Court File and Parties

CITATION: De Vos v. Liverance, 2023 ONSC 4068

DIVISIONAL COURT FILE NO.: 236/23

DATE: 20230707

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BENJAMIN DE VOS, ANNA DE VOS and KINGSWOOD PREPARATORY DAY SCHOOL INC., Appellants / Responding Parties

AND:

CHRISTINE LIVERANCE and JACOB ABRAHAMS, Respondents / Moving Parties

BEFORE: D.L. Corbett J.

COUNSEL: Spencer Toole, for the Moving Parties

Responding Parties self-represented

HEARD: July 4, 2023

ENDORSEMENT

D.L. CORBETT J.

[1] The respondents/landlords move to quash this appeal for delay or on the basis that the appeal is doomed to fail and is an abuse of process. For the following reasons, the motion is granted, the appeal is quashed, with costs, and the stay of enforcement of the LTB eviction order is lifted, effective immediately.

Background

[2] The moving parties / landlords own a house, in which they reside, which has a basement apartment, which was rented to the responding parties / tenants.

[3] The moving parties sought an order from the Landlord and Tenant Board terminating the tenancy on the basis that they wish to recover the basement unit for the use of their ailing parent, Doug Liverance.

[4] There are also issues between the parties respecting non-payment and late payment of rent, which are the subject of a separate proceedings before the LTB. The hearing in respect to those issues has not yet been held at the LTB.

Process Below

[5] The moving parties commenced the underlying LTB process by application dated January 5, 2023. In it, they sought an expedited hearing on the basis that the moving party Liverance was pregnant, due to give birth on June 2023, and the moving parties wished to complete the process of moving Ms Liverance’s father into the basement apartment before the birth. The LTB directed an expedited hearing, which was held in March 2023.

[6] By decision dated March 21, 2023, the Board found that the moving parties established that they wished to obtain the unit for use of a family member, granted the application, and terminated the tenancy as of April 15, 2023.

[7] The responding parties sought reconsideration of the LTB decision by request made April 10, 2023. The LTB denied the reconsideration request on April 14, 2023.

Process in this Court

[8] The responding parties then commenced this appeal on April 15, 2023.

[9] The respondents / landlords advised the court that they wished to move to quash the appeal, and a case conference was held before Schabas J. in that respect on May 25, 2023. Justice Schabas directed as follows (among other things) on May 30, 2023:

At a case conference on Thursday May 25, 2023, I directed that the respondent may bring a motion to lift the stay and to quash the appeal. The following steps shall be followed:

The Respondent shall deliver motion materials, including a factum, by June 2, 2023.

The Appellant shall deliver responding materials, including a factum, by June 16, 2023.

The motion shall be heard on a date to be set by the motions coordinator during the week of July 4, 2023.

The Appellant has not paid rent for May, as the cheque was stopped. The monthly rent is $1,593.90. The Appellant shall pay rent for both May and June on June 1, 2023; failure to do so can be addressed, if necessary, at the hearing of the Respondent’s motion.

The motion was heard, as scheduled, on July 4, 2023.

[10] There were three sets of issues on the motion:

a. Whether the tenants paid rent as it fell due since the order of Schabas J.;

b. Whether the tenants had obtained a transcript for the appeal, and if they had not done so, whether they had taken reasonable steps to do so; and

c. Whether the appeal ought to be quashed on the merits.

[11] I decline to make findings about the state of rent arrears – if any – as of the date of the motion. My decision on this motion does not turn on the rent payment issue: if this had been material to the decision on this motion, I would have given directions for (a) establishing the payment history since the direction of Schabas J.; (b) to facilitate electronic transfer of subsequent rent payments; and (c) an expedited process for addressing any future failure to pay rent pending the appeal.

[12] I am not satisfied with the tenants’ explanations respecting their efforts to obtain recordings of LTB proceedings, but again I conclude that the disposition of this motion does not depend upon this finding. If there was potential merit to the appeal, I would have given directions to secure transcripts and to schedule an expedited appeal process – the failure to obtain a transcript – to date – would not be material enough to warrant dismissing the appeal for delay now. I do, however, take this point into account in assessing the merits of the claims of procedural unfairness in the Board’s proceedings: the Board’s findings on the reconsideration decision stand unchallenged by a transcript disclosing problems with the Board’s process, and it was for the tenants to obtain the transcript for use on this motion if they wished this court to take it into account in assessing the motion to quash. The tenant’s evidence on this motion does not, itself, raise material issues of procedural fairness.

[13] On the merits, for the reasons that follow, I am satisfied that there is no question of law upon which this appeal could succeed, and thus that the appeal should be quashed.

The Decision Below

[14] The issue below was focused. The landlords claim to need the basement apartment for their own use – specifically – for the use of Ms Liverance’s father, who is seriously ill. The Board correctly stated the test for terminating a tenancy on this basis at paras. 16 to 18 of the Decision. No argument was advanced on this motion that the Board made a legal error in its statement or application of the law.

[15] At para. 19 of the Decision, the Board found as follows:

I find that the Landlords have a genuine intent to occupy the property for the purpose of residential occupation by their father for at least one year.

[16] This finding by the Board is conclusory, on its face, but it follows the Board’s review of the evidence provided by the parties. That evidence overwhelmingly establishes the basis for the “own use” request: Doug Liverance has been diagnosed with cancer and also has diabetes, and he has treatment pending. He provided the required affidavit attesting to his intent to occupy the premises for at least a year once it becomes vacant. The evidence to the contrary is nothing more than the tenant’s asserting that it would be “better” for Mr Liverance to live within the landlords’ dwelling unit, rather than beneath it, and that they believe the landlords intend to renovate the unit to re-rent it at a higher rent.

