CITATION: Arseneault v. Dogra, 2023 ONSC 763
DIVISIONAL COURT FILE NO.: DC-22-182-00
DATE: 20230131
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Matheson and Kurz JJ.
BETWEEN:
Pierre Arseneault and Adnan Alam
Pierre Arsenault and Adnan Alam, self-represented
Appellants/Tenants
– and –
Kewal Dogra
Michael K.F. Thiele, for the Respondent/Landlord
Respondent/Landlord
Sabrina Fiacco and Eli Fellman, for the Landlord and Tenant Board
HEARD at Toronto: January 26, 2023 by videoconference
Kurz J.
REASONS FOR JUDGMENT
Introduction
[1] At the completion of argument of this appeal, this court advised the parties that it was dismissing this appeal and making the orders set out below, with reasons to follow. These are those reasons.
[2] The Appellants, Pierre Arseneault and Adnan Alam appeal the order of Member Wren of the Landlord and Tenant Board (the “Board”) dated February 1, 2022 (the Order”). At that time, the Board ordered that the tenancy between the Appellants and the Respondent landlord, Kewal Dogra (the “Landlord”), be terminated and that the Appellants be evicted from the rental unit, located in Ottawa (the “Unit”). The Board also ordered that the Appellants pay arrears of rent, fixed at $8,009.22 (less any amounts already paid to the Landlord), plus $46.03 per day for compensation for the use of the Unit from March 1, 2022 to the date they move out of the Unit, as well as the $186 application filing fee.
[3] The Board found that the conduct of Mr. Arseneault, who lived alone in the rental Unit, had substantially interfered with the Landlord’s reasonable enjoyment of the residential complex in question. That is a ground of termination, if not remediated, under s. 61 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).
[4] In their notice of appeal and factum, the Appellants asserted that the Board erred in law in granting its relief. They claimed that the Board’s order was improperly grounded in Mr. Arseneault’s refusal to allow the Landlord to photograph the Unit in order to market it for sale. They pointed to a previous decision of this court, Juhasz v. Hymas, [2016] O.J. No. 1277 (Ont. Div. Ct.) (“Juhasz”), in which a landlord was prohibited from photographing a tenant’s rental unit for privacy reasons. Referring to previous and unrelated proceedings involving Mr. Arseneault before the Board and the Human Rights Tribunal of Ontario, they further claimed that the Board is biased against Mr. Arseneault. They added that the Board ignored Mr. Arseneault’s disability, which he claims to be post-traumatic stress disorder.
[5] At the commencement of the hearing of this appeal, Mr. Alam stated that he does not support the appeal and wishes to withdraw from it. He blamed Mr. Arseneault for his involvement in the appeal but made clear that he no longer supports it. Mr. Alam and Mr. Arseneault exchanged personal allegations against each other at various points in the hearing of this appeal, which are not germane to any issues in this appeal save costs, as set out below.
[6] The Landlord asks for this appeal to be dismissed. He argues that the Board did not make its order simply because of a dispute about photographing the Unit. Rather it was because of a pattern of conduct by Mr. Arseneault, which led the Board to find that Mr. Arseneault had substantially interfered with the Landlord’s reasonable enjoyment of the residential complex in question (i.e. the Unit). The Landlord adds that this court’s decision in Juhasz v. Hymas, 2016 ONSC 1650 can be distinguished from the facts of this case.
[7] Further, the Landlord points out that the Appellants, through Mr. Arseneault, announced prior to the Board hearing that they refused to attend it. They then followed through by intentionally failing to attend. The Landlord adds that the Appellants are not entitled to appeal the factual findings of the Board, which in any event were based on the only evidence before it. Further, any other issues that the Appellants have attempted to rely upon in this appeal were not raised before the Board, should not be considered by this court and are otherwise groundless.
Right of Appeal and Standard of Review
[8] This is a statutory appeal under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Under that provision, a person affected by an order of the Board may appeal to this court. But that appeal is limited to questions of law alone. Such questions are subject to the standard of review of correctness: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65 at para. 37, citing Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
Background
[9] The factual findings of the Board were based on the only evidence before it, which was offered by and on behalf of the Landlord. In the absence of the Appellants, the Board was presented with no evidence to contradict that of the Landlord.
[10] In 2015, Mr. Alam moved into the Unit, thus commencing the tenancy that is the subject of this appeal. In 2016, Mr. Alam moved out and Mr. Arseneault moved into the Unit. While there was no formal transfer of the tenancy or a subtenancy, the Landlord conceded before the Board that there had been a deemed assignment of the Unit to Mr. Arseneault under s.104(4) of the RTA. Nonetheless, and for reasons not set out in the record, Mr. Alam continued to pay Mr. Arseneault’s rent to the Landlord. The Board found both to be tenants under the RTA. That finding is not the subject of this appeal.
