CITATION: Westdale Properties v. Reisher, 2023 ONSC 876
DIVISIONAL COURT FILE NO.: 456/22 DATE: 20230207
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
WESTDALE CONSTRUCTION CO. LIMITED c.o.b. as WESTDALE PROPERTIES
Douglas J. Spiller, for the Moving Party, (Respondent/Landlord)
Moving Party (Respondent/Landlord)
– and –
JEANNETTE REISHER
Kyle Warwick, for the Responding Party (Appellant/Tenant)
Responding Party (Appellant/Tenant)
HEARD at Toronto: November 7, 2022
HEARD at Toronto: November 7, 2022
leiper J. (Orally)
PART I: INTRODUCTION
[1] The Respondent/Moving Party, Westdale Construction Co. Limited c.o.b. as Westdale Properties, (“Westdale”) brought a motion before me to quash the Appellant/Ms. Reisher’s appeal from an eviction order made by the Landlord and Tenant Board (“LTB”) on the basis that Ms. Reisher’s appeal is devoid of merit. Westdale further argues that the appeal should be quashed as an abuse of process.
[2] Ms. Reisher has appealed the eviction order made against her pursuant to the Residential Tenancies Act, 2006 (“RTA”). The first hearing and order of the LTB was made on June 5, 2022 (the “Hearing Decision”). The LTB subsequently dismissed a review of the Hearing Decision on August 3, 2022 (the “Review Decision”).
[3] The Notice of Appeal sets out the following alleged errors in law made by the LTB:
a. It applied the wrong legal test in determining the landlord had no further requirement to accommodate the tenant under the Human Rights Code,
b. It failed to comply with its mandatory duty pursuant to s. 83 of the RTA to meaningfully consider all of the circumstances and to meaningfully consider relief from eviction, before so ordering, or, in the alternative, failed to provide adequate reasons for denying relief from eviction pursuant to s. 83, and
c. It failed to provide the tenant with procedural fairness by relying on hearsay testimony by the property manager that three absent tenants had been afraid to attend the hearing to testify against the tenant and by relying on this evidence to decide a key point in the matter.
[4] For the following reasons, I dismiss Westdale’s motion to quash the appeal.
PART II: BACKGROUND
[5] The Appellant is the tenant of a rental unit, where she has lived for approximately 15 years. She has family and professional supports in the community for a longstanding mental disorder. She receives Ontario Disability Support Program (“ODSP”). Her rent is paid directly from her social assistance funding.
[6] At the onset of the pandemic, other tenants began to complain of the Appellant’s behaviour. Westdale brought an application to the LTB to evict the Appellant.
[7] The conduct of concern included that Ms. Reisher had “yelled and screamed” on several occasions, she failed to wear a mask or socially distance when public health protocols required this, and further:
• Her former upstairs neighbour reported that Ms. Reisher had pushed her way into her unit, saying “I want to see… I want to see”, and then leaving.
• A tenant reported that Ms. Reisher knocked on his door and yelled at him.
• Ms. Reisher’s upstairs neighbour reported that she had yelled at him, called the fire department to report a fire in his unit when there was none, accused him of stealing from her, and on two occasions, played loud music late at night.
• Her next-door neighbour reported that she had yelled at him and used inappropriate language on one occasion, turned his doorknob on another occasion, and reported him to police for something he had not done.
[8] The Respondent’s community support team (her psychiatrist, the Canadian Mental Health Association (“CMHA”), and Jewish Family and Child Services (“JFCS”)) assisted Ms. Reisher with responding to the eviction proceedings. The team also reassessed and adjusted her medication and increased their visits to her. Her JFCS worker provided information to the LTB that the isolation from the pandemic had exacerbated some of the Respondent’s inappropriate behaviours, causing her to act out in her place of residence.
[9] In August of 2021, the parties resolved the eviction proceedings and agreed to a settlement order by which Ms. Reisher agreed to refrain from similar conduct and thus would be able to stay in her home.
[10] In March 2022, Westdale applied to the LTB for an eviction order, based on its allegation that Ms. Reisher breached the consent order of August 2021.
[11] In response to that notice, her support team convened. Her psychiatrist admitted her to hospital for a three-day stabilization period.
[12] On June 1, 2022, the LTB convened a hearing. Ms. Reisher’s mother gave evidence about Ms. Reisher’s health and her background at her apartment. The LTB also received letters from the community support team. Ms. Reisher did not dispute she had behaved in the ways described by the other tenants. These were admittedly disruptive and problematic behaviours.
