CITATION: Dannis v. Roele, 2024 ONSC 3862
COURT FILE NO.: DC-23-00000036-0000
DATE: 2024/07/08
DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CAROLANN DANNIS and CURT SEXTON, Appellants
AND:
MARGARETHA ROELE and BEN MINBASHIAN, Respondents
BEFORE: Justice I.F. Leach
COUNSEL: The Appellants self-representing
Kenneth J. Wakely, for the Respondents
HEARD: March 21, 2024
ENDORSEMENT
[1] Before me, in this Divisional Court appeal proceeding, is a motion brought by the respondents to have the appeal herein quashed on the basis that it is manifestly devoid of merit and/or an abuse of process.
Background
[2] By way of further background, summarized here only by way of overview:
a. The appellants herein are tenants who, for approximately 24 years now, have occupied a rental unit located at a specified address on Talbot Street North in the Town of Essex, Ontario. The unit in question is situated within a small residential complex of such units purchased in 2017 by the respondents; i.e., the appellants’ landlords. In the course of these reasons, I therefore occasionally will also refer to the appellants as “tenants” and the respondents as “landlords”.
b. The tenancy relationship between the parties includes a history of various notices delivered by the parties, and some corresponding applications made by the parties to Ontario’s Landlord and Tenant Board (or “LTB”), pursuant to provisions of the Residential Tenancies Act, 2006, S.O. 2006, c.17; i.e., “the RTA”. Without limiting the generality of the foregoing:
i. During their ownership of the residential complex, the landlords served the tenants with a number of notices, which included the following:
- In August of 2019, the landlords served a voidable notice of termination alleging that the tenants were interfering with reasonable enjoyment of the complex by other residents through:
a. the tenants’ erection of a structure that was said to be restricting access to a common backyard area; and
b. the tenants’ unauthorized installation of a camera, mounted on their gazebo, which was said to look onto another tenant’s property, thereby invading his privacy.
In July of 2020, the landlords served another voidable notice of termination alleging that the tenants, through their unauthorized installation of an exterior floodlight, were interfering with another tenant’s reasonable enjoyment of the residential complex.
In January of 2021, the landlords served further notices alleging that the tenants:
a. had installed another unauthorized camera in front of their rental unit, thereby once again interfering with reasonable enjoyment of the residential complex by other tenants; and
b. had harassed and intimidated another tenant, causing him to move out of the residential complex.
- In March of 2022, the landlords applied for an order to terminate the relevant tenancy, and evict the tenants from the relevant rental unit, because the landlords were said to require, in good faith, possession of the rental unit for the purpose of occupying it as a residence for at least one year. The notice and application in that regard were said to be based on a recent breakdown of the landlords’ marriage, (documented by a formal separation agreement), and the desire of the landlord husband to live in the rental unit occupied by the tenants; i.e., as a means of ending the ongoing difficulty, challenges and duress associated with the landlords having to continue living separate and apart from each other within the same residence.
ii. During the same period:
The tenants applied for a reduction of the rent charged for the rental unit, based on an alleged discontinuance in services or facilities provided in respect of the rental unit or residential complex. The application was based on alleged discontinuation of the tenants’ parking spot.
The tenants also applied for an order determining that the landlords had harassed, obstructed, coerced, threatened and/or interfered with the tenants and their reasonable enjoyment of their rental unit in various alleged ways. Considerations relied upon by the tenants in that regard included:
a. alleged harassment of the tenants through unequal enforcement of new parking rules at the residential complex, and through sending the tenants a photo of their vehicle with an insinuation the tenants did not know how to park;
b. service of the aforesaid notices of termination, which were said to have been meritless and based on falsehoods;
c. alleged failure of the landlords to properly address a shooting incident at the residential complex; and
d. alleged failure of the landlords to properly address a death threat the tenants were said to have received from a neighbouring tenant.
c. Hearing of the application brought by the landlords for an order terminating the tenancy and evicting the tenants, based on the landlords’ stated good faith requirement of the rental unit for residential occupation for a period of at least one year, originally was scheduled for hearing by the LTB on September 21, 2022. However, the tenants then requested adjournment of that hearing to allow for scheduling and simultaneous hearing of the tenants’ application alleging harassment and other interference by the landlords. In the result, Board Member Peter Nicholson was satisfied that the parties’ applications, while based on different grounds, gave rise to the possibility of evidence duplication and potentially inconsistent findings if they were heard and decided separately. An order therefore was made, (and formally issued on October 25, 2022), directing that the landlords’ application was to be adjourned, rescheduled and “combined to be heard at the same time” as the tenants’ application.
