Court File and Parties

CITATION: Akilah v. Starlight, 2024 ONSC 3186 DIVISIONAL COURT FILE NO.: 134/24 LANDLORD TENANT BOARD FILE NO: LTB – L – 015657-22 DATE: 2024-06-04

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

BETWEEN: Almaz Akilah, Appellant And Starlight Canadian Residential Growth Fund c/o Sterling Karamar, Respondent

BEFORE: Leiper J.

COUNSEL: Almaz Akilah – self represented K. Ley - Counsel to the respondent

HEARD: By videoconference June 3, 2024

Endorsement

Introduction

[1] The appellant, Ms. Akilah appeals from the December 4, 2023 decision of the Landlord and Tenant Board dismissing her application for relief. The Board found that the respondent landlord had not breached the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Ms. Akilah requested a review, which upheld the Board’s decision. She brought her appeal to this court pursuant so s. 210 of the Act.

[3] Ms. Akilah alleged that the landlord breached the RTA in several ways:

(a) By refusing to reimburse her for an NSF cheque charge when she changed her way of paying rent from post-dated cheques to direct deposit;

(b) By returning to the appellant her pre-paid amounts of rent, along with her October 2022 rent payment in the month of September 2022, which she said was “disrespectful;” and,

(c) By failing to take steps to adequately address excessive noise from the unit directly above her which she claimed interfered with her enjoyment of her living space, even though those tenants had left in August of 2022. Ms. Akilah alleged that the new tenants also were excessively noisy and further breached her privacy by installing a retractable camera in her bathroom.

Nature of the Appeal

[4] As this is an appeal under s. 210 of the RTA, it is limited to questions of law. This means that an appeal is not a chance to have a re-hearing or for an appellant, like Ms. Akilah, to argue that the Board should have come to a different conclusion. An appeal on a question of law means did the Board apply the law that it should have applied? Did the Board give Ms. Akilah the right to a hearing and show that it understood her arguments?

Summary of Findings

[5] When I review the reasons of the Board, I find that it did not make a mistake in law, and that is showed it understood what Ms. Akilah was arguing. However, it disagreed with her position at the hearing, and found that the landlord had not breached the RTA. The fact that the Board disagreed with one of the parties after hearing evidence and argument does not mean that it made a mistake.

The Noise Complaint Issue

[6] The Board heard evidence on the noise complaints and concluded that the landlord had adequately investigated the noise issues and fairly concluded that there was no excessive noise. The Board found that the sounds were reasonably those associated with activities of daily living and to be expected in a building with multiple units. The Board noted that this application was filed shortly after the landlord had filed a notice to terminate Ms. Akilah’s tenancy because of her multiple unfounded and “irrational” noise complaints against other tenants which was interfering with their reasonable enjoyment of their tenancies.

[7] In her factum, Ms. Akilah describes representative of the landlord as having tried to bully her and force her from her home. She writes that the tenants above and their unruly, disrespectful children have interfered with her and her guests. She notes that she has contacted police at 22 Division but was told that before they can take action, the landlord must issue a cease-and-desist order, which has not happened.

[8] Although Ms. Akilah did not file a transcript of the evidence she placed before the Board, the reasons reveal that the Board understood her complaint of suffering from the ongoing noise from the neighbouring unit. The Board also noted there was no corroborating evidence or recordings to assist with the noise complaints. It found that it could be that Ms. Akilah is “super-sensitive” to the noises associated with the living of other persons around her. On the record before me, I cannot find that there is any legal error in the Board’s finding. I do appreciate that Ms. Akilah strongly disagrees, but nevertheless she did have a hearing on this issue, and I would not interfere with the Board’s ruling.

[9] Although Ms. Akilah submitted that the Board ignored her position, I disagree. The Board finding as it did shows that it understood and considered her arguments, even though in the end, it decided not to give effect to them. That is not the same as ignoring her arguments.

The Rent Cheque and Deduction Issues

[10] I make the same findings of the Board about its return of the pre-paid rent and its deduction of the filing fee and NSF cheque charge from the credit in her rental account.

[11] Ms. Akilah had been in the habit of paying more rent into her account with her landlord than owed, thus creating what she considers a “cushion” toward future rent. The issue over her account began in September of 2022 when she requested a refund cheque. Her ledger stood at $2362.10, however she did not want all of this returned given her upcoming October rent payment for a lesser amount. When she received a full refund of the credit, she made a copy of the cheque, did not cash it, and returned it to the landlord.

