CITATION: Lindsay v. Ecuhome Corporation, 2024 ONSC 3749
DIVISIONAL COURT FILE NO.: 434/23
DATE: 20240702
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
MARK LINDSAY
Appellant
– and –
ecuhome corporation
Respondent
Self-Represented, Appellant
Spencer Toole, for the Respondent
HEARD at Toronto: June 18, 2024
Davies J.
REASONS FOR DECISION
A. Overview
[1] Mr. Lindsay has been living in a residential unit that is owned and operated by Ecuhome Corporation since June 2019. Mr. Lindsay has received a rent-geared-to-income (RGI) subsidy throughout his tenancy.
[2] On May 18, 2023, the Landlord and Tenant Board terminated Mr. Lindsay’s tenancy. The Board found that Mr. Lindsay owed $8,964 in rental arrears. The Board ordered Mr. Lindsay to move out by May 29, 2023 unless he paid the arrears.
[3] Mr. Lindsay appeals the Board’s decision. Mr. Lindsay can only appeal the Board’s decision on a question of law: Residential Tenancies Act, s. 201.
[4] Mr. Lindsay advanced four arguments on his appeal:
a. This Court cannot meaningfully review the Board’s decision because the hearing was not fully recorded;
b. The Board erred in failing to grant him an adjournment;
c. The Board erred in failing to find that Ecuhome had increased his rent in violation of the Residential Tenancies Act; and
d. The Board erred in accepting the evidence presented by Ecuhome about the arrears.
[5] For the following reasons I dismiss Mr. Lindsay’s appeal.
B. Absence of a complete recording does not prevent a proper appellate review
[6] The Landlord and Tenant Board usually records its proceedings. On an appeal from the Board, appellants are expected to file a transcript of the proceedings. Mr. Lindsay did not file a transcript. Rather, he filed the audio recording he was given by the Board, which contains the first 42 minutes of the hearing. The recording stops before the end of the hearing. The Board did not provide an explanation for why part of the hearing was not recorded.
[7] Mr. Lindsay argues I cannot conduct a proper appellate review of the Board’s decision without a complete recording of the hearing below.
[8] In some cases, the absence of a complete record of the hearing before the Board will be a reason for this Court to order a new hearing even though there is no statutory or common law requirement for the Board to produce a recording of its proceedings: Billion v. Vaillancourt, 2016 ONSC 5830, at para. 7. The question is whether the court’s ability to conduct a proper review is compromised by the absence of a recording. If the court cannot conduct a meaningful review based on the available recording, a new hearing may be required. If, however, the court can conduct a full appellate review, the absence of a complete recording will not require a new hearing.
[9] I am satisfied that I can conduct a full appellate review of the Board’s decision based on the portion of the hearing that was recorded, the documents filed by Mr. Lindsay on the appeal and the written reasons.
[10] While not complete, the recording captured a significant amount of what transpired before the Board. Neither Ecuhome nor Mr. Lindsay called any independent witnesses at the hearing before the Board. The evidence adduced by Ecuhome was fully recorded. The recording also captured a lengthy discussion between Mr. Lindsay and the Vice Chair about Mr. Lindsay’s position that he was not in arrears on his rent because his rent-geared-to-income subsidy (RGI) was calculated incorrectly and because the landlord had illegally increased his rent. From the start of the hearing, the Vice Chair made it clear that the Board had no jurisdiction to consider whether Mr. Lindsay’s RGI subsidy was properly calculated but he could consider Mr. Lindsay’s argument that his rent was increased illegally. Mr. Lindsay sought an adjournment so he could pursue a review of the RGI subsidy calculations in a different forum. Mr. Lindsay’s submissions and Ecuhome’s submissions on his adjournment request are also captured on the recording. The recording ends when Mr. Lindsay was looking for the documents related to the changes in his rent over the years. Mr. Lindsay has filed those documents on the appeal so I know what information he put before the Board.
[11] The Board’s decision accurately summarizes the evidence from the hearing. The reasons set out Mr. Lindsay’s position in detail. The Board provides reasons for denying the adjournment application. The reasons also contain clear findings of fact about what rent is owing and what rent has been paid. Finally, the Board articulated the factors it considered in deciding whether to exercise its discretion to delay the termination of Mr. Lindsay’s tenancy.
[12] Taken together, the recording of the hearing, the appeal record and the reasons allow for a full appellate review of the Board’s decision. The absence of a complete recording is not a basis to order a new hearing.