d. The matter moved forward to a substantive videoconference hearing before the LTB on March 15 and May 5, 2023,[^1] at which time the LTB heard:
i. applications brought by the landlords for orders terminating the tenancy and evicting the tenants based on:
the tenants’ alleged substantial interference with another tenant’s reasonable enjoyment of the residential complex or the landlords’ right, privilege and interest; and
the landlords’ alleged good faith required possession of the relevant rental unit for the purpose of landlord residential occupation for at least one year; and
ii. applications brought by the tenant for a reduction in rent and an order determining that the landlords had harassed, obstructed, coerced, threatened, or interfered with the tenants.
e. On July 10, 2023, an LTB order was issued by Board Member Kovats, (pursuant to the RTA and section 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, s.S.22, or “the SPPA”), terminating the tenancy arrangement between the appellants and the respondents, requiring the appellants to vacate the relevant rental unit, and making further provision for enforcement of the appellants’ eviction if and as necessary. The reasons provided with the order are approximately eight pages long. I have reviewed and carefully considered them in their entirety and will have more to say about them later in this endorsement. For now, I note the following in that regard:
i. Board Member Kovats confirmed that the tenants had been able to share their evidence during the hearing by way of screen sharing, but that copies of that evidence, missing from the Board’s file at the time of hearing, had since been received and reviewed prior to Board Member Kovats making her decision and writing her reasons.
ii. The tenants’ application for a rent reduction, based on the landlords allegedly having discontinued use of the tenants’ parking spot, was dismissed for not having been filed within the applicable limitation period. In particular, subsection 130(5) of the RTA provides that no application for a rent reduction based on discontinuance of a service or facility can be made more than one year after the relevant discontinuance. The landlords were said to have discontinued use of the tenants’ parking spot on January 25, 2020, but the tenants did not file their application for a corresponding reduction in rent until July 15, 2021.
iii. The tenants’ application for a determination that the landlords had harassed or otherwise interfered with the tenants also was dismissed, after Board Member Kovats found on a balance of probabilities that the actions of the landlords relied upon by the tenants did not constitute harassment. Her reasons in that regard included the following:
Numerous matters relied upon by the tenants in that regard, (including communications and photographs sent by the landlords in relation to the tenants’ parking, and earlier notices of termination), fell outside the applicable one-year limitation period, established by s.29(2) of the RTA, for the bringing of applications regarding alleged harassment.
The various notices from the landlords were served in response to complaints made by other neighbouring tenants in the residential complex, only after the landlords had made inquiries and found evidence they felt sufficient to warrant further action, and with a view to fulfilling the landlords’ duty, as landlords, to ensure that none of their tenants’ reasonable enjoyment of the complex was substantially interfered with. Nor were all of the notices served by the landlords followed by corresponding applications to the LTB for relief. As Board Member Kovats put it, the landlords “had to determine how best to navigate the various complaints they were receiving from tenants and choose to act on the claims they felt were substantiated.” In doing so, the landlords were found to have been exercising their rights and fulfilling their duties under the RTA.
While some of the statements made in the notices were found to be inaccurate, (e.g., insofar as the structure built by the tenants did not fully block the relevant walkway, and an object eventually identified as a floodlight initially and mistakenly was described as a camera), Board Member Kovats did not consider the statements to have been unreasonable in the circumstances, or statements rising to the level of harassment.
Board Member Kovats found that the landlords actually had taken reasonable steps to address allegations of criminal activity. In particular:
a. in response to reports by the tenants that another tenant had fired shots from his window via an airsoft gun, the landlords contacted the police repeatedly, were advised that the police had been called to the property a number of times but were not laying charges, and thereafter installed a security camera for the benefit of all residents of the complex; and
b. in response to reports by the tenants that they had received a death threat from another specified tenants, the landlords spoke with the tenant in question who denied the allegation, after which the landlords told the tenants to file a report with the police, which once again did not lead to the laying of any criminal charges.
iv. Board Member Kovats dismissed the landlords’ application for termination of the tenancy and eviction of the tenants based on their alleged substantial interference with another tenant’s reasonable enjoyment of the residential complex or the landlords’ lawful right, privilege or interest. In particular:
while the tenants had installed an exterior floodlight without authorization, and it was not removed within the seven-day voiding period following delivery of the landlords’ notice in that regard, the relevant floodlight nevertheless had been removed;
while the tenants had indeed installed a camera at the front of their residence without authorization, it was not found to be a device constituting any “substantial interference” with others in the sense required, insofar as it was only a small “doorbell camera” attached to the front door of the tenants’ unit, with an uncertain range, (but showing at most only what was directly outside that door, in an outdoor public area), and without any definite proof that the device was capable of recording voices; and
insofar as the underlying notice delivered by the landlords also had alleged that the tenants caused another tenant to vacate the complex through “harassment” and “intimidation”, the notice was found to be deficient as it failed to include sufficient reasons, details and particulars of the relevant conduct in which the tenants were said to have engaged, as required by this court’s decision in Ball v. Metro Capital Property, [2002] O.J. No. 5931.
v. Board Member Kovats nevertheless granted the landlords’ application for termination of the tenancy and eviction of the tenants based on the landlords’ claim that vacant possession of the relevant rental unit was required for intended residential occupation by the landlord husband for a period of at least one year. In that regard:
Reference was made to supporting evidence presented by the landlords in that regard, including testimony of their having separated in February of 2022, of their having signed a presented separation agreement confirming that they intended to start living separate and apart as of May 8, 2022, and of the landlord husband’s specific desire to live in the rental unit occupied by the tenants, (rather than other unit in the residential complex), because it was the most private and secluded unit in the residential complex and therefore suited his needs.
