CITATION: Capreit v. Veiga, 2022 ONSC 958

DIVISIONAL COURT FILE NO.: 475/21

DATE: 20220222

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CAPREIT LIMITED PARTNERSHIP, Respondent (Moving Party)

AND:

MARGARET VEIGA, Appellant (Respondent on the motion)

BEFORE: Copeland J.

HEARD: February 16, 2022

COUNSEL: Kristin A. Ley, for the Moving Party

Margaret Veiga, self-represented Respondent on the motion

HEARD at Toronto (by videoconference): February 16, 2022

ENDORSEMENT

[1] The respondent Landlord moves to quash the appellant Tenant’s appeal, pursuant to s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Landlord submits that the appeal should be quashed because: (i) it is manifestly devoid of merit; and (ii) it is an abuse of the court’s process. The Tenant resists the motion.

History of the proceedings

[2] The Tenant occupied the apartment located at 815-2100 Sherobee Road, Mississauga, Ontario (the “rental unit”).

[3] The Landlord is the owner of the residential complex in which the rental unit is located.

[4] The Tenant appeals Landlord Tenant Board (“LTB”) Order CEL-98430-21, dated June 14, 2021, to the Divisional Court. There are two orders of the LTB with that file number. One was made February 12, 2021 by LTB Member Mathers. The other was an endorsement made June 14, 2021 by LTB Member Patchett (more details on each of these orders is set out below). The Notice of Appeal was served June 15, 2021.

[5] The Tenant has failed to perfect her appeal since serving her Notice of Appeal and Certificate Respecting Evidence on June 15, 2021.

[6] The history of the underlying proceedings in the LTB is as follows. The Landlord commenced proceedings to terminate the tenancy for non-payment of rent in 2019. On January 28, 2020, the LTB issued Order CEL-90499-19. This order required the Tenant to meet certain conditions, including regarding payment of arrears.

[7] On August 4, 2020, the Tenant filed her own application with the LTB, based on alleged harassment by the Landlord. The L2 form for that application had a section to list “related applications”. In that section, the Tenant listed file number CEL-90499-19 (the file related to the January 28, 2020 order).

[8] The Tenant failed to pay the full arrears in accordance with the January 28, 2020 order. As a result, the Landlord moved to terminate the tenancy, and for an order that the Tenant pay the rent owed. On September 23, 2020, Member Henry of the LTB issued Order CEL-96090-20. That order terminated the tenancy, and made orders for payment of rent arrears.

[9] On or about October 2, 2020, the Tenant filed a motion to set aside the order of Member Henry. The Tenant’s motion was heard December 1, 2020, following which, Member Lang issued Order CEL-96090-20-SA, dated January 29, 2021. In that order, the LTB found that it would not be unfair to set aside the September 23, 2020 eviction order and replace it with an order requiring the Tenant to pay her arrears in installments and pay her rent on time. This order was based on assurances from the Tenant that she would be able to pay her rent and arrears in the near future. At that time, the rent arrears were in the range of $23,000. The January 29, 2021 order provided that if the Tenant failed to make any of the payments of rent and arrears set out in the order, the Landlord could move without notice for an order terminating the tenancy.

[10] The Tenant failed to pay her December 2020 and January 2021 rent by the dates specified in the January 29, 2021 order.

[11] On February 2, 2021, the Landlord filed an ex parte L4 application to terminate the tenancy and evict the Tenant because the Tenant failed to meet a condition for the payment of rent in the LTB’s January 29, 2021 order. As noted above, the January 29, 2021 order expressly permitted the Landlord to proceed without notice to the Tenant.

[12] On February 12, 2021, Member Mathers of the LTB issued Order CEL-98430-21. In that order she identified the arrears owed by the Tenant and ordered the tenancy terminated on February 23, 2021.

[13] The Landlord filed Order CEL-98430-21 with the Court Enforcement Office (Sheriff). The Sheriff posted notice that eviction of the Tenant would take place on June 16, 2021.