C. Denial of an Adjournment
[13] Mr. Lindsay’s primary argument is that his RGI subsidy was not calculated properly in 2020, 2021 and 2022. Mr. Lindsay argued before the Board that if the RGI calculations for those years were corrected, he would not be in arrears on his rent and there would be no basis for his eviction.
[14] The Board correctly found it did not have jurisdiction to determine issues related to the proportion of the rent Mr. Lindsay was required to pay. RGI calculations are governed by the Housing Services Act and s. 203 of the Residential Tenancies Act says that the Board shall not “make determinations or review decisions” concerning eligibility for an RGI subsidy or the amount of the subsidy. The Board made no error in finding it could not revisit the RGI calculations for 2020, 2021 or 2022.
[15] Mr. Lindsay sought an adjournment of the hearing so he could seek a review of the RGI calculations from 2020, 2021 and 2022 in a different forum. The Board denied that request. The Board found that there was no basis to find a review of the RGI calculations would be successful. The Board also found that Mr. Lindsay had not exercised reasonable diligence in seeking to review the calculations before the hearing. The Board did not make any error in making either finding.
[16] To understand my conclusion that the Board did not err in denying Mr. Lindsay’s adjournment request, I must review the history of his RGI subsidy calculations in some detail.
[17] When Mr. Lindsay first moved into his unit, he was required to pay $145 towards the market value rent of $682. His RGI subsidy covered the rest of the market rent. Mr. Lindsay takes the position that he should never have been required to pay more than $145 towards his rent. However, in October 2020, Mr. Lindsay received a notice that his RGI subsidy was going to decrease and he would be required to pay the full market rent of $682 as of December 2020. Mr. Lindsay sought a review of that decision, which was denied. However, in March 2021, his RGI subsidy was re-calculated because Mr. Lindsay provided new information about his 2020 income. Based on the new information, Mr. Lindsay was again required to pay $145 towards his rent. That decision was made retroactive to December 2020 and the arrears Mr. Lindsay had incurred between December 2020 and March 2021 were reversed.
[18] In October 2021, Mr. Lindsay received a notice that his RGI subsidy had decreased and his portion of the RGI rent would increase to $593 on January 1, 2022. There is no evidence that Mr. Lindsay sought a review of that decision. In November 2022, Mr. Lindsay received a notice that his contribution towards the rent would be decreasing to $470 as of December 2022. Again, there is no evidence Mr. Lindsay sought to review that decision. Instead, to the extent Mr. Lindsay paid rent, he continued to pay $145 a month.
[19] Mr. Lindsay did not adduce any evidence to show the 2021 or 2022 calculations were incorrect based on the income information he submitted in those years. The Board, therefore, made no error in finding there was no basis to conclude a review of the calculations would be successful.
[20] The Board also made no error in finding that Mr. Lindsay had not exercised reasonable diligence in seeking a review of the calculations. Mr. Lindsay had known for more than a year that the Board did not have jurisdiction to deal with issues related to RGI calculations. Mr. Lindsay filed his own complaint with the Board in 2021. Mr. Lindsay claimed Ecuhome was harassing him and interfering with his reasonable enjoyment of his unit. Among several issued raised in his application, Mr. Lindsay argued that Ecuhome had increased his rent in violation of the province wide rent freeze during COVID-19 and was harassing him about rental arrears. The Board dismissed Mr. Lindsay’s application on April 7, 2022 – more than a year before the hearing on Ecuhome’s application to terminate Mr. Lindsay’s tenancy. The Board held that under s. 203 of the Residential Tenancies Act it “has no jurisdiction to intervene with the decision of the designated service managers under the [Housing Services Act] regarding the amount of geared-to-income rent payable under that Act.” The Board also noted that the Housing Services Act “provides tenants with an opportunity to challenge a decision respecting their RGI eligibility outside of the Board.”
[21] It was open to the Board to find Mr. Lindsay had not exercised reasonable diligence in relation to his concerns about the RGI calculations between April 7, 2022 when the Board dismissed his application and the April 28, 2023 hearing of Ecuhome’s application. In his record on this appeal, Mr. Lindsay filed a “Request for Review” form he submitted to the City of Toronto Housing Stabilities Services. That request was dated April 28, 2023 – the same day as the hearing before the Board. Mr. Lindsay also submitted evidence he had filed a complaint to the Auditor General’s Office. That complaint was also initiated on April 28, 2023. It is not clear if Mr. Lindsay filed these two documents during the April 28, 2023 hearing or if they constitute fresh evidence on his appeal. Either way, they do not undermine the Board’s finding that Mr. Lindsay had not acted with reasonable diligence before April 28, 2023 to address his concerns about the RGI calculations in the proper forum.