[13] The LTB also heard evidence from the property manager, and it heard from two of Ms. Reisher’s neighbours as to the impact of Ms. Reisher’s conduct on a peaceful enjoyment of their property and disruption of sleep.
[14] The LTB concluded that the tenancy must be terminated because it concluded that Ms. Reisher’s behavior “continues to substantially interfere with the reasonable enjoyment of other tenants in the residential complex.”
[15] The LTB accepted the evidence from the property manager that there were three additional tenants who had complained but did not want to report. The LTB concluded that those three tenants were “too afraid to testify at this hearing.”
[16] The Hearing Decision reads, in part, that:
I find there is no reasonable expectation that the Tenant’s behaviour toward other tenants in the residential complex will change. Other tenants should not be required to continue to live with the ongoing abuse from Ms. Reisher. Therefore, I find the tenancy must be terminated.
[17] Ms. Reisher applied for a review of the decision. The LTB concluded in the Review Decision that Ms. Reisher was not denied procedural fairness nor was she able to be accommodated under the Human Rights Code. Ms. Reisher tendered evidence on the Review that she expected to receive enhanced community care by way of an Assertive Community Team, within 3-6 months. The LTB did not find this evidence persuasive and confirmed the order to evict Ms. Reisher.
[18] On August 18, 2022, Ms. Reisher served notice of her appeal from the Hearing Decision and the Review Decision. Westdale filed this motion on September 14, 2022.
PART III: LEGAL FRAMEWORK
[19] Section 134(3) of the Courts of Justice Act provides that on motion, a court to which an appeal is taken may, in a proper case, quash the appeal. Where an appeal from the LTB to the Divisional Court is not based on an error of law, it may be found to be devoid of merit: Kerr v. Maynard, 2022 ONSC 4259 at para. 16.
[20] Ms. Reisher submits that there is a high bar to quashing an appeal. These reasons ask whether Westdale has successfully persuaded me that this appeal is clearly devoid of merit with reference to the grounds of appeal and the record before the LTB.
[21] An appeal from the LTB may only be taken on a question of law. The Supreme Court of Canada has provided guidance on what is a question of law and what is a question of fact: see Canada (Director of Investigation & Research) v. Southam Inc.:
[Q]uestions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests. (Southam at para. 35).
[22] Westdale’s alternative ground of relief is that this appeal is an abuse of process, brought simply to obtain an automatic stay of the eviction order. Westdale relies on a line of caselaw in which this court has quashed appeals where tenants in default of payment of rent seek to extend their “rent-free existence” by filing meritless appeals to drag out the process for their own benefit: see: Regan v. Latimer, 2016 ONSC 4132(Div. Ct.) at para. 25; Wilkinson v. Seritsky, 2020 ONSC 5048(Div. Ct.) at para. 34.
[23] An indicator of abuse of process, or “gaming the system” is where a tenant persistently fails to pay rent prior to and through the appeal period without any explanation for that failure to pay rent.
IV: ISSUES ON THE MOTION
[24] The issues on the motion may be stated as follows:
a. Do the following grounds for appeal by Ms. Reisher fail to raise any question of law?
i. The Board applied the wrong legal test in determining the landlord had no further requirement to accommodate the tenant under the Human Rights Code;
ii. The Board failed to comply with its mandatory duty pursuant to s. 83 of the RTA to meaningfully consider all of the circumstances and to meaningfully consider relief from eviction, before so ordering, or, in the alternative, failed to provide adequate reasons for denying relief from eviction pursuant to s. 83.
iii. The Board failed to provide the tenant with procedural fairness by relying on hearsay testimony by the property manager that three absent tenants had been afraid to attend the hearing to testify against the tenant and by relying on this evidence to decide a key point in the matter.
b. Is the appeal by Ms. Reisher an abuse of process?
PART V: ANALYSIS OF THE ISSUES
a. Do all grounds of appeal by Ms. Reisher fail to raise any question of law?
Ground of Appeal #1: The Board applied the wrong legal test in determining the landlord had no further requirement to accommodate the tenant under the Human Rights Code
[25] Westdale submits that Ms. Reisher has not identified the test for accommodation or included how the LTB erred in law. Westdale submits that the LTB’s reasons reveal that it was aware of the accommodation argument. It considered the evidence and determined that it did not show any reasonable expectation the tenant’s conduct would change. The LTB further found there were no submissions on how Ms. Reisher could be accommodated.
