Duncan Mills Labourers’ Local 183 Co-Op v. Ford

CITATION: Duncan Mills Labourers’ Local 183 Co-Op v. Ford, 2023 ONSC 6532

COURT FILE NO.: 395/23

DATE: 2023/11/20

SUPERIOR COURT OF JUSTICE – ONTARIO

Divisional Court

RE: Duncan Mills Labourers’ Local 183 Co-Op, Landlord/Moving Party

AND:

Clifton Ford, Tenant/Responding Party

BEFORE: H. Sachs J.

COUNSEL: Jody Brown and Amy Chen, counsel for the Moving Party

Responding Party appeared on his own behalf

HEARD at Toronto: November 15, 2023

ENDORSEMENT

[1] This is a motion brought by Duncan Mills Labourers’ Local 183 Co-Op ( the “Co-Op”) to either dismiss Mr. Ford’s appeal from the order made terminating his membership in the Co-Op and ordering him evicted on the basis of delay, quash Mr. Ford’s appeal or lift the stay of the Eviction Order pending appeal.

[2] Mr. Ford appeared on the motion and asked that his mother, Ms. Yost, be allowed to address the court as his advocate. The Co-Op did not oppose the request and thus, both Mr. Ford and his mother were permitted to make submissions on the motion. Mr. Ford filed no material on the motion.

[3] Mr. Ford requested an adjournment of the motion. For reasons given orally this request was denied.

[4] Mr. Ford’s appeal is of three orders of the Landlord and Tenant Board ( the “Board”):

1. An order dated April 27, 2022. This order arises out of the Co-Op’s application to evict Mr. Ford because of its allegations that he had engaged in a number of acts that breached the Co-Op’s bylaws and impaired that safety of another person in the Co-Op. The behaviour alleged included public masturbation and nudity, lighting large flames in the Bar BQ area, carrying a large knife and hammer, threatening the security guards, attempting to stab a security guard with a screwdriver and assaulting other residents by pushing them and throwing beer cans at them. The order was made on consent and in the order Mr. Ford agreed not to engage in any similar behaviour that could give rise to the Co-Op serving another Notice of Termination. The parties agreed that if Mr. Ford violated the order the Co-Op could move on an ex parte basis to evict Mr. Ford. Mr. Ford was represented when he entered into the Consent Order.

2. Eight months later, the Co-Op moved ex parte to evict Mr. Ford, alleging that Mr. Ford had breached the Consent Order and had engaged in behaviour that endangered the safety of other members and staff. This behaviour included throwing matches to the ground in the elevator and throwing punches at people in the lobby and insulting them. On February 14, 2023 the Board granted the order sought, finding that Mr. Ford had breached the Consent Order. It also ordered that Mr. Ford be evicted.

3. Mr. Ford sought to set aside the February 14, 2023 Order. The motion to set aside was heard virtually and included the hearing of oral testimony. On May 8, 2023 the Board refused to grant the motion to set aside.

4. Mr. Ford applied for a reconsideration of the May 8, 2023 decision, which was dismissed by the Board on June 15, 2023.

[5] On June 28, 2023 Mr. Ford filed his Notice of Appeal in which he appealed all four orders. Because 3 of the 4 orders had been made more than 30 days prior to the filing of his Notice of Appeal, on July 19, 2023 O’Brien J. set a timetable for Mr. Ford to bring a motion to extend the time for appealing these 3 orders.

[6] Since that date Mr. Ford has taken no steps to perfect his appeal and no steps to bring a motion to extend in relation to the three orders that were the subject of O’Brien’s J’s endorsement. He also stopped paying his rent when he filed his Notice of Appeal and received a stay of his eviction.

[7] The Co-Op’s grounds for its motion focus on Mr. Ford’s failure to take any steps in relation to his appeal, on his conduct in failing to pay rent (conduct that can have a serious impact on a non-profit housing co-op) and on the fact that Mr. Ford has continued to engage in behaviour that threatens the safety of the other Co-Op members and staff.

[8] This motion was scheduled on an urgent basis following a case conference that was held before Nishikawa J. on October 27, 2023. At that time the Co-Op sought an order lifting the stay on eviction. Nishikawa J. refused the Co-Op’s request and provided for the scheduling of this motion. She also ordered that Mr. Ford keep the peace and be of good behaviour and pay his rental arrears by November 3, 2023.

[9] Mr. Ford has not complied with the November 3rd order. He has not paid the rent due. In oral submissions he claimed that this was because the Co-Op would not let him make the payments. I give no weight to these statements. First, they were not supported by any sworn evidence and second the Co-Op gave sworn evidence that while Mr. Ford has not paid his rent, he has made other payments to the Co-Op.

