CITATION: Telan v. Elm Place, 2023 ONSC 6999

DIVISIONAL COURT FILE NO.: 420/23

DATE: 20231213

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Erin-Kate C. Telan Appellant/Tenant

AND:

Elm Place Inc. Respondent/Landlord

BEFORE: Justice O’Brien

COUNSEL: P. Robson, for the Appellant/Tenant

S. Toole, for the Respondent/Landlord

HEARD: November 28, 2023 by videoconference

ENDORSEMENT

Overview

[1] The tenant, Ms. Telan, appeals a decision by the Landlord and Tenant Board dismissing her request to set aside an eviction order and a decision denying her request to review that order. Both decisions were made in June 2023. Her primary submission is that the Board denied her procedural fairness because it did not allow her to fully present her evidence that she had paid the amount required to void the order.

[2] The Board issued the original eviction order for non-payment of rent some 16 months earlier, in February 2022. Ms. Telan challenged the original eviction order, first by seeking review by the Board, then by appeal to this court. Both challenges were unsuccessful. She then brought her unsuccessful motion to set aside the eviction order. As of September 14, 2023, she was evicted from the residential unit.

[3] On the motion to set aside, the Board found that, although Ms. Telan had paid $8,439.78 to the landlord since the February 2022 eviction order was issued, she would have been required to pay over $28,000 as of the date of the motion to void the order.

[4] Ms. Telan filed a request to review the Board’s decision on the motion to set aside. The Board dismissed this request, finding that she had been afforded procedural fairness at the motion, and that the decision to dismiss the motion was correct since she had not paid the amount required to void the eviction order.

[5] Ms. Telan makes the following submissions:

(a) She was not afforded procedural fairness at the motion because she was not permitted to speak and properly present evidence.

(b) The Board erred in referencing the Divisional Court’s dismissal of her appeal.

(c) The Board erred in law when it concluded she had not paid the amount required to void the order.

[6] For the reasons that follow, the appeal is dismissed.

Was Ms. Telan denied procedural fairness at the hearing before the Board?

[7] Ms. Telan submits she was denied procedural fairness because she was not able to fully provide her evidence to the Board at the June 7, 2023 hearing, which led to the Board’s order denying her motion to set aside, dated June 19, 2023. In her submission, because she did not present her evidence, the Board member misunderstood the amounts she had paid to void the order.

[8] In the review order, dated June 26, 2023, the Vice-Chair of the Board wrote that he had listened to the motion hearing recording and was satisfied that Ms. Telan was afforded procedural fairness. The recording confirmed that Ms. Telan spoke with duty counsel before the hearing began and that she exercised her right to introduce evidence and make submissions in support of her motion.

[9] I have reviewed the transcript of the June 7 hearing and agree that Ms. Telan was afforded procedural fairness. The Board Member was directive in his approach to the hearing. The hearing did not proceed with each side calling witnesses and presenting evidence. But the Board is a busy tribunal with significant expertise in landlord and tenant matters. It has the exclusive jurisdiction to determine issues in dispute under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the Act). As set out in Wei v. Liu, 2022 ONSC 3887, at para. 9, the Board has “experience and expertise balancing the need to ensure fair participation by all parties with the need to ensure that the issues are dealt with in a timely and efficient way.” Its procedural choices are entitled to deference.

[10] To that end, the Board member’s choice to direct the hearing by asking both parties their submissions on what amounts had been paid to void the original eviction order is entitled to deference. The Board member asked Ms. Telan three times to confirm how much she had paid since February 10, 2022, the date of the original eviction order. Three times, Ms. Telan confirmed she had paid $8,439.78. One example of the exchange between the Board member and Ms. Telan reads as follows:

Board member: … So, Ms. Telan? You’ve told me you’ve paid how much since the order was issued?

Erin-Kate Telan: Ah, $8,439.78 per the judge’s order.

Board member: Yeah, that’s how much you paid since ah …

Erin-Kate Telan: Yes

Board Member: February 10, 2022?

Erin-Kate Telan: That’s correct, sir. Because of, ah, I have a full-time employment.