[14] Essentially on the eve of the eviction, the Tenant brought a motion before the LTB seeking an extension of time to bring a motion to set aside the February 12, 2021 eviction order. Member Patchett denied the Tenant’s request for an extension of time on June 14, 2021.

[15] Still on the eve of the eviction, on June 15, 2021, the Tenant served the Landlord with a Notice of Appeal and Certificate Respecting Evidence regarding CEL-98430-21. That commenced the appeal before this court.

[16] The parties attended a case conference before Justice Corbett on June 25, 2021. Justice Corbett made an order on that date based on the following endorsement:

(i) Ms. Veiga confirms that she has not paid rent since the onset of the COVID-19 crisis in March 2020. During the teleconference she advised that she was willing and able to pay rent prospectively, but that she is not in a position to make any meaningful payment towards arrears.

(ii) Ms. Veiga also advised that she had offered to make small payments to the landlord during the period of non-payment, but that these payments had been refused.

(iii) Ms. Veiga notes that there has been a state of emergency in Ontario; the Province has urged landlords and the Landlord and Tenant Board to be flexible and to try to reach reasonable agreements for payment terms for overdue rent. She also tells me that she has applications pending before the Board seeking rent abatements because of issues she has with the landlord, and an application to set another set of payment terms.

(iv) I am satisfied that this appeal is an abuse of process. Ms. Veiga has not retained any part of the “small amounts” she had offered to pay the landlord in the past and has been living rent-free for over a year. A tenant’s obligation is to pay rent, every month, as it falls due. A tenant is not entitled to abate her own rent prior to a decision from the Board about her claim for an abatement.

(v) The most recent set of payment terms, estabished [sic] by the Board in December 2020, was breached by Ms. Veiga almost immediately. Ms. Veiga has not raised any basis for an appeal from the order establishing those payment terms, no information that justifies her non-compliance with those payment terms, and she offers no partial payment to secure the position of the landlord pending hearing of her appeal. To leave the stay in place would be unfair to the landlord in all these circumstances.

(vi) I also note that it appears that the tenant’s appeal is way out of time. She advised me that she did not receive notice of the Board’s eviction decision in February until recently, a position that is contested by the landlord. I do not decide the stay issue on the basis of this issue, and it remains open to the landlord to raise this issue as a basis for dismissing the entire appeal.

(vii) Order to go (a) lifting the statutory stay of enforcement of the Board’s eviction order pending appeal; and (b) directing the Sheriff to enforce the Board’s eviction order as soon as reasonably practicable.

(viii) There is no order as to costs respecting this appeal, to date.

(ix) Counsel for the landlord has been directed to prepare a draft order to this effect.

[17] The Landlord prepared a draft order of Justice Corbett and requested consent as to the form and content of the draft order from the Tenant on four occasions between July 6, 2021 and July 29, 2021.

[18] The Tenant responded to the Landlord’s emails but refused to approve the draft order as to form and content.

[19] On July 12, 2021, the Tenant served a motion for leave to appeal the order of Justice Corbett dated June 25, 2021 to the Ontario Court of Appeal.

[20] On July 19, 2021, the Tenant served an amended motion for leave to appeal the order of Justice Corbett, dated June 25, 2021 to the Ontario Court of Appeal.

[21] The Landlord served a notice of appointment to settle Justice Corbett’s order and supporting affidavit on the Tenant and the LTB on August 6, 2021.

[22] On August 10, 2021, the Registrar of the Divisional Court provided, via e-mail, the issued and entered order of Justice Corbett, dated June 25, 2021, and advised that a conference with respect to settling the order was not necessary.

[23] On August 11, 2021, the Landlord served the Tenant with the issued order of Justice Corbett, dated June 25, 2021.

[24] The Landlord brought a motion before the Ontario Court of Appeal seeking direction and a lifting of the stay of the LTB’s eviction order, if it was in fact stayed, as a result of the Tenant serving a notice of motion for leave to appeal at the Ontario Court of Appeal.

