael Hazlett (“the tenant”) from an order of the Landlord and Tenant Board (“the Board”) dated August 3, 2021, which dismissed the tenant’s motion to set aside an order terminating his lease and evicting the tenant. In the alternative, the landlord seeks an order that the tenant pay all rent arrears immediately to the landlord, and that he pay all future rent in advance on the first of each month to the landlord, pending the hearing of the appeal, and that in default of any such payments, the appeal be dismissed and the stay lifted.
[2] The landlord argues that the appeal is an abuse of process as the tenant has failed to pay any rent for a period of 18 months (since September 2020), and has brought this appeal as a means of continuing to remain in the rental property, rent free.
The tenancy
[3] In June 2019, the landlord entered into a residential tenancy agreement with the tenant for a one-year term at a rental rate of $1,500 per month plus water charges. The leased property is a detached residence with a large backyard. The backyard abuts on another property also owned by the landlord, which the landlord uses for commercial purposes (furniture upholstery). The landlord’s own residence is situated on a third abutting property.
[4] The tenant paid the rent and reimbursed the water charges for the period of June 2019 through June 2020.
[5] In June 2020, the tenant began parking his truck at the rear of his backyard, to which the landlord objected on the basis it obstructed his access to a building which he uses on his adjoining lot and to a steel storage shed nearby. This parking issue has escalated into an unfortunate dispute which has included confrontations involving each party’s family members, name-calling, threats and several police attendances.
[6] When the parking issue arose in late June 2020, the tenant refused to stop parking in the rear of the backyard and the landlord, or family members, threatened to evict the tenant. Shortly after, the landlord served the tenant with a notice of eviction, specifying an eviction date of September 30, 2020. The landlord relied on the grounds that the landlord’s adult son Gianni wished to take possession of the rental unit for the purpose of his own residential occupation.
[7] The July 2020 rent was paid shortly after receiving the eviction notice and the landlord has credited the tenant with the August 2020 rent as compensation for terminating the tenancy, as required by s. 48 of the Residential Tenancies Act, S.O. 2006, c. 17 (the “RTA”). No rent has been paid since September 2020 to date, a period of 18 months, resulting in accumulated rental arrears of $27,000 plus unpaid water charges.
Tribunal hearing
[8] The tenant and his family currently remain in the rental property. The landlord filed an eviction application under s. 69 of the RTA in October 2020 and a hearing took place before the Board on March 10 and June 17, 2021, in which the tenant actively participated.
[9] The principal issues at the hearing was whether the landlord’s adult son Gianni genuinely intended to move into the rental unit and whether relief from forfeiture should be granted to the tenant pursuant to s. 83(3)(c) of the RTA precluding eviction based on the tenant attempting to secure his rights.
[10] The adjudicator concluded that the landlord’s son’s intention to occupy the rental premises was genuine and made in good faith. He stated (at paras 25-29):
[25] In summary, the tenant has firmly established that the landlord’s application is about more than helping out their son and to being helped out by their son, but the tenant is incorrect in law as to what flows from this when it is also true that the family member genuinely intends on moving into the unit.
[26] (the son’s) evidence is, essentially, uncontroverted.
[27] I find that (the son) has a genuine intention to move into the rental unit and occupy it for at least one year. This is the good faith required.
[28] The case law interprets “requires’ as no more than needs and wants, and I accept that (the son) needs and wants to live in the rental unit.
[29] I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006, and find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.
[11] It is apparent from the adjudicator’s reasons that he appreciated and carefully considered the tenant’s position which was, in essence, that the eviction was not in good faith and was retaliatory for his actions in pursuing his rights under the tenancy agreement in regard to the parking issue and that he and his family were being harassed for asserting their rights.
[12] The adjudicator also observed at para. 11 of his reasons “there is a lot of hostility between the parties. Whether or not the tenant is in arrears of rent is irrelevant to this application, but it may, in part, explain (not excuse) some hostile and aggressive behavior directed towards the tenant”.