[11] The Landlord testified that he would turn 81 years old in January 2022. For some time, he had wished to sell the Unit so that he could retire. On or about September 4, 2020, he hired a real estate agent to prepare the Unit for sale. On September 10, 2020 the Landlord notified Mr. Arseneault in writing of his intention to sell the Unit and provided Mr. Arseneault with the contact information for the agent.
[12] On September 16, 2020 the Landlord properly notified Mr. Arseneault that his agent would be at the Unit for the purpose of taking photos as part of the process of listing the property for sale. Mr. Arseneault repeatedly refused entry to the agent and Landlord on September 16, 2020 and other occasions, despite being served valid notices of entry.
[13] In fact, Mr. Arseneault became threatening and abusive toward the Landlord and his agent. His refusals to allow access to the Unit and threats of legal action against the Landlord’s real estate agent led that agent to terminate his agency relationship with the Landlord.
[14] In April 2021 the Landlord and his new real estate agent again attempted to gain access to the Unit upon proper notice to Mr. Arseneault. They were even accompanied by police officers, but again, Mr. Arseneault refused to allow access to the Unit.
[15] On April 27, 2021, Mr. Arseneault sent a threatening email to the Landlord’s employer of 30 years, a local Ottawa car dealer. In that email, Mr. Arseneault accused the Landlord of “running an illegal rental business from their establishment”. The Landlord testified that he was extremely embarrassed by this email to his employer, as he had been a good employee for the lengthy term of his employment.
[16] The Landlord testified that at his age, he needed to prepare for his retirement. He felt that the rental Unit would provide the necessary income for him to retire and live comfortably. He felt that Mr. Arseneault’s erratic and abusive behaviour had made him feel unsafe.
[17] Although it is not cited in the order, there is no dispute that on November 9, 2021, Mr. Arseneault sent a lengthy email to the Landlord, the Board, various Ontario government employees and the Toronto Star. In that email, he railed against various decisions of various courts and tribunals that he felt were adverse to his interests. He expressed his awareness of the Board hearing the following day and stated his refusal to attend. He wrote:
The Board has a hearing scheduled for November 10, 2021 and we will not participate.
The fact that the employees and management of the Landlord and Tenant Board conspired and committed fraud means any decision issued will be appealed and included in the upcoming Proceedings against the Crown for the Attorney General of Ontario conspiring and committing fraud against multiple citizens.
[Emphasis added.]
[18] Mr. Arseneault does not deny that he sent the email cited above or that he chose not to attend the Board hearing of November 10, 2021.
[19] The Appellants never requested a review of the order of the Board.
Issues
[20] This appeal raises the following issues:
Is Mr. Arseneault entitled to raise issues on appeal that were not before the Board?
What were the grounds for the Board’s order?
Does the decision of the Board violate the law as set out in Juhasz?
Was Mr. Arseneault denied procedural fairness or did the Board demonstrate a reasonable apprehension of bias against him?
Issue No. 1.: Is Mr. Arseneault entitled to raise issues on appeal that were not before the Board?
[21] Mr. Arseneault attempts to raise factual and legal issues that were not before the Board.
[22] As set out above, this appeal is limited to alleged errors of law committed by the Board. Nonetheless, Mr. Arseneault placed numerous documents regarding numerous other legal proceedings in the Appellants’ appeal book that is before this court. As we advised him, this appeal is limited to alleged errors committed by the Board in the February 1, 2022 decision, and not any other proceeding. This court does not consider any evidence that was not before the Board at the time of the hearing and is not reviewing its findings of fact.
[23] As this court held in Wilstar Management Ltd. v. Novotny, 2020 ONSC 134 (Ont. Div. Ct.), at para 4, within the context of another appeal of another Board decision, if a party fails to attend at a Board hearing and fails to seek a review of the Board decision, they cannot raise new issues on appeal. Further, if a party refuses to attend a Board hearing, they cannot claim that the adjudicator failed to consider evidence that was not presented: Ali v. Toronto Community Housing Corporation, 2019 ONSC 3627 (Ont. Div. Ct.), at para. 19.
Issue No. 2: What were the grounds for the Board’s order?
[24] Mr. Arseneault argues that the Board improperly terminated his tenancy and made its other orders on the mere basis of his refusal to allow photos to be taken of the Unit. He argues that this Court made clear in Juhasz that the Landlord was not entitled to photograph the Unit under any circumstances.