Reference was made to the tenants’ claims that there was no good faith intention of the landlord husband to reside in their rental unit; that the landlords might be seeking to rent the unit for more money than the “below market” level of rent being paid by the tenants; that the landlord husband should move instead to another unit in the residential complex that had been recently renovated; and that the true motivation for the landlords’ application was a desire to see the tenants gone because of the earlier disputes between the tenants, other tenants and the landlords.
Expressly applying a balance of probabilities standard for making her determination, Board Member Kovats found that the landlord husband, in good faith, required possession of the relevant rental unit for the purpose of his own residential occupation there for a period of at least one year. The numerous reasons provided for that conclusion included the following:
a. The landlord husband’s testimony indicating his intentions in that regard was found to be credible, insofar as it had been offered in a forthright manner and had “withstood cross-examination well”.
b. So too was the testimony of both landlords, regarding the fact of their separation, (also supported by their signed separation agreement), and that separation being the reason why the landlord husband now required somewhere new to live.
c. The mere fact that a unit could be rented for a higher rent was true of any such unit in a rental market with rising rents. Absent some evidence that the landlords’ true intention was to re-rent the unit, (evidence found to be missing in the case at hand), such market considerations alone were insufficient to satisfy Board Member Kovats that the stated intention of the landlords was insincere.
d. Arguments that the landlord husband’s intentions were unreasonable, (i.e., that he should choose another unit to occupy, despite his accepted evidence that he did not require a renovated unit and specifically wanted the unit currently occupied by the tenants because of the privacy it offers), were not relevant to the question to be decided. As emphasized by this court’s decision in Feeney v. Noble, [1994] O.J. No. 20479 (Div.Ct.), at paragraph 5, the proper focus is on whether the landlord has a genuine intention to occupy the rental unit, and not the reasonableness of the landlord’s proposal.
e. Past conflict between the parties did not satisfy Board Member Kovats that the landlords were lying about their stated intentions to have the landlord husband reside in the relevant rental unit. In that regard, it was emphasized that the landlords had put forth evidence of their intentions in that regard that was found to be credible, that the past conflict was significantly dated, (e.g., insofar as the landlords’ last notice in that regard had been served over a year before the landlords served their notice requiring the unit for the landlord husband’s occupation), and that the landlords had established their marriage breakdown and separation as a significant intervening event. Having regard to all the circumstances, Board Member Kovats found it was “more likely than not”, (i.e., on a balance of probabilities), that the landlord husband will move into the relevant rental unit “because he separated from his wife and needs somewhere to live”, rather than the application in that regard “being a guise to remove the tenants”.
f. For similar reasons, it was found, in relation to s.83(3)(c) of the RTA, (which requires the LTB to refuse granting of a landlord’s application when satisfied that the reason for the application being brought is that a tenant has attempted to secure or enforce his or her legal rights), that the reason for the application was the landlord husband’s intention to occupy the rental unit and not retaliation because the tenants had exercised their legal rights. The dated nature of the past conflict between the parties, and the timing of the landlord’s relevant notice indicating required possession of the unit as an intended personal residence, (served in close proximity to the marriage breakdown and separation of the landlords), favoured that conclusion. Moreover, as emphasized in MacNeil v. 976445 Ontario Ltd., [2005] O.J. No. 6362 (Div.Ct.), leave to appeal refused 2005 CarswellOnt 10177, and Puterbough v. Canada (Public Works and Government Services), [2007] O.J. No. 748 (Div.Ct.), dismissal of a landlord’s application pursuant to s.83(3)(c) requires the LTB to be satisfied that a tenant exercise of legal rights was the sole or primary reason why the landlord’s application had been brought. That was not the case here, for the reasons provided by Board Member Kovats and noted above.
f. On August 8, 2023, the appellants requested a review of the LTB order issued by Board Member Kovats on July 10, 2023. In doing so, the appellants alleged that there were serious errors made in the relation to that order and the underlying proceedings which led to it, including an allegation that the appellants were not reasonably able to participate in those proceedings.
g. On August 14, 2023, following a preliminary review of the LTB order issued on July 10, 2023, Board Member Harry Cho issued a further LTB order, (pursuant to the RTA and section 21.2 of the SPPA), denying the appellants’ request for a full review of that earlier LTB order and confirming that earlier order, which therefore remained unchanged. The reasons delivered with that order are just over two pages long, and I have reviewed and considered them in their entirety as well. For present purposes, