CITATION: 146 Osgoode Street Holdings v. Unknown, 2023 ONSC 2158
COURT FILE NO.: 22/2713
DATE: 2023/04/06
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: 146 Osgoode Street Holdings and Smart Living Properties, Landlord (Respondent)
AND
Rosemary Unknown, Tenant (Appellant)
BEFORE: Justice R. Ryan Bell
COUNSEL: John Dickie, for the Landlord
Josh Hawley, attending as supporter of the Tenant
HEARD: March 31, 2023
ENDORSEMENT
[1] The tenant moves for a stay pending review of the order of R. Smith J., quashing her appeal and lifting the stay of the eviction order of the Landlord and Tenant Board (the “LTB”).[^1] I have carefully reviewed all of the materials provided by both the tenant and the landlord. For the following reasons, I dismiss the tenant’s motion. The landlord may forthwith seek enforcement of the eviction order of the LTB.
Factual Background and Procedural History
[2] The relevant facts and much of the procedural history are set out in the reasons for decision of the motion judge.
[3] In 2021, the landlord filed an application to the LTB seeking to terminate the tenancy to effect major repairs or renovations to the premises. This application was resolved on consent on May 17, 2021: the tenancy was transferred from Unit 8 at 168 Osgoode Street to Unit 1 at 170 Osgoode Street, where the tenant continues to reside. The arrears of rent were transferred to the new tenancy.
[4] The landlord’s application to the LTB stated that the tenant’s rent was $550 per month. The tenant did not dispute the amount before the LTB; however, she did allege before the motion judge and again, on this motion, that her rent was only $500 per month.
[5] The tenant failed to pay rent for May, June, and July of 2021. The landlord served a notice of termination for non-payment of rent and filed an application with the LTB to evict the tenant. The landlord’s application was heard on January 11, 2022. The tenant did not appear. The LTB ordered the tenant to pay arrears of rent of $10,646 by May 26, 2022 or the tenancy would be terminated.
[6] On May 17, 2022, the tenant filed a request to review the LTB’s order, alleging she had not received notice of the January 11, 2022 hearing. On May 22, 2022, the LTB stayed the eviction order and agreed to hold a new hearing on May 4, 2022 to consider the landlord’s application de novo.
[7] At the May 4, 2022 hearing before the LTB, the tenant filed no evidence contesting the amount of the arrears of rent claimed or any evidence to support a possible claim for an abatement. The tenant requested an adjournment of the hearing in order to submit additional evidence. The tenant’s request for an adjournment was denied by the Member. The Member ordered that the tenant pay rental arrears of $12,286 by June 15, 2022, or the tenancy would be terminated.
[8] On June 4, 2022, the tenant filed an appeal to the Divisional Court, resulting in an automatic stay of the LTB’s eviction order. The tenant has made no payments towards the arrears or ongoing rent. As of August 22, 2022, the tenant owed arrears of rent for 28 months of $13,386.
[9] The landlord then moved to quash or dismiss the tenant’s appeal on the grounds that a) the tenant failed to identify any error of law in her appeal, and b) the appeal is an abuse of process. The tenant’s position before the motion judge was that the LTB erred by refusing her request for an adjournment, resulting in an unfair hearing. The tenant also submitted that there was an error in the amount claimed to be owing for arrears (as a result of the landlord using $550 per month instead of $500 per month) and that the LTB Member was biased against her.
The Decision of the Motion Judge
[10] On January 30, 2023, the motion judge quashed the tenant’s appeal because she had not raised a question of law on the appeal. The motion judge ordered that the stay of the LTB’s eviction order be lifted as of February 28, 2023.
