Holland v. 149732 Ontario Inc., 2023 ONSC 3377

CITATION: Holland v. 149732 Ontario Inc., 2023 ONSC 3377

DIVISIONAL COURT FILE NO.: DC-21-2678

DATE: 2023/06/07

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Ellies R.S.J., Sachs and Gibson JJ.

BETWEEN:

WALTER STEVEN HOLLAND Appellant

– and –

149732 ONTARIO INC. Respondent

Walter Steven Holland, self-represented Appellant

John W. Dickie, for the Respondent

HEARD at Ottawa by videoconference: May 31, 2023

The Court

[1] The Appellant appeals from the decision of Member Stephanie Kepman of the Landlord and Tenant Board (“LTB”) dated November 9, 2021, in which she granted the Respondent’s application under s.68 of the Residential Tenancies Act, 2006 (“the RTA”) to evict the Appellant from Unit 1-676 Borthwick Avenue in Ottawa. The Appellant was a tenant. The Respondent is the landlord of the two-unit residential complex at this address. The principal basis for the application to terminate the Appellant’s tenancy was that he substantially interfered with the reasonable enjoyment of her adjacent apartment by another tenant, H.D.

[2] The hearing at the LTB began on March 23, 2021, and ended on June 8, 2021.

[3] H.D. passed away on or about May 12, 2022. The three-bedroom unit that she occupied was re-rented to another tenant, a couple with three children, effective July 21, 2022.

[4] In its decision under appeal, the LTB found that the Appellant substantially interfered with H.D.’s reasonable enjoyment, ordered that the tenancy be terminated as of November 20, 2021, and declined to grant relief from eviction pursuant to s.83(1) of the RTA.

[5] The Appellant filed a Notice of Appeal to the Divisional Court on November 20, 2021. The effect of this was an automatic stay of the eviction until the appeal is resolved, or the Court orders a lifting of the stay.

[6] The Appellant asks that the Member’s decision be set aside. The Respondent seeks that the appeal be dismissed.

[7] An appeal from an order of the Landlord and Tenant Board may be made to the Divisional Court, but only on a question of law: RTA, s. 210(1)

[8] The Appellant submits that the LTB’s decision was confusing in referring only to the dates of service of the N5 Notices, which did not make it clear to him which N5 notices were at issue. If the procedural fairness of the hearing was affected by this confusion, this is the kind of the error that would entitle us to set aside the order at issue.

[9] The time set out in the LTB Rules of Procedure is that the application will be given to the respondent at least 10 days before the date scheduled for the hearing. There is no provision in the Rules that, in addition to the application, the LTB shall provide any respondent with the notice of termination on which the application is based, since the respondent should already have been served with that notice. There is no requirement on the LTB to deliver the N5 notices to the Appellant. Here, the Appellant was clearly properly served with the notices dated December 11, 2020, and January 10, 2021. Moreover, it is clear that all of the N5 notices came to the Appellant’s attention, as he had them at the March 23, 2021 LTB hearing, well before the hearing fully commenced on April 29, 2021. The Appellant suffered no prejudice in this regard, and cannot realistically have been under any confusion about the issues to which he had to respond. In other words, the procedural fairness of the hearing was not affected.

[10] Because this is a statutory appeal, which is limited to questions of law, the standard of review is one of correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 36-37.

[11] The Appellant has not demonstrated that the LTB made any errors of law in its decision.

[12] The LTB accepted the oral evidence of the complainant. The Appellant may disagree with the findings of fact made by the LTB regarding H.D.’s complaint, but that is not an error of law. It is not within the ambit of this appeal. It is not the proper role of this Court on appeal to retry the hearing.

[13] The death of the complainant tenant affected occurred after the hearings, and after the appeal process had begun. The appeal is not moot because H.D. has died. She was a witness, not a party. Because the tenancy was terminated because of the actions of the Appellant, that fault is not wiped out or cancelled because the victim of the interference has died: Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650, paras. 16 to 18; Morguard Residential v. Peters, 2010 ONSC 2550, at para. 10. Further, the other tenants who have moved into the unit previously occupied by the Appellant are entitled to reasonable efforts by the landlord to see that they are not subjected to substantial interference, just as all residential tenants are: North Avenue Road Corporation v. Travares, 2015 ONSC 6986, at paras. 30 to 37.

[14] For these reasons, the decision of the LTB is affirmed. The appeal is dismissed.

[15] As the successful party, the Respondent is entitled to its costs of this appeal, fixed in the amount of $4,000, all inclusive.

Ellies R.S.J.

Sachs J.

Gibson J.

Released: June 7, 2023