[22] The Board did not err in denying Mr. Lindsay an adjournment.
D. Rent increases
[23] Under the Residential Tenancies Act, a landlord can only increase rent once a year and only in accordance with the guideline determined annually by the Minister. Mr. Lindsay argued that Ecuhome illegally increased his rent during the province-wide rent freeze in 2020 and 2021. He also argued that Ecuhome increased his rent by more than the prescribed amount. The Board considered and rejected both arguments.
[24] The Board accepted the evidence adduced by Ecuhome that any changes in Mr. Lindsay’s rent were caused “solely from recalculations made under the RGI scheme.” The Board, therefore, found the changes to Mr. Lindsay’s rent were lawful. The Board made no error in making those findings. The portion Mr. Lindsay was required to pay towards his rent did fluctuate over time. In December 2020, his portion increased from $145 a month to $682 a month based on the RGI calculation. In March 2021, his portion reverted to $145 a month based on new income information. In January 2022, he was required to pay $593 of the monthly market rent, which remained at $682. On December 1, 2022, Mr. Lindsay’s portion of the rent went down to $470 a month even though the market rent increased to $690 a month. As of September 1, 2023, Mr. Lindsay was again required to pay $145 towards the market rent.
[25] It is not accurate to say that Mr. Lindsay’s rent has increased. The market rent was $682 during the province-wide rental freeze in 2020 and 2021. The market rent for his unit increased to $690 in December 2022. There is no suggestion the increase of $8 a month is beyond the guidelines amount. What changed is the amount he is required to contribute as his RGI subsidy changed based on his income.
[26] The Board made no error in finding the changes in Mr. Lindsay’s payments towards the rent were caused by changes in the RGI calculations (which are beyond the Board’s jurisdiction) and were lawful.
E. Arrears Calculation
[27] Having found it had no jurisdiction to decide issues related to the RGI subsidy calculation, the Board accepted the evidence presented by Ecuhome about the arrears Mr. Lindsay owes. Ecuhome presented evidence that Mr. Lindsay only made one payment of $580 towards his rent in 2022 and has not paid any rent in 2023. Mr. Lindsay admitted the evidence about his rent payments was accurate. He explained to the Board that the $580 payment in August 2022 was for four months of rent at a rate of $145 a month.
[28] The Board found that Mr. Lindsay owed $8,239 in arrears. That is a factual finding which cannot be appealed under the Residential Tenancies Act.
[29] Even if Mr. Lindsay had filed a judicial review of the Board’s decision, I would not interfere with the Board’s findings of fact about the arrears owing.[^1] Regardless of the issues with the RGI calculation, Mr. Lindsay admitted he has not even been paying the amount he thinks he owes ($145/month). At the time of the hearing, he had only paid $580 in rent since the start of 2022. It was open to the Board to accept the evidence presented by Ecuhome about the arrears, and the Board’s finding that Mr. Lindsay owed $8,239 was reasonable.
F. Conclusion and costs
[30] Mr. Lindsay’s appeal is dismissed.
[31] Ecuhome sought $3,848.33 in partial indemnity costs. As the successful party, Ecuhome is presumptively entitled to costs on this appeal. However, I must also consider Mr. Lindsay’s ability to pay. Given Mr. Lindsay’s very limited resources, I find it would be just and appropriate to require Mr. Lindsay to pay Ecuhome $1,000 in costs on this appeal (inclusive of HST).
Davies J.
Date: July 2, 2024
CITATION: Lindsay v. Ecuhome Corporation, 2024 ONSC 3749
DIVISIONAL COURT FILE NO.: 434/23
DATE: 20240702
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARK LINDSAY
Appellant
– and –
Ecuhome corporation
Respondent
REASONS FOR DECISION
DAVIES J.
Released: July 2, 2024
[^1]: Mr. Lindsay originally filed an appeal and a notice of application for judicial review in relation to three Board decisions: (1) the decision dated April 7, 2022 dismissing Mr. Lindsay’s application for an order that Ecuhome had harassed him and interfered with his reasonable enjoyment of his rental unit; (2) the decision dated May 18, 2022 dismissing Mr. Lindsay’s request for a review of the April 7, 2022 decision; and (3) the decision dated April 28, 2023 allowing Ecuhome’s application to terminate Mr. Lindsay’s tenancy. His appeal/application was out of time in respect of all three decisions. Justice Matheson granted Mr. Lindsay an extension of time only in relation to the April 28, 2023 decision terminating his tenancy. Mr. Lindsay filed an amended Notice of Appeal in relation to the May 18, 2023 decision. He did not file an amended notice of application for judicial review.