CITATION: Michael v. Koehler, 2023 ONSC 707
DIVISIONAL COURT FILE NO.: DC-22-348
DATE: 20230131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson and Kurz JJ.
B E T W E E N:
Jay Michael
Appellant/Tenant
- and -
Linda M. Koehler
Respondent/Landlord
- and -
Landlord and Tenant Board
Respondent
Counsel:
Self-represented, for the Appellant/Tenant
Emerson H. Wargel, for the Respondent/Landlord
Eli Fellman, Counsel for the Respondent the Landlord and Tenant Board
Heard: by videoconference in Toronto on January 25, 2023
REASONS FOR JUDGMENT
Backhouse J.
Overview
[1] This is a statutory appeal from two of three interrelated orders by the Landlord and Tenant Board (the “Board”). The Board initially granted an application brought by the Respondent/Landlord, Linda M. Koehler (the “Landlord”), to terminate the tenancy of and evict (the “Eviction Order”) the Appellant/Tenant, Jay Michael (the “Tenant”). The Board then granted the Tenant’s motion to set aside the Eviction Order. It entered a new order in full and final settlement of all issues between the parties (the “Settlement Order”). Finally, in a decision dated June 1, 2022, the Board dismissed the Tenant’s request for review of the Settlement Order (the “Review Order”). The Tenant now appeals from the Settlement and Review Orders on the grounds of procedural unfairness. The Tenant seeks multiple orders from this Court but primarily asks the Court to set aside the Review Order and declare the Settlement Order void.[^1]
[2] The Landlord asks the Court to dismiss the appeal on the grounds that it was moot and that the appeal lacked any merit.
Background
[3] The Landlord and Tenant entered into an oral agreement for the Tenant to rent a premises in Toronto.
[4] The Tenant’s motion to set aside the Order terminating the tenancy was heard by Member Joy on April 27, 2022.
[5] At the hearing on April 27, 2022, the Landlord was represented by a paralegal. The Tenant met with Duty Counsel at the start of the hearing. The Duty Counsel then took their leave. The Tenant, Landlord and Landlord’s representative met in a breakout room to discuss a resolution. When the hearing resumed, the parties proposed a consent order for final settlement with the following terms:
• The tenancy would terminate July 31, 2022;
• The Landlord would have vacant possession by August 1, 2022;
• The Tenant would pay $300 on May 1, June 1, and July 1, 2022; and
• Each party would withdraw their outstanding T2 and L1 applications.
[6] The Member then asked what would happen if the Tenant breached the order by failing to pay rent for May, June or July. He raised the option of including a term where the Landlord could bring an application for eviction, without notice, under s. 78 of the Residential Tenancies Act, 2006[^2] (the “RTA”) (the “S.78 Term”). He explained how the term would come into effect and canvassed the parties on their views. The date for the payments was changed to the 3rd of each month to afford the Tenant more flexibility in making the rental payments due to their reliance on public assistance. The Member then made an endorsement at the hearing that set out the terms of full and final settlement discussed, with the modified payment dates and the addition of the S.78 Term.
[7] Before the hearing concluded, the Landlord’s representative asked that it be noted that the agreement was on consent. The transcript does not indicate that the Tenant consented to the S.78 Term. The Settlement Order indicates that the parties agreed to a full and final settlement of all issues arising from the tenancy. It does not state that it is a consent order.
[8] The S.78 Term is reflected in para. 6 of the Settlement Order. Paragraph 6 provides:
- In the event the Tenant fails to make the above said payments in paragraph 5, in full and on time, the Landlord shall be entitled to apply to the Board, no later than 30 days after a breach of this Order, without notice to the Tenant, for an Order terminating the tenancy and evicting the Tenant earlier than July 31, 2022 as set out above, and for any arrears that become due after the date of this order, pursuant to Section 78 of the Residential Tenancies Act, 2006.
[9] The Tenant sought a review of the May 4, 2022 Settlement Order. Member Cho of the Board reviewed the May 4 Order, and the transcripts of the April 27, 2022 hearing, and described his findings in the June 1, 2022 Review Order. Member Cho specifically found that:
• He was not satisfied that there was a serious error in the May 4 Order or in the proceedings
• The May 4 Order was not a consent order, and that the presiding adjudicator issued Paragraph 6 after hearing the parties’ submissions on the issue;
• Member Joy explained section 78 of the RTA to the parties, and provided the parties with an adequate opportunity to make submissions about the application of section 78; and
• The exercise of Member Joy’s discretion was based on the parties’ submissions, and the decision to impose a conditional order requiring timely rental payments is entitled to deference.
[10] The Tenant brought this appeal of both the May 4, 2022 Settlement Order and the June 1, 2022 Review Order on June 24, 2022. The Tenant paid $299 in rent for May, $301 for June and $250 for July 2022.
Issues
[11] Is the appeal moot?
[12] Did the Board err in law in respect of the Settlement and Review Orders?
Court’s Jurisdiction
[13] This Court has jurisdiction pursuant to s. 210(1) of the RTA, but only on questions of law.
Standard of Review
[14] Appellate standards of review apply. This appeal is statutorily restricted to questions of law, which are reviewable on a correctness standard.
Positions of the Parties
[15] The Tenant requests that the Order be set aside based on the inclusion of the S.78 Term into Member Joy’s Order to which they did not agree. The Tenant further submits that the Settlement Order was procedurally flawed because they did not have an opportunity to seek further legal advice from Duty Counsel before the S.78 term was added.
[16] The Tenant submits that Justice Corbett erred in his Case Management Direction lifting the stay of execution made on November 24, 2022. The stay having been lifted, the Sheriff evicted the Tenant as of January 11, 2023. The Tenant submitted that Justice Corbett erroneously believed that the rent was not being paid.