[25] The Landlord’s motion was heard by Justice Lauwers of the Ontario Court of Appeal on September 8, 2021. He held that there is no automatic stay until leave to appeal is granted and a notice of appeal served and filed. Justice Lauwers further determined that the order of Justice Corbett dated June 25, 2021 was interlocutory and, as such, the Tenant’s appeal did not lie to Ontario Court of Appeal.

[26] On November 5, 2021, the Tenant served the Landlord with a notice of application for leave to appeal to the Supreme Court of Canada from the order of Justice Lauwers. The Landlord has not been provided a file number or any confirmation that the Tenant’s notice of application has been filed with the Supreme Court of Canada.

[27] On November 15, 2021, the Ontario Court of Appeal dismissed the Tenant’s motion for leave to appeal for delay, as she had failed to perfect her motion for leave to appeal.

[28] In accordance with Justice Corbett’s order dated June 25, 2021 and upon Justice Lauwers’ finding that the Tenant’s motion for leave to appeal at the Ontario Court of Appeal did not automatically stay the LTB eviction order, the Landlord filed the LTB eviction order with the Court Enforcement Office (Sherriff) on September 16, 2021.

[29] The Tenant has not made any payment towards the monthly rent since June 2020, and has an outstanding balance of $45,127.13 ($44,790.53 plus the Sheriff’s fees of $336.60) as of December 31, 2021. This amount includes the return of the last month’s rent deposit.

[30] On December 14, 2021, the Sherriff carried out the eviction of the Tenant from the Rental Unit and provided vacant possession to the Landlord. The Tenant had failed to remove her personal belongings from the rental unit at the time of eviction.

[31] On December 16, 2021, during a case conference, the Tenant requested additional time to remove her belongings from the rental unit. It was agreed that the Tenant would have until 5:00 p.m. on Monday, December 20, 2021 to remove her belongings from the rental unit.

[32] On December 20, 2021, the Tenant requested additional time to remove her belongings from the rental unit. The Landlord agreed and advised the Tenant that she could have until Wednesday, December 22, at 5:00 PM to remove her belongings from the rental unit.

[33] On December 23, 2021, the Tenant requested additional time to remove her belongings from the rental unit. Given the previous extensions, the Landlord denied the Tenant’s request for additional time to remove her belongings from the rental unit. To date, the Tenant’s belongings remain in the Rental Unit.

[34] The Tenant’s application at the LTB filed August 4, 2020 (see para. 7 above) is still active. On January 5, 2021, counsel for the Landlord received the interim order of Member Tancioco, dated January 5, 2022, which denied the Tenant’s request to adjourn her tenant application in order to permit her appeal to the Divisional Court be completed.

[35] Member Tancioco stated: “Because the T2 may have ‘similar or overlapping remedies’ should not bar the hearing of the matter, as the T2 has not yet been heard by the Board. As it has not been heard by the Board there are no findings of facts or determinations by the Board and there can be no ‘joining’ of the T2 for its determination by a higher court.” The Tenant’s application was adjourned to be heard on a date set by the Board.

The Appeal is devoid of merit

[36] An appellate court may quash an appeal where it is manifestly devoid of merit: Leysork Holdings Ltd. v. Munden Acres Ltd. (1976) O.R. (2d) 430, 1976 CarswellOnt 300 (CA) at para. 18; Solomon v. Levy, 2015 ONSC 2556 at para. 34.

[37] The Landlord submits that the central ground of appeal raised by the Tenant – that the LTB erred in not consolidating the Landlord’s application with the Tenant’s application – is devoid of merit because the Tenant never made a request that the two applications be heard together. The The Landlord further submits that the Tenant’s appeal does not raise any question of law. The LTB order of February 12, 2021 deals only with factual issues – when the rent was due, the fact it was not paid, and the quantum of arrears. Finally, with regard to the June 14, 2021 LTB order denying an extension of time to file a review of the February 12, 2021 order, this was a discretionary decision, and the Tenant’s Notice of Appeal does not allege any error of law or error of principle regarding the denial of the extension of time.