[12] While Ms. Akilah experienced this as a “disrespectful” act on the part of the landlord, which the Board acknowledged. However Ms. Akilah also disputed the landlord’s authority to deduct its filing fee for a parallel application the landlord brought to the Board concerning her excessive noise complaints. Ms. Akilah described this as an unlawful deduction. The Board did not agree, noting that if Ms. Akilah prevailed over the landlord in the landlord’s application about her noise complaints, she would be credited the filing fee.

[13] Ultimately, in the landlord’s application the Board determined that Ms. Akilah should pay the filing fee. Although it allowed the tenancy to continue, the Board imposed conditions on Ms. Akilah to address the landlord’s concerns that she was making unreasonable complaints about noise from a series of other tenants.

[14] That finding can be seen at paragraph 14 of the Board’s decision of November 30, 2023, involving Ms. Akilah and her landlord in LTB File Number LTB-L-015657-22. The Board wrote:

13.I am satisfied that the Tenant’s conduct substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord and the other tenants. I say this because I found the testimony of the Landlord’s Witness credible and supported by numerous email correspondence documenting the disturbance.

14. The Landlord incurred costs of $186.00 for filing the application and is entitled to reimbursement of those costs. The Landlord has already debited the Tenant’s account with this amount. As such, no costs shall be ordered.

[15] I would not interfere with the finding of the Board that the filing fee was lawfully deducted from Ms. Akilah’s account, given this earlier finding of the Board. The landlord has noted in its materials, that this decision has not been appealed.

[16] Ms. Akilah also disputes the Board’s finding that the landlord should bear the cost of an NSF charge when the landlord cashed a cheque she had provided to them for rent while she had changed her method of payment to direct deposit. The Board found that:

17.The Tenant submitted that she had originally paid her rent by post dated cheques. At some point in 2021, the Tenant switched to electronic transfer of rent payments. The Tenant submitted that the Landlord did not return the post dated cheques, and as a result the Landlord attempted to charge her twice for the rent in January 2022. After her electronic payment went through, the postdated cheque was posted and returned NSF, and the Tenant incurred a charge of $48.00. The Tenant seeks reimbursement of the $48.00 from the Landlord.

18.It was the Tenant’s responsibility to cancel her post dated cheques, once she switched to electronic payments, not the Landlord’s. As such, I am not satisfied that the Landlord breached section 22 or 23 of the Act. The Tenant is not entitled to the reimbursement of the NSF charge from the Landlord.

[17] While there may have been more than one way for the landlord to handle the post-dated cheques provided by Ms. Akilah, that evidence was for the Board to assess. It did so and made a finding that does not contain any obvious error in logic or in law, that being that it was Ms. Akilah’s responsibility to cancel her cheques when she changed the way in which she was to pay her rent.

[18] Finally, Ms. Akilah submits that the Board misunderstood her reference to the Landlord’s Rent Assistance Program. She submits that she was not arguing that this meant she was entitled to a month of free rent. On appeal she agreed that this was not the case but stated that she had merely mentioned that when her landlord returned the whole amount of her credit in the disputed cheque of September of 2022, she had said that perhaps this signaled that the landlord was “helping her out” by giving her a month of free rent.

[19] This, as it turned out, was not the case. The Board properly found that this was not the purpose of the Landlord’s Rent Assistance Program. While Ms. Akilah’s intention in raising the Rent Assistance Program may not have been crystal clear in the Board’s reasons, the result is the same in either case: the Rent Assistance Program did not apply in her circumstances.

[20] Finally, although she did not discuss this during oral argument, Ms. Akilah filed new issues and evidence on the appeal, including an improper notice of rent increase, and a list of additional complaints in the winter and spring of 2024 about excessive noise. These issues were not the subject of evidence before the Board. They do not raise a question of law.

[21] I agree with the landlord’s submission that it is not fair to consider the new issues and evidence for the first time on appeal: See Rule 61.08(2) of the Rules of Civil Procedure, R.R.O. 1990, Ont. Reg. 194

Conclusion and Costs

[22] For these reasons, I dismiss Ms. Akilah’s appeal.

[23] The landlord seeks partial indemnity costs in responding to this appeal in the amount of $5,500. Ms. Akilah submits that no costs should be ordered, and that she cannot afford to pay costs. Ms. Akilah is self-represented. I accept her submission that she is of limited means, and moreover that even though the Board found against her, she did not bring these proceedings in bad faith and is troubled by her experience of the events in her unit. She has also recently been ill and the noise from her surroundings has affected her sleep, even if it is a reasonable finding that her experience of the noise is not objectively accurate.

[24] I find that in all the circumstances, although the landlord has prevailed, this long-time tenant ought not to pay more than nominal costs. I order that Ms. Akilah pay costs in the amount of $200.00.

Leiper, J.

Date: June 4, 2024