[25] There are two reasons to reject this argument. First, the Order was not based only on the refusal to allow entry in order to photograph the Unit for marketing. Rather, it was based on the entirety of Mr. Arseneault’s pattern of conduct towards the Landlord. As Member Wren wrote for the Board:
- Based on the evidence, I am satisfied on a balance of probabilities that the Tenant has substantially interfered with the Landlord’s reasonable enjoyment of the residential complex. The behaviour of the Tenant has continued unabated for several years. The Tenant’s refusal to allow entry to the Landlord or his agents has prevented the Landlord with preparation for his retirement. This along with the aggressive and inappropriate behaviour of the Tenant has negatively impacted the Landlord’s health and well being and right to feel safe.
[26] Further, the Board found that Mr. Arseneault failed to remediate his conduct, which would have voided the Landlord’s notice of termination. As Member Wren wrote:
Subsection 64(3) of the Residential Tenancies Act, 2006 (the “Act”) states that a tenant can void an N5 Notice by stopping the activities or correcting the described behaviour within seven days of being served with notice. In this case, the seven-day voiding period begins on July 16, 2021 and ends on July 22, 2021.
I find that the Tenant did not void the N5 notice. On July 21, 2021 the Tenant sent a threatening email to the Landlord and his representative denying the Landlord access to the rental unit. The Tenant has continued his threatening and inappropriate behaviour.
[27] That alone is sufficient to dispose of Mr. Arseneault’s arguments regarding the reasons and legal validity for the Order. Nonetheless, if I am in error, I continue my analysis by reviewing this court’s decision in Juhasz.
Issue No. 3: Does the decision of the Board violate the law as set out in Juhasz?
[28] Contrary to Mr. Arseneault’s arguments, this court’s decision in Juhasz is not an absolute prohibition on photographing a rental unit for the purposes of marketing it for sale. The facts of that case were quite different from those of this case. In Juhasz, the tenant’s objection to the taking of photographs of the rental unit in question for the purpose of marketing it was “that they would show her and her children’s personal belongings to the world over the internet in furtherance of the sale”. Here there is no evidence that the Landlord ever intended to photograph Mr. Arseneault’s personal belongings or that Mr. Arseneault raised an objection centred on those belongings. And as noted in Juhasz, any privacy issues of that sort could be accommodated through the parties agreeing to “photoshop” the photos.
Issue No. 4: Was Mr. Arseneault denied procedural fairness or did the Board demonstrate a reasonable apprehension of bias against him?
[29] Mr. Arseneault’s argument about procedural fairness seems to involve the Board’s calculation of the Appellant’s rental arrears. That is a finding of fact, which is not subject to appeal. In any event, I see no error in Member Wren’s calculations.
[30] With regard to a claim of a reasonable apprehension of bias, this too is an argument that was not raised before the Board. Further, it is not based on the decision that is the subject of appeal. Rather it arises from a farrago of assertions of impropriety that Mr. Arseneault makes against a variety of decision makers in a number of venues, ranging from the Board to the Human Rights Tribunal, to the Superior Court of Justice and the Court of Appeal for Ontario. The common thread in these claims, if any can be discerned, is the fact that these jurists and tribunals have decided against Mr. Arseneault, and he objects to that result.
[31] I add that none of Mr. Arseneault’s allegations touch upon the actual Board decision maker in this case, Dana Wren. I have reviewed the reasons set out in Member Wren’s order as well as a transcript of the hearing. None of that raises a scintilla of a reasonable apprehension of bias.
Other Arguments Raised by Mr. Arseneault
[32] Mr. Arseneault raised other arguments in his factum related to those set out above, but which, are very difficult to discern and again were not raised before the Board. They seem to be an attempt to challenge the evidence of the Landlord or offer further evidence on behalf of Mr. Arseneault, which as stated above, is not open to this court. Thus, I give it no effect.
Conclusion
[33] For the reasons set out above, I dismiss this appeal. In addition, as this court has already ordered:
a. the Respondent, Kewal Dogra, may direct the Sheriff at Ottawa to enforce the Order of the Ontario Landlord and Tenant Board issued on February 1, 2022, in file number EAL-96702-21. The Sheriff, if directed, shall enforce the Order and deliver vacant possession on or after January 31, 2023.
b. The requirement to have this Order approved as to Form and Content is dispensed with.
c. The appellant Pierre Arseneault shall pay costs to the respondent Kewal Dogra in the amount of five thousand dollars ($5,000.00).
d. The appellant Adnan Z. Alam is not liable for the costs in this appeal.
___________________________ Kurz J.
I agree
Backhouse J.
I agree
Matheson J.
Date of Release: January 31, 2023
CITATION: Arseneault v. Dogra, 2023 ONSC 763
DIVISIONAL COURT FILE NO.: DC-22-182-00
DATE: 20230131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson and Kurz, JJ.
BETWEEN:
Pierre Arseneault and Adnan Alam
Appellants/Tenants
-and-
Kewal Dogra
Respondent/Landlord
REASONS FOR JUDGMENT
Kurz J.
Date of Release: January 31, 2023