[17] The Tenant also made submissions regarding information which they considered erroneous in an affidavit of Linda Koehler sworn August 2, 2022. This affidavit was filed in support of the Landlord’s motion to quash the appeal which was never scheduled. The Landlord was not relying upon it on the appeal.
[18] The Landlord submits that the appeal is moot. The sole issue for the appeal was the addition of the S.78 Term to Member Joy’s Order which provides that if the Tenant fails to pay rent for May, June or July 2022 in accordance with the Settlement Order, that the Landlord can commence eviction proceedings without notice. No application was made by the Landlord in reliance upon the impugned term and it is now spent.
Analysis
[19] The doctrine of mootness provides that absent issues that engage the public interest, the court should not decide an issue that is no longer live between the parties: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.
[20] Given that the sole issue on the appeal is the S.78 Term of Member Joy’s May 4, 2022 Order, that the months of May, June and July, 2022 have gone by and no application was made by the Landlord in reliance upon the impugned term, I find that the Appeal is moot. I turn now to whether there are special circumstances that warrant the Court exercising its discretion to hear the appeal.
Should the Court Exercise its Discretion to Hear the Appeal?
[21] In considering whether to exercise discretion to hear a matter, the Court must consider whether there are “special circumstances” that warrant the Court’s discretion to expend “scarce judicial resources” and hear a matter. These “special circumstances” require the Court to consider whether:
a. “the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the matter”;
b. the dispute is of a recurring nature and is of a brief enough duration that “the dispute will have always disappeared before it is ultimately resolved”; and
c. the case raises an issue of sufficient “public importance” that “a resolution is in the public interest despite the cost of judicial involvement.[^3]
[22] None of these factors are present in this appeal. Accordingly, the appeal is dismissed on the basis that it is moot and there are no special circumstances to warrant hearing the matter.
Consideration of this Appeal on its Merits
[23] Had I exercised the Court’s discretion to hear this matter, I nevertheless would have dismissed the appeal. The Tenant acknowledged that they agreed to the termination of the tenancy with the Tenant to vacate by July 31, 2022 and to pay $300/month for May, June and July 2022. After the expiry of the three months, the Landlord was entitled to evict, without relying on the S.78 Term being included in the Order. The S.78 term having been spent, there is no prejudice to the Tenant as a result of it having been included in the Settlement Order. I would not set aside the balance of the Settlement Order to which the Tenant consented, even if I was of the view that the S.78 Term should not have been included in the Order.
[24] In any event, subsection 204(1) of the RTA gives the Board the discretion to include in an Order, whatever conditions it considers fair in the circumstances. The exercise of a discretionary power of the Board is not a question of law, absent some error of legal principle.[^4] The Tenant has not raised an error in legal principle concerning the exercise of the Board’s discretion under subsection 204(1) of the RTA, other than erroneously claiming that their consent was necessary for the Board to impose the S.78 Term. The Tenant’s appeal amounts to a challenge of the Board’s discretion to impose a condition, which is outside this Court’s jurisdiction which is restricted to errors of law.
[25] The Tenant’s argument that the Settlement Order was not procedurally fair because they did not have an opportunity to seek further advice from Duty Counsel before the S.78 Term was added is devoid of merit. A review of the transcript indicates that the Tenant never requested an opportunity to seek further advice from Duty Counsel.
[26] While not properly part of the issues on this appeal, for the sake of completion, there is no merit to the Tenant’s submission regarding Justice Corbett having erred when directing that the stay of eviction pending appeal be lifted. It is clear from Justice Corbett’s endorsement that the stay was lifted not in regard to arrears of rent, but because the Tenant had not perfected their appeal pursuant to the Court’s direction that the schedule was to be expedited, delays would not be permitted and the Tenant’s excuses for not perfecting the appeal had “lost any air of reality”.
[27] The automatic stay, if it had continued to exist, would also have ended as a result of the dismissal of the appeal herein.
Conclusion
[28] The appeal is dismissed. The Landlord sought costs in the Factum but in accordance with the Court’s practice not to order costs where no Cost Outline has been filed, no costs are awarded.
Backhouse J.
I agree _______________________________
Matheson J.
I agree _______________________________
Kurz J.
Released: January 31, 2023
CITATION: Michael v. Koehler, 2023 ONSC 707
DIVISIONAL COURT FILE NO.: DC-22-348
DATE: 20230131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson and Kurz JJ.
B E T W E E N:
Jay Michael
Appellant/Tenant
- and -
Linda M. Koehler
Respondent/Landlord
- and -
Landlord and Tenant Board
Respondent
REASONS FOR JUDGMENT
Backhouse J.
Released: January 31, 2023
[^1]: The Tenant’s request for relief is somewhat unclear. In the notice of appeal, they ask the Court to set aside the Review Order and declare the Settlement Order void. They also ask for an order allowing them to resurrect their T2 application and to enforce their oral rental agreement. In their factum on the appeal, they appear to be asking for a stay of the Settlement Order until resolution of their application before the Human Rights Tribunal. In the alternative, the Tenant asks the Court to overturn the order for arrears, order the tenancy to be in effect until the earlier of five years starting from 2021 and “the release date of [the Landlord’s] incarcerated son”, and to order subsidized rental payments.
[^2]: Residential Tenancies Act, 2006, S.O.2006, c.17.
[^3]: Borowski at pages 358-363.
[^4]: Capreit v. Veiga, 2022 ONSC 47, 2022 ONSC, at para.47; Saunders v. Nkemdirim, 2018 ONSC 6642, at para. 20.