[17] There are a many obvious reasons why the landlords – and Doug Liverance – would prefer to be in separate, proximate premises, not the least of which are matters of their own privacy. An “own use” application requires a landlord and intended occupant to demonstrate a sincere intent to occupy the premises – it does not require them to establish that they have no other way in which to achieve their goals, or to defend their personal choices about how best to arrange their domestic arrangements.

[18] Appeals are not a “treasure hunt for error” of tribunal decisions. The Board’s conclusory reasoning in paragraph 19 of the Decision is not an appealable issue in this court, when the reasons are read contextually. It is a finding of fact, clearly available on the record before the Tribunal, and may not be appealed in this court.

[19] The tenants raise questions of procedural fairness in their notice of appeal. Questions of procedural fairness are generally considered to be questions of law and are thus within the jurisdiction of this court. However, the issues raised by the tenants do not ground a claim for relief on appeal in this case. This case was a straightforward issue of fact – had the landlords made out a proper basis for the “own use” application. None of the alleged procedural irregularities would have changed the Board’s finding on the central factual issue before it.

[20] Further, as reflected by the tenants’ arguments in this court, the tenants raised numerous irrelevant issues before the Board, and would not readily follow direction about the matters truly in contention. The Board is entitled to control its own process and to confine the parties to the real issues before the Board. Most of the tenants’ arguments before this court respecting procedural fairness concern the Tribunal’s efforts to confine the tenants to the real issues before the Board, and thus are devoid of merit.

[21] Before the Board and again before this court, the tenants spent excessive time on disputes over the proper rent, alleged Fire Code violations, allegations that the basement apartment is “illegal”, and personal attacks on the landlord. On the appeal they wished to pursue a claim against the landlords for alleged statements made by the landlord to a third party about non-payment of rent by the tenants – statements which are alleged to have interfered with an intended real estate purchase the tenants hoped to make. They wished to pursue a substantial claim against the landlords for enormous damages said to have been caused to them by having to spend time and effort on proceedings at the Board and in this court. Oral argument was marred in this court repeatedly by the tenants’ inability to make concise and focused arguments on the points in issue – at times descending into rambling arguments on issues that were, frankly, bizarre. For example, at one point, Ms De Vos told me that she had “millions of dollars” in receivables, and that she was in the process of selling these at a 50% discount to a factoring company – all of which belied her apparent impecuniosity. Further comments were directed at some strange arrangement Ms De Vos seems to have for obtaining legal services from an American attorney, which are not legal services in Ontario, which have something to do with her “international connections”, all of which seem to be related to a bill of costs loaded by the tenants being an “invoice” from something called the “Universal Human Rights Network” located in Washington, D.C., invoiced to “Kingswood Preparatory Day School Inc.” (said to be Ms De Vos’ business, and the guarantor of her residential lease), addressed to the attention of “Pierre Guy Desvaux de Marigny”, identified as the “Principal” of the school, who was said by Ms De Vos to be living currently in a homeless shelter. The account for services – stated in the narrative to be in connection with the landlord and tenant dispute – is for a gross amount of US $212,524.33, less a “member’s discount of over $50,000, less a payment of $50,000 said to have been made on December 6, 2022. It is not necessary to list all the strange (and irrelevant) features of this narrative: the claim that the tenants have incurred more than a quarter of a million dollars in legal expense (in Canadian funds) in connection with this landlord and tenant dispute is (a) preposterous, and (b) so detached from reality as to cast anything said by the tenants in this matter into serious doubt.

[22] The court – faced with irrelevant (and at times preposterous) arguments – did its best to draw the tenants back to the focused issues before the court on this appeal. Similarly, the Board was entitled to – and indeed required – to insist that parties restrict themselves to the matters in issue before the Board. The LTB, in its reconsideration decision, took the time to listen to the recording of the original Board hearing and addressed each of the material procedural concerns raised by the tenants. The tenants attended the hearing, testified, had an opportunity to cross-examine the landlords, and their arguments were set out succinctly in the Board’s original decision. The Board has an obligation to adopt “the most expeditious” process of determining the issues before it – as noted in para. 7 of the Reconsideration Decision. The tenants had notice, heard the evidence of the landlords, had a chance to cross-examine, and had a chance to present evidence. Their relevant arguments were considered. This was a straightforward factual matter for the Board to decide, and the Board followed a fair and efficient process that was appropriate in the circumstances, as reflected in the record before me on this motion and the Reconsideration decision. The tenants have adduced no evidence before this court on this motion to rais any concerns about procedural fairness.

[23] The Board correctly stated the law. It factual findings are not subject to appeal. The allegations of procedural unfairness would not be a basis to interfere with the Board’s decision and are without foundation on the basis of the record before the court on this motion.

[24] The appeal is quashed and the stay pending appeal is therefore set aside, effective immediately. The tenants / appellants shall pay costs of the appeal (including costs of this motion) fixed at $2,500.00, inclusive, payable within thirty days.

[25] The Board expedited its process because of the real and immediate need that the landlords have to recover the use of their basement apartment for Doug Liverance. In this circumstance, I direct the Sheriff to enforce the eviction order of the Landlord and Tenant Board as soon as is reasonably practicable. Counsel for the landlord shall prepare a draft order reflecting this decision; approval as to form and content is dispensed with.

“D.L. Corbett J.”

Released: July 7, 2023