[11] The motion judge found that the LTB’s refusal to grant the tenant’s request for an adjournment does not raise a question of law. As the motion judge explained at para. 18 of his reasons, the LTB refused to grant the tenant’s request for an adjournment to present additional evidence of poor maintenance because she had not given the landlord any advance notice as required by the LTB’s Rules of Practice that she would be seeking an abatement of her rent. The tenant failed to comply with her disclosure requirements notwithstanding that the LTB advised her of the notice requirement. The motion judge observed that this was a decision within the LTB’s discretion and did not raise a question of law: Sterling v. Guillane, at paras. 25-35.[^2]
[12] The motion judge also addressed the other arguments made by the tenant on the motion to quash the appeal. The motion judge found there was evidence to support the LTB’s finding of arrears of rent and noted that the tenant’s failure to pay any rent from September 1, 2020 onward was a valid reason for the Board to order the tenant’s eviction: Reasons for Decision, at paras. 20-21.
[13] The motion judge rejected the tenant’s argument that the LTB Member did not consider s. 83 of the Residential Tenancies Act, 2006:[^3] the Member referred to s. 83 in his decision and delayed granting the eviction due to the tenant’s vulnerable situation: Reasons for Decision, at para. 22.
[14] Finally, the motion judge addressed the tenant’s argument that she has been living in deplorable conditions. At para. 23 of his reasons, the motion judge explained that on an appeal, the Divisional Court cannot make findings on matters that were not raised before the LTB, especially on questions of fact or mixed fact and law on which there is no appeal.
The Tenant’s Motion to Review and to Stay the Order of the Motion Judge
[15] On February 27, 2023, the day before the stay of the LTB’s eviction order was to be lifted pursuant to the order of the motion judge, the tenant provided the court with an “Urgent Notice of Motion: Motion to stay the Decision for Eviction and to Obtain an Extension of Time.” The tenant was directed by the court to serve her notice of motion on the landlord.
[16] The tenant seeks to review the order of the motion judge “based on the provision of false and misleading information.” The tenant asserts that the motion judge was “biased and unjust” and that the hearing before him was “totally unfair.”
The Stay Motion
[17] The test on a motion for a stay is:
(i) Is there some merit to the proposed review (an application of the “serious issue to be tried” test in the context of a stay pending appeal or review)?
(ii) Will the moving party suffer irreparable harm if the stay is not granted?
(iii) Does the balance of convenience favour granting the stay?[^4]
[18] I advised the tenant of this test at the case conference when the date for the hearing of her motion was scheduled and again, at the outset of the hearing of the motion.
[19] Under the first branch of the test for a stay, I have concluded there is no merit to the proposed review which seeks to set aside the order of the motion judge. The review is nothing more than an attempt by the tenant to relitigate the same issues she raised before the motion judge.
[20] An appeal of the LTB lies to the Divisional Court but only on a question of law: Residential Tenancies Act, 2006, s. 210(1).[^5] The motion judge correctly determined that the tenant had not raised a question of law on her appeal. The LTB’s refusal to grant the tenant’s request for an adjournment does not raise a question of law.
[21] Contrary to the tenant’s submission, the landlord provided the LTB with evidence that the tenant had failed to pay rent from September 2020 to May 31, 2022. Paragraph 9 of the LTB’s order states that the tenant did not contest the landlord’s calculation of the arrears of rent. There was, therefore, evidence to support the LTB’s finding of arrears of rent. The Member found that the arrears of rent for many months justified terminating the tenancy. The tenant’s disagreement with the Member’s finding does not give rise to a question of law.
[22] The motion judge correctly noted in his reasons at para. 23 that on an appeal, the Divisional Court cannot make findings on matters that were not raised before the LTB.
[23] I address briefly the tenant’s submission that the motion judge did not have her materials at the outset of the motion, that the hearing was procedurally unfair, and that the motion judge was biased against her. The tenant’s materials were not uploaded to CaseLines prior to the hearing. At the hearing, counsel for the landlord assisted the tenant by uploading to CaseLines the materials he had received from the tenant. It is clear that the motion judge took the opportunity to listen to the arguments made by the parties and to consider all of the materials that were before him. He provided the parties with a comprehensive decision, outlining his decision and the reasons for his decision. The presumption of judicial impartiality and that judges will honour their oaths of office has not been displaced. The tenant has not presented any evidence – let alone any cogent evidence – in support of her allegation of bias.