[38] The Tenant submits that the LTB erred in law in failing to hear her August 4, 2020 application together with the Landlord’s application. She submits that s. 9.1 of the Statutory Powers Procedure Act (“SPPA”), R.S.O. 1990, c. S.22, allows the LTB to hear related proceedings together.

[39] I find that the Tenant’s appeal is devoid of merit. I further find that it does not raise a question of law, which is required in order to appeal under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. I explain my reasons for this finding below.

[40] The thrust of the Tenant’s appeal is that the LTB erred in not hearing her application together with the Landlord’s application. There are two problems with the Tenant’s proposed ground of appeal that lead me to conclude that it is devoid of merit.

[41] I accept that s. 9.1 of the SPPA gives a tribunal discretion to combine or hear proceedings with similar questions of fact, law, or policy together (if the parties consent), or to hear proceedings with similar questions of fact, law, or policy one immediately after the other even where the parties do not consent.

[42] However, the record before the court on this motion does not support that a request to hear the two applications together was ever made by the Tenant. I asked the Tenant during submissions on the motion where in the record I could find any evidence that she requested that her application be heard together with the Landlord’s application. The only thing in the record she could point to was that in her August 4, 2020 application to the board she listed the file number of the Landlord’s application as a related application. But this is not a request for the applications to be heard together. The Tenant also asserted that in the December 1, 2020 hearing she asked that the applications be heard together. She asserted that a transcript of the hearing would show that. But we are now over 14 months from that hearing date, and the Tenant has not obtained the recordings of the relevant hearings before the LTB, which is her obligation as the appellant in this appeal (I discuss the appellant’s failure to take steps to perfect the appeal below).

[43] There is no merit to an appeal based on an alleged failure of the LTB to hear the two applications together when the record does not support that the Tenant ever asked for the two applications to be heard together.

[44] Further, in the June 14, 2021 LTB order denying the appellant an extension of time to seek a review of the February 12, 2021 LTB order, LTB Member Patchett found that “the Tenant application is not related to the Landlord’s application for arrears as it is a T2 alleging harassment from the Landlord”.

[45] This brings me to the second problem that leads me to find that the appellant’s appeal devoid of merit. It does not raise a question of law.

[46] Section 210 of the Residential Tenancies Act, 2006 provides that appeals from the LTB may be brought “only on a question of law”. A question of law is a question about what the correct legal test is. A question of fact is about what actually took place between the parties. A question of mixed fact and law is a question about whether the facts satisfy the legal tests. Only questions about whether or not the LTB applied the correct legal test can be appealed to this court. Questions about whether the facts determined by the LTB satisfy the applicable legal tests are questions of mixed fact and law, and cannot be appealed: Solomon at paras. 31-33; Lafontaine v. Grant, 2019 ONCA 552 at paras. 6-7; Regan v. Ennis, 2016 ONSC 7143 at para. 23.

[47] The power under s. 9.1 of the SPPA to combine or hear matters together or one after the other is discretionary. Quite apart from the absence of support in the record for the Tenant ever having asked that the two applications be heard together, where the power at issue is discretionary, the appellant would have to raise a ground of appeal asserting some error in principle. The appellant’s Notice of Appeal proceeds as if the combining of the hearing of her application with the Landlord’s application is a matter of right. It is not; it is a matter of discretion. The Notice of Appeal does not raise any error in principle, either with respect to the February 12, 2021 order or the June 14, 2021 order.

[48] Similarly, to the extent the Tenant seeks to appeal the June 14, 2021 LTB order denying her an extension of time to file a review of the February 12, 2021 LTB order, the decision whether or not to grant an extension of time is also discretionary. The Tenant’s Notice of Appeal raises no ground that would rise to the level of an error in principle in how LTB Member exercised his discretion in denying the extension of time. Thus, the appeal does not raise a question of law.