[13] The adjudicator concluded that while the parking dispute and subsequent hostility was a factor in the landlord’s termination of the tenancy, he was satisfied of the genuineness of the landlord’s intention to have his son occupy the rental unit. He arrived at this conclusion after hearing from the son and the landlord about their personal situation and the reasons they sought to have the son occupy the property. This was essentially a factual determination based on an assessment of the credibility of the landlord and his son. The tenant tested this evidence in lengthy cross-examination and provided his own evidence on the issue.
[14] The adjudicator relied on this court’s decision in Salter v. Beljinac for the principle that good faith concerned whether the landlord or the qualifying family member genuinely intended on moving into the unit and Fava v. Harrison, 2014 ONSC 3352 (Div. Ct.) which held that the “motives of the landlord in seeking possession of the property are largely irrelevant”.
Appeal to the Divisional Court
[15] The tenant has appealed the ruling of the Board to this court. This appeal results in a stay of the eviction order under Rule 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[16] Pursuant to s. 210(1) of the RTA, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. This court has previously quashed appeals from orders of the Board where the appeal does not raise a question of law: see Solomon v. Levy, 2015 ONSC 2556 (Div.Ct), at paras. 33- 34 and Mahdeih v. Chan, 2019 ONSC 4218 (Div.Ct.), at para. 8.
[17] The landlord submits that the tenant’s appeal cannot succeed and should be quashed because it raises no question of law. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank, 1995, 24 OR (3d) 1 (C.A.). The court in Schmidt did point out that this power is to be exercised sparingly because “it is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal”.
[18] In the present case, I am not persuaded that the tenant’s appeal could not possibly succeed. The tenant advances a number of points about the procedural fairness of the hearing and about the operation of s. 83 of the RTA, which could conceivably be characterized as raising questions of law and which on their face are not clearly frivolous. Accordingly, I decline to quash the appeal on the basis of a failure to raise a question of law.
The appeal is an abuse of process
[19] In his oral argument at this motion, the tenant made it clear that he had no intention of paying the accumulated arrears to the landlord and moreover, he intended to pursue civil proceedings or further proceedings before the Landlord and Tenant Board for substantial damages which, he claims, would exceed any accumulated rental arrears. As noted previously, the tenant has steadfastly refused to pay any rent or water charges since September 2020, a period of 18 months, thereby accumulating arrears in the sum of $27,000 plus accumulated water charges. There is no justification for this position and it is a clear abuse of the stay provision in Rule 63.01(3).
[20] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.
[21] This court has recently held that it is an abuse of process to commence an appeal from an order of the Board in order to take advantage of the automatic stay to avoid paying rent due to the landlord, see Mubarak v. Toronto Community Housing Corporation, 2022 ONSC 382 (Favreau J.), in which the court stated (at para 25):
[25] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye v. Jonker, 2021 ONSC 1199 (Div.Ct) at para. 27.
[22] In all of the circumstances, I have come to the conclusion that the tenant’s non-payment of his rent since September 2020 and his avowed intention to continue to refuse to pay rent is an abuse of the process of this court.
Disposition
[23] I order under Rule 63.01(5) that the tenant’s appeal herein will be quashed and the stay of the eviction order will be set aside effective February 28, 2022. The Court Enforcement Office may act on the eviction order after February 28, 2022. However, I further order that in the event the full rental arrears and outstanding water charges are paid to the landlord on or before February 28, 2022, the tenant’s appeal may be continued and the eviction order shall remain stayed for so long as the monthly rental, including the water charges, are paid by the tenant when due or until further order of the court or of the Landlord and Tenant Board.
[24] The landlord is awarded his costs of this motion in the sum of $1,500 inclusive of HST, which is to be paid by the tenant to the landlord within 30 days of the release of this endorsement.
Date: February 2, 2022
CITATION: Hazlett v. Cantusci et al., 2022 ONSC 745
DIVISIONAL COURT FILE NO.: 21-2657
DATE: 2022/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Michael Hazlett, Appellant (Responding Party)
AND
Frank Cantusci and Nancy Cantusci, Respondents (Moving parties)
COUNSEL: Michael Hazlett, responding party, representing himself
S. David Lyman, for the Landlords (Moving parties)
Valerie Crystal, for the Landlord and Tenant Board
reasons for decision
Justice Charles T. Hackland
Released: February 2, 2022