[26] Ms. Reisher submits that the LTB erred in law by not failing to apply the Human Rights Code during its decision making: see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 ; RTA s. 174, s. 3(4); Human Rights Code, s. 47(2); s. 2(1). Ms. Reisher submits that the LTB neither considered the procedural requirement that the landlord ought to have obtained all relevant information about Ms. Reisher’s disability and how it might be accommodated, nor did it consider the substantive component of the test, and the question of undue hardship to the landlord.
[27] Having reviewed the findings of the decision of the Board of June 5, 2022, and the review decision of August 3, 2022, I cannot conclude that this ground of appeal is devoid of merit. There is an argument to be made that the LTB in its Hearing Decision appeared to place the onus on Ms. Reisher for resolving the issue of her right to accommodation under the Human Rights Code. The reasons do not discuss the test for accommodation, nor do they discuss any potential accommodation that might have avoided the necessity of evicting Ms. Reisher. The LTB Hearing Decision did not mention any evidence or submissions from Westdale about the “undue hardship” element of the substantive test for accommodation.
[28] It is an error of law to apply the wrong legal test. The duty to accommodate is found in ss. 2(1), 9, 11 and 17 of the Code. It has procedural and substantive components. A landlord must obtain all relevant information about a tenant’s disability and how it might be accommodated: see ADGA Group Consultants v. Lane (2008), 91 O.R. (3d) 649, 2008 39605 at para. 107.
[29] I conclude that this ground of appeal is not clearly devoid of merit. It engages questions of law and the application of the Human Rights Code to the decision to be made by the LTB, both on the Hearing Decision and on the Review Decision, which relied on the evidence and findings of fact from the Hearing Decision.
[30] Although this finding would dispose of the motion, for completeness, I consider the remaining submissions that the other grounds of appeal are devoid of merit.
Ground of Appeal #2: The Board failed to comply with its mandatory duty pursuant to s. 83 of the RTA to meaningfully consider all of the circumstances and to meaningfully consider relief from eviction, before so ordering, or, in the alternative, failed to provide adequate reasons for denying relief from eviction pursuant to s. 83.
[31] Section 83 of the RTA ensures that the LTB will carefully consider the impact of eviction in the context of each application. This section ensures that the LTB considers all circumstances and the fairness of a decision to evict or a refusal to evict.
[32] Section 83 provides:
- (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement:
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or,
(b) order that the enforcement of the eviction order be postponed for a period of time.
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[33] A failure to consider s. 83 is an error in law: see Musse v. 6965083 Canada Inc., 2021 ONSC 1085 at para. 58.
[34] Ms. Reisher tendered evidence at her hearing on the issue of whether it would be “fair” to refuse to evict her, including the length of the tenancy, the relative recency of her problematic conduct and their relationship to the pandemic restrictions, the impact of an eviction on Ms. Reisher, her potential for homelessness and loss of community supports. Ms. Reisher submits that the Hearing Decision is silent on these factors and fails to explain whether they were considered, or if they were, why these were not found to be persuasive.
[35] Westdale submits that because the LTB in the Hearing Decision wrote that it had considered “all of the circumstances” and referred to s. 83, the Board cannot be said to have failed to consider that provision. Further, Mr. Spiller, for Westdale cited various portions of the transcript from the June hearing in which the presiding Member adverted to the potential impact of eviction on Ms. Reisher, the impact of her conduct on her fellow tenants and the need to balance these factors. Taking this into account alongside the Hearing Decision, Westdale submits the appeal does not raise a question of law, but rather it is a complaint with the outcome of how the correct law was applied to the facts before the LTB.
[36] I disagree. The LTB speaks through its reasons. The reasons are the place where parties may expect to see the important issues and relevant legal tests applied, and explained meaningfully, particularly in matters of significance, such as in eviction cases. While the transcript may go some way to demonstrating that the LTB was alive to the issues, it is the process of explanation and elucidation in reasons which puts on record how those issues were balanced and determined. Here, the reasons from the Hearing Decision do not discuss the impact on Ms. Reisher or any of the evidence from her support team. The reasons include only a one-line, conclusory sentence without any explanation of the circumstances and the requirements found in s. 83. I therefore find that there is an arguable point that the LTB erred in law by not meaningfully considering s. 83, an important provision in the overall scheme of the RTA.
[37] I conclude that this ground of appeal is not devoid of merit.