[24] In summary, on the first branch of the test for a stay pending review, the motion judge gave careful consideration to the issue before him, that is, whether the tenant had raised a question of law on her appeal. He concluded that she had not and quashed the appeal for this reason. I see no merit to the tenant’s proposed review of the motion judge’s order.
[25] While my conclusion that there is no merit to the tenant’s review of the motion judge’s order is sufficient to dispose of the motion for a stay, I consider briefly the second and third branches of the test.
[26] On the second branch of the test, the tenant argues that if a stay is not granted and she is evicted, she will suffer irreparable harm. She alleges that for her health and that of another tenant, she must continue living in the unit where she currently resides. She says that she needs to stay in the unit to prevent bedbugs from spreading. She says that she cannot obtain alternate housing using her “identifying information” – by which I understand her to mean her surname – because she is fleeing abuse.
[27] On the materials before me, I am unable to make a finding that the tenant will suffer irreparable harm if a stay is not granted. The fact that a tenant is required to move does not, in every case, constitute irreparable harm. In this case, I have no information as to the tenant’s efforts to secure alternate accommodation. Indeed, it would appear that the tenant has made no such efforts because her position is that she has a “right” to remain in her unit, notwithstanding her non-payment of rent. The tenant also maintains she cannot secure alternate accommodation because she is a woman fleeing abuse. The LTB Member took into account the tenant’s vulnerable situation in delaying the eviction. The motion judge, too, ordered that the stay of the eviction order be lifted on February 28, 2023, one month after the release of his reasons for decision. I note that the tenant filed her motion for a stay with the court, without first serving it on the landlord, on the last possible day – February 27, 2023.
[28] The tenant’s claim for an abatement of rent based on alleged inadequate maintenance will not be lost in the event a stay of the motion judge’s order is not granted and she is evicted from her unit.
[29] On the third branch of the test, the balance of convenience strongly favours the landlord. It is clear that the tenant has no intention of paying any rent to the landlord. She has lived rent-free for approximately 30 months. The statutory stay pending appeal from eviction orders of the LTB is an important protection for tenants to enable them to bring their cases to this court and to preserve their tenancies while they do so. The stay is intended to preserve the ability of this court to do justice to both sides – the tenant and the landlord – at the conclusion of the case: Jayaraj, at para. 23. However, the automatic stay does not exist to give tenants a lengthy period of living rent-free pending appeal: Gent v. IMH Pool III LP, at para. 29.[^6] The landlord continues to be prejudiced by the tenant’s ongoing failure to pay her rent.
Conclusion
[30] The tenant’s motion for a stay pending review of the order of the motion judge by a panel of the Divisional Court is dismissed. The parties may make brief submissions on costs (maximum three pages) within 10 days.
[31] If the tenant intends to pursue a review of the order of the motion judge by a panel of the Divisional Court, she should request a case management conference to establish a timetable for the delivery of materials and the hearing of the review.
Justice R. Ryan Bell
Date: April 6, 2023
CITATION: 146 Osgoode Street Holdings v. Unknown, 2023 ONSC 2158
COURT FILE NO.: 22/2713
DATE: 2023/04/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: 146 Osgoode Street Holdings and Smart Living Properties, Landlord (Respondent)
AND
Rosemary Unknown, Tenant (Appellant)
COUNSEL: John Dickie, for the Landlord
Josh Hawley, attending as supporter of the Tenant
ENDORSEMENT
Justice Ryan Bell
Released: April 6, 2023
[^1]: 2023 ONSC 744.
[^2]: 2021 ONSC 1160.
[^3]: S.O. 2006, c. 17.
[^4]: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 (Div. Ct.), at para. 16.
[^5]: S.O. 2006, c. 17.
[^6]: 2017 ONSC 7230 (Div. Ct.).