Ladowsky v. Chernyshova, 2024 ONSC 3623
CITATION: Ladowsky v. Chernyshova, 2024 ONSC 3623
DIVISIONAL COURT FILE NOS.: 202/24
DATE: 20240624
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
BETWEEN:
STEPHEN LADOWSKY, (Appellant)
AND:
LYUDMILA CHERNYSHOVA, (Respondent)
BEFORE: Leiper J.
COUNSEL: Tenant, Self-Represented
Landlord, Self-Represented
L. Naidoo, Landlord and Tenant Board
HEARD: In writing, June 21, 2024
ENDORSEMENT
[1] On March 26, 2024, the appellant, Stephen Ladowsky, sent a Notice of Appeal to the Divisional Court to appeal from the February 26, 2024 order of the Landlord and Tenant Board which ordered his tenancy be terminated effective March 8, 2024.
[2] On April 26, 2024, the Divisional Court sent notice to the appellant that the Court was considering dismissing his appeal on the basis that it appeared to be frivolous, vexatious and an abuse of process pursuant to Rule 2.1 of the Rules of Civil Procedure because only questions of law may be the subject of an appeal to the Divisional Court.
[3] The appellant did not respond to the notice.
[4] I am satisfied that the appeal should be dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure.
Background: The Hearing Before the Board
[5] The issue before the Board and the basis for its order was that the landlord, Lyudmila Chernyshova requires the rental unit for her son, Evgeniy Chernyshova, who was recently married and at the time of the hearing, was expecting his first child. Mr. Chernyshova testified at the hearing.
[6] The tenant alleged that the notice he received seeking that he vacate the unit, was suspicious because he had recently requested maintenance to the unit. The Board rejected that submission on the basis that the maintenance issue was dealt with in a timely fashion, and during the repair visit, the husband of the landlord told the tenant that Evgeniy was returning from Ukraine with his pregnant wife and they needed a place to stay. The husband gave the requisite N11 form to the tenant and asked that he sign it so that the unit could be vacated.
[7] The tenant also alleged that the landlords were trying to extract more rent from the unit because rent costs had increased since he took occupancy. The Board found that the tenant admitted that nothing had been said to him about increasing the rent.
[8] The tenant also argued that it was not reasonable that a couple and an infant would use a one bedroom apartment.
[9] The arguments at the hearing focussed on credibility and the motives of the landlord. The Board accepted the evidence of the landlord and her son. It rejected the tenant’s submission that the termination arose due to the maintenance request or due to the landlord seeking to raise the rent. The Board declined to find any bad faith in the suggestion that a couple with an infant would not live in a one-bedroom unit.
[10] The Board also found that the landlord had paid the one-month compensation as required to the tenant, taking into the account the tenant’s acts to return the paid compensation and attempts to frustrate the requirement that a landlord must pay compensation under s. 83(4) of the Residential Tenancies Act, 2006, S.O. 2006, c 17.
[11] Given that the tenant had not paid rent for the two months leading up to the hearing, and the landlord agreed to waive the rental payment, the Board found that the compensation had been paid as required by the landlord.
[12] The Board next considered whether the landlord was in serious breach of her obligations as required by s. 83(3) of the RTA. The tenant argued that due to the oven malfunctioning on his stove, and the service of the notice to vacate around the same time, that this amounted to a breach of the landlord’s responsibilities.
[13] The Board applied s. 83(3) to the facts. The Board noted the evidence from the tenant that he only used the burners on the stove. The Board concluded that the evidence did not establish that the landlord was in breach of her responsibilities.
[14] The balance of the decision dealt with the time required for the tenant to find a new apartment and the issues of the arrears of rent owing.
Principles applicable to Rule 2.1
[15] Rule 2.1.01 of the Rules of Civil Procedure allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.
[16] In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated that Rule 2.1 is to permit a motion judge to exercise a “gatekeeping function” in the case of litigation that is clearly frivolous, vexatious or an abuse of process. In doing so, the case must be clear, where the abusive nature of the proceedings clear from reading the pleadings. As the court found in Visic, the Rule should not be used for a “close call.”
Analysis
[17] An appeal from a decision of the Landlord and Tenant Board to the Divisional Court may only be made on a “question of law”: Residential Tenancies Act, 2006, S.O. 2006, c 17.
[18] The tenant’s notice of appeal sets out two grounds of appeal which can be summarized as follows:
The adjudicator erred in law by failing to require the landlord to prove that the rental unit is not owned by a corporation, after having raised that issue.
The landlord has not paid the compensation to the tenant as required and took steps after the hearing to request the waived one month rent as ordered by the Board.
[19 Neither of these grounds raise a “question of law.” The Supreme Court of Canada has described a “question of law” in these terms:
…. 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 law and fact are questions about whether the facts satisfy the legal tests.
Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 SCR 748 at para 35; Solomon v. Levy, 2015 ONSC 2556 at para 32.
[20] The tenant’s Notice of Appeal raises an issue that was not in contention at the hearing or connected to any of his arguments as described in the reasons for decision. The issues at the hearing were on questions of fact, that is the credibility of the landlord’s assertion and that of her son, that she required the unit for him to occupy. The issues of fact were found in favour of the landlord.
[21] Similarly, the question of whether and how the landlord paid compensation to the tenant was a question of fact, which the Board resolved and accounted for in its order. The assertion in a Notice of Appeal that the landlord is in breach of that order does not raise an issue of law, although it might give rise to a ground for enforcement of the order it is accurate. However, on the fact of it this assertion is not a question about the correct legal test or whether the facts before the Board satisfied the applicable legal tests on the issues.
[22] Given that the Notice of Appeal does not raise a question of law, I conclude that Mr. Ladowsky cannot succeed on appeal. As such the appeal is subject to being dismissed as frivolous, vexatious and an abuse of process pursuant to Rule 2.1 of the Rules of Civil Procedure.
Conclusion
[23] For these reasons, I dismiss Mr. Ladowsky’s appeal. The stay from eviction is lifted and he shall vacate the unit by August 10, 2024.
[24] Given that neither party made submissions in response to the Court’s Rule 2.1 notice, no costs are ordered.
Leiper, J.
Date: June 24, 2024