Ground of Appeal #3: The Board failed to provide the tenant with procedural fairness by relying on hearsay testimony by the property manager that three absent tenants had been afraid to attend the hearing to testify against the tenant and by relying on this evidence to decide a key point in the matter.
[38] The essence of this ground of appeal is that Ms. Reisher was not able to test this evidence under cross-examination, and thus was denied procedural fairness because the LTB relied upon it in support of its decision to order her eviction. Both the Hearing Decision and the Review Decision referred to the fears of three other tenants who were not present at the hearing and whose evidence could not be tested by Ms. Reisher.
[39] Westdale submits that this ground of appeal raises no question of law but is instead an issue of mixed fact and law, because it involves “the analysis of the interplay between the application of by-laws and statutes to various stages of the proceeding as the matter moves through the LTB.”
[40] I disagree. A failure to accord procedural fairness may raise a question of law: see Harper v. Sauve, 2022 ONSC 5754 at para. 11. A tenant facing eviction may have a legitimate expectation that they will be able to test “key evidence” that is relied upon to support an eviction order: see Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 at para 44. Here, the LTB emphasized the fears of three tenants who did not attend the hearing.
[41] I conclude that this ground of appeal cannot be said to be devoid of merit.
b. Is the appeal by Ms. Reisher an abuse of process?
[42] Ms. Reisher’s rent is paid directly by the Ontario Disability Support Program in Ontario. She is a long-term tenant. Mr Spiller, on behalf of Westdale, fairly acknowledged that the recent delay in payment of Ms. Reisher’s rent is not the main issue on this motion. There is nothing in the record to suggest she is attempting to live rent-free. Having found that the grounds of appeal are not devoid of merit, I cannot conclude that the filing of an appeal, with the result that Ms. Reisher received an automatic stay of the eviction amounts to an abuse of process in these circumstances. There is no merit to the argument that this appeal should be quashed for abuse of process.
VI: SHOULD THE STATUTORY STAY BE LIFTED?
[43] This Court may lift a statutory stay on an appeal where the respondent has shown "demonstrable and unusual hardship […] and […] a reasonable measure of protection can be afforded”: see Minas v. Adler, 2022 ONSC 3053 at para.17; Ryan v. Laidlaw Transportation Ltd. 1994 616 (ON CA).
[44] Westdale submits that the finding of Ms. Reisher’s interference with the reasonable enjoyment of their premises by other tenants is entitled to deference and ought to give rise to a lifting of the statutory stay.
[45] While Ms. Reisher does not challenge her problematic conduct, the evidence from the hearing reveals that it is grounded in a mental disorder, that Ms. Reisher’s community treatment team has taken steps to try and ameliorate her behaviour and she is anticipated to have the services of a more assertive community team in the near future.
[46] Lifting the stay at this stage would effectively determine the appeal, because Ms. Reisher would lose her housing. This is the issue on the appeal. On balance, at this stage, I cannot conclude that there is “unusual hardship” which would justify lifting the stay.
VII: SHOULD SECURITY FOR COSTS BE ORDERED?
[47] The Rules of Civil Procedure provide that security for costs may be ordered where it appears that:
a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
b) an order for security for costs could be made against the appellant under rule 56.01; or
c) for other good reason, security for costs should be ordered.
[48] I have concluded that the appeal is not frivolous and vexatious. Ms. Reisher receives social assistance. There are no compelling reasons, such as fraud, or putting assets out of reach to defeat any costs order that may follow from an unsuccessful appeal. I decline to exercise my discretion to order security for costs.
VIII: DECISION AND COSTS
[49] The motion is dismissed. The parties have agreed to costs in the amount of $2,915 plus HST in favour of Ms. Reisher. Counsel may submit a draft order to my attention which reflects the corrections to the names of the parties which was addressed at the outset of this motion.
___________________________ LEIPER J.
Date of Oral Reasons for Judgment: November 7, 2022
Date of Written Release: February 7, 2023
CITATION: Westdale Properties v. Reisher, 2023 ONSC 876
DIVISIONAL COURT FILE NO.: 456/22 DATE: 20230207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WESTDALE CONSTRUCTION CO. LIMITED c.o.b. as WESTDALE PROPERTIES
Moving Party (Respondent/Landlord)
– and –
JEANNETTE REISHER
Responding Party (Appellant/Tenant)
ORAL REASONS FOR JUDGMENT
leiper J.
Date of Oral Reasons for Judgment: November 7, 2022
Date of Written Release: February 7, 2023