[11] I recognize Ms. Telan may have been somewhat confused, but at no point did she assert that she had paid any additional amounts to void the order. To the extent she referenced the “judge’s order”, she appeared to be referencing a case direction of Nishikawa J. from this court. But she did not explain the relevance of her reference nor assert at any time that $8,439.78 was only part of the amount she paid. Instead, she confirmed she had paid $8,439.78 since the February 10 order. The Board member repeatedly asked her to confirm her evidence about the amounts paid since February 10, 2022 and did not deny her procedural fairness.

Did the Board err in referencing the Divisional Court’s dismissal of her appeal?

[12] Ms. Telan submits that the Board erred by asking about the Divisional Court’s findings. In her submission, a motion to set aside an eviction order should be treated as a “stand alone” determination, regardless of the outcome of the appeal.

[13] Subsection 74(11) of the Act permits a tenant to make a motion to set aside an eviction order if, after the order becomes enforceable but before it is executed, the tenant pays an amount calculated according to the subsection. The amount includes arrears of rent and costs ordered by the Board.

[14] Pursuant to s. 210 of the Act, appeals to this court are limited to questions of law.

[15] The Board did not commit an error of law when it considered this court’s dismissal of Ms. Telan’s first appeal. The dismissal of the appeal meant Ms. Telan still owed any unpaid rent up to the time of the appeal. The references to the Divisional Court decision did not preclude Ms. Telan from providing evidence of the amounts she had paid since February 10, 2022. Indeed, the Board member repeatedly asked Ms. Telan how much she had paid since that date and made his decision on that basis. This ground of appeal is dismissed.

Did the Board err in law when it concluded Ms. Telan had not paid the amount required to void the order?

[16] Ms. Telan submits that the Board materially misapprehended the evidence about the amounts she had paid to void the order. In her submission, she had paid the full amount owed by the date of the hearing. In this court, she relied on a ledger she had prepared to demonstrate the payments she had made.

[17] The starting point is that where a tenant appeals an order of the Board on a question of fact or mixed fact and law, the Divisional Court does not have jurisdiction to hear the appeal: Devenne v. Sedun, 2020 ONSC 6141, at para. 26. There are limited circumstances in which findings of fact may give rise to an error of law for the purposes of appeal. These include, for example, if the decision-maker ignored items of evidence that the law required them to consider: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 41; Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337, at para. 28, aff’d 2022 ONCA 446, 25 C.C.L.I. (6th) 1, leave to appeal granted, [2022] S.C.C.A. No. 310. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, at paras. 25, 29; Yatar, at para. 28.

[18] The question of how much Ms. Telan paid to void the order is a question of fact. This court does not have jurisdiction to intervene in that finding. As discussed above, Ms. Telan repeatedly confirmed that she had paid $8,439.78 since February 10, 2022. I have considered whether an error of law could have arisen from the Board ignoring other evidence it ought to have considered, such as Ms. Telan’s ledger of payments. However, the ledger drawn to my attention formed part of Ms. Telan’s motion materials seeking a stay from this court. It does not appear to have been before the Board in the hearing leading to the June 19 order. Ms. Telan also did not direct the Board to any other document calculating payments she had made.

[19] In circumstances where Ms. Telan repeatedly confirmed she had paid $8,439.78 since February 10, 2022, and where she did not draw the Board’s attention to any document or otherwise say she had paid other amounts, there is no error in law in the Board’s conclusion that she had not paid the amount required to void the order.

Additional Issue: Novation

[20] Although not pursued in oral argument, Ms. Telan submitted in her factum that a novation occurred when the landlord accepted rent payments pursuant to her existing tenancy agreement. It does not appear this argument was raised before the Board. In any event, s. 45 of the Act expressly provides that unless a landlord and tenant agree otherwise, “the landlord does not waive a notice of termination, reinstate a tenancy or create a new tenancy” by accepting arrears of rent or rent payments after the Board makes an eviction order. There was no evidence before the Board that the parties had agreed to a novation. This ground of appeal is dismissed.

Disposition

[21] Therefore, the appeal is dismissed.

[22] The material on the stay motion in this court includes the landlord’s own ledger, which shows Ms. Telan to have paid more than the $8,439.78 found by the Board, though less than the full amount required to set aside the order. While I do not find a basis to intervene in the Board’s factual findings on the evidence before it at the time, the subsequent material filed in this court should be considered in the accounting between the parties arising from the termination of the lease. Also, considering this subsequent information, I do not order any costs of the appeal.

O’Brien J

Date: December 13, 2023