[49] Further, to the extent that the Tenant’s quarrel is really with the February 12, 2021 eviction order, her appeal was brought long out of time.

[50] Section 210 of the Residential Tenancies Act, 2006 requires that an appeal be brought “within 30 days after being given the order”.

[51] The appellant served her Notice of Appeal on June 15, 2021, 123 days after the February 12, 2021 eviction order. This was long out of time to appeal. In light of my findings about the appeal being devoid of merit, and an abuse of process, I see no basis to extend time to appeal from the February 12, 2021 eviction order.

[52] For these reasons, I find that the Tenant’s appeal is devoid of merit.

The Appeal is an abuse of the court’s process

[53] An appeal will be an abuse of the court’s process where it is brought seeking solely to delay: Solomon at para. 34; Regan at paras. 24 and 26.

[54] The Landlord submits that the appeal is an abuse of process. The Tenant owes substantial rent arrears, in the range of $45,000 as of December 31, 2021. The Tenant has paid no rent since mid-2020, and there is no prospect of her paying rent or her rent arrears. Her appeal is devoid of merit. Further, the Tenant has taken no steps to perfect the appeal. There is no evidence that she has even ordered the recordings of the LTB proceedings, the first step in moving forward with perfecting the appeal.

[55] The Tenant reiterates her submissions about the merit of her appeal. She submits that the delay in perfecting her appeal was due to the proceedings she had taken in the Court of Appeal, and which she continues to pursue in the Supreme Court of Canada.

[56] The Tenant filed her appeal on June 15, 2021 – eight months ago. Since that date, she has taken no steps to perfect her appeal as required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see Rule 61.09. She has not even taken the first step of obtaining the recordings of the LTB hearings and having transcripts prepared.

[57] The Tenant submits that she was delayed in perfecting her appeal because of the proceedings she took in the Court of Appeal, and continues to pursue in the Supreme Court of Canada.

[58] I do not accept that this is a reasonable explanation for the delay. Those proceedings relate to Justice Corbett’s interlocutory order of June 25, 2021 lifting the stay pending appeal. They in no way prevented the appellant from moving forward to perfect her appeal in this court.

[59] The Tenant owes approximately $45,000 in rent arrears. She has not paid rent since mid-2020. There is no prospect of her ability to pay rent or rent arrears. When the LTB set terms for the Tenant to pay her rent and rent arrears in December 2020 (set out in the January 29, 2021 LTB order), it was based on her assurance that she could meet the schedule set at that time. However, she almost immediately breached that order in relation to payment of rent and arrears. Although the Tenant still has an application proceeding before the LTB, there is no basis to believe that any relief she might obtain from that application would be anywhere near sufficient to address her rent arrears.

[60] Further, as noted above, to the extent that the substance of the Tenant’s appeal is from the eviction order of February 12, 2021, it was filed long out of time.

[61] I agree with Justice Corbett’s conclusion in his case management order dated June 25, 2021. Based on the record in this motion, in particular the history of proceedings, I find that the appeal is an abuse of the court’s process, brought solely to delay, and to take advantage of the automatic stay of the eviction order pending appeal. Justice Corbett’s order lifted that stay on the LTB order, such that the respondent was able to move forward with the eviction. But the respondent should not be required to further respond to this appeal.

The Tenant’s motion to set aside the order of Justice Corbet dated June 25, 2021 and for an extension of time to perfect the appeal

[62] Ms Veiga filed a motion returnable the same date as the Landlord’s motion to quash seeking to set aside Justice Corbett’s order of June 25, 2021 lifting the stay of the eviction pending appeal, and also sought an extension of time to perfect her appeal.

[63] I did not hear submissions on the motion to set aside Justice Corbett’s order of June 25, 2021. That aspect of her motion is not properly before the court, and the court has no jurisdiction to grant the relief sought.