[10] Since filing his Notice of Appeal the Co-Op filed evidence attesting to the following behaviour on Mr. Ford’s part:

(a) Screaming, cursing and slashing the walls with a knife in the hallway;

(b) Leaving a bag of garbage and a severed fish head on the doorstep of another resident;

(c) Entering into a verbal altercation with a female resident in the Co-Op’s gym;

(d) Repeatedly damaging the Co-Op’s recycling room, including throwing garbage on the ground, emptying his urine catheter on the floor, smashing ceramic cups against the walls, and flinging feces across the room;

(e) Making gun gestures at the security cameras;

(f) Spitting in the hallway and lobby;

(g) Smashing the front entrance accessibility button;

(h) Dumping cat feces and urine and feces into the Co-Op office mailbox;

(i) Smearing his feces around the gym; and

(j) Threatening to kill and masturbate in front of a family on his floor. On July 29, 2023, Mr. Ford yelled at a mother and her three children who were waiting for an elevator on their floor. Mr. Ford yelled a racist epithet at them, spit at them twice, including on the four-year old and then threatened to kill them and masturbate in front of the children. This incident was captured on video.

[11] Mr. filed no evidence on the motion. In his submissions he denied much of the behaviour, alleged that the problems were largely confined to the family on his floor who had it in for him and submitted that the Co-Op made no efforts to accommodate him or the disabilities he has as a result of suffering from a traumatic brain injury.

[12] In addition to the fact that there is no evidence to support Mr. Ford’s position, it is undermined by the fact that the complaints about his behaviour come from a number of residents and staff and that some of these complaints have been supported by video evidence. In terms of the Co-Op’s failure to accommodate him, as the Board noted in its reasons refusing to set aside the Eviction Order, the Co-Op entered into the Consent Order, an order that was designed to give Mr. Ford another chance. The Board waited eight months before moving to evict based on Mr. Ford’s repeated breaches of the Consent Order.

[13] I am prepared to accept that Mr. Ford’s behaviour can be explained by the difficulties he has suffered since experiencing his traumatic brain injury. I also accept that it has been very hard for him to obtain effective treatment for these difficulties. The problem is that it does not flow from these realities that it is then up to the Co-Op to continue to house him when he is refusing to pay rent and, more importantly, is engaging in behaviour which threatens the safety of the other residents and staff.

[14] A Court may dismiss an appeal for delay under Rule 61.3 of the Rules of Civil Procedure after considering the length of the delay, the prejudice to the respondent, the merits of the appeal and the justice of the case.

[15] Mr. Ford’s appeal was filed in June and he has taken no steps to advance that appeal. He has provided no evidence as to the reasons why he has failed to take any steps to advance the appeal. His mother, in oral submissions, stated that she had been unable to find a lawyer to represent her son. She also conceded that there was no reasonable prospect that this situation was likely to change. This is not a satisfactory explanation as to accept it would mean that the Co-Op would have to wait indefinitely for Mr. Ford to pursue his appeal. Having reviewed the Notice of Appeal, the appeal has little chance of success and the prejudice to the Co-Op is significant. Not only has Mr. Ford stopped paying rent, but his actions have undermined the safety of the Co-Op’s other residents.

[16] Mr. Ford’s Notice of Appeal lists ten grounds. Some of his grounds of appeal claim that that the Board failed to assign proper weight to Mr. Ford’s disability when ordering his eviction. These are questions that involve the weighing of evidence. Appeals from Board decisions are confined to questions of law.

[17] The remaining grounds of appeal contain assertions regarding the Co-Op’s internal procedures and the actions of his former legal counsel, who acted for him throughout the Board proceedings. These are issues that involve questions of fact and are not properly before this Court on appeal.

[18] Finally, to the extent that the Notice of appeal alleges human rights abuses on the part of the Co-Op and the Board, these arguments were not properly raised before the Board and thus, are also not properly before this Court. They also involve questions of fact.

[19] Weighing all of these factors the interest of justice weigh in favour of granting the Co-Op’s motion to dismiss Mr. Ford’s appeal for delay.

[20] I am very cognizant of the fact that it will be very difficult for Mr. Ford to find another place to live. However, suspending Mr. Ford’s eviction for any significant length of time involves continuing to endanger the safety of the other Co-Op residents. The balance is a difficult one to strike, but I find that it would be reasonable to delay Mr. Ford’s eviction for another 30 days. This number is longer than the Co-Op requested and much shorter than Mr. Ford would like. However, as far as Mr. Ford is concerned, the Eviction Order in this matter was granted in February and he has known since then that his housing was in jeopardy.

[21] For these reasons, I am granting the Co-Op’s motion to dismiss Mr. Ford’s appeal for delay, and order that the stay of the Eviction Order issued February 14, 2023 be lifted in 30 days from the date of the release of these reasons. In view of Mr. Ford’s circumstances I am awarding the Co-Op $1000.00 all inclusive by way of costs.

H. Sachs J.

Date: November 20, 2023