[64] In a case conference held December 16, 2021, Favreau J. (as she then was) declined to set down the Tenant’s motion to set aside Justice Corbett’s order of June 25, 2021. Her reasons, as set out in the case conference direction, were as follows:

This Court does not have jurisdiction to grant the stay that Ms. Veiga requests given that it is based on proceedings currently pending before the Supreme Court. Only the Court of Appeal and the Supreme Court have jurisdiction. In any event, even if the motion for a stay arose from a request that this Court reconsider Justice Corbett’s order, that order was made over six months ago and is therefore out of time. Finally, I note that the eviction has now taken place and the stay may no longer have any utility.

[65] I agree with Justice Favreau’s assessment. To the extent that Ms Veiga is seeking relief in relation to the Court of Appeal’s finding that Justice Corbett’s June 25, 2021 order was interlocutory, the Court of Appeal or the Supreme Court of Canada have jurisdiction to consider whether to stay Justice Corbett’s order. Although Ms Veiga could have sought a review of Justice Corbett’s June 25, 2021 order before a panel of this court pursuant to s. 21(5) of the Courts of Justice Act, such a review is to a panel, not to a single judge, and must be brought within four days of the order for which review is sought: Rule 61.16(6). Thus, the Tenant is far out of time to seek a review of Justice Corbett’s order in this court, and a single judge of this court has no jurisdiction to grant the relief of setting aside Justice Corbett’s order.

[66] With respect to the Tenant’s motion to extend time to perfect the appeal, I am not satisfied that the justice of the case supports granting the extension of time: Lafontaine.

[67] As I have outlined above, I find that the Tenant’s appeal is devoid of merit, and that it is an abuse of process.

[68] Further, I find that the Tenant has not provided a reasonable explanation for her failure to perfect the appeal. The record does not support that she has even requested the recordings of the LTB proceedings at issue from the LTB. In oral submissions the Tenant said that the pandemic had caused delays in obtaining recordings of LTB proceedings. There is nothing in the record before the court on the motion to support that assertion, and I do not accept it. The recordings which would primarily be relevant to this appeal are from December 2020, February 2021, and June 2021. I do not accept that the Tenant could not have obtained these recordings in a timely way.

[69] The Tenant also submits that her proceedings in the Court of Appeal and the Supreme Court related to Justice Corbett’s order of June 25, 2021 somehow prevented her from perfecting her appeal to this court. I do not accept this submission. The proceedings in the Court of Appeal and the Supreme Court relate to Justice Corbett’s order lifting the stay of the eviction order pending the appeal to this court. Those proceedings have no impact on the Tenant’s ability to perfect the appeal to this court.

[70] The justice of the case does not support granting an extension of time to perfect the appeal.

Conclusion

[71] I am satisfied that the appeal should be quashed. It is devoid of merit, and an abuse of the court’s process.

[72] The respondent’s motion to quash the appeal is granted. The appeal is quashed.

[73] The Tenant’s motion to set aside the order of Justice Corbett of June 25, 2021 is dismissed for want of jurisdiction. The Tenant’s motion to extend time to prefect the appeal is dismissed.

[74] Counsel for the Landlord may file a draft order by email with the Divisional Court Office (to my attention), copied by email to the Tenant and to counsel for the LTB. I make an order dispensing with the requirement that the Tenant approve the draft order as to form and content.

[75] The Tenant shall pay costs to the Landlord in the amount of $5,000 all-inclusive for the motion to quash and the appeal. I find that this is an amount that is fair and proportionate in all of the circumstances. The Landlord’s bill of costs shows a reasonable calculation of partial indemnity costs of approximately $7,700. The Landlord’s request for costs of $5,000 is fair in light of the preparation required for the motion to quash, and is in line with costs orders for motions raising similar issues. The Tenant made the submission that there should be no costs order, because she has been severely financially affected due to the pandemic. However, the Tenant chose to continue with this appeal, despite its lack of merit. The Landlord should not bear the cost of her choice in that respect. No order for costs on the Tenant’s motion.

Copeland J.

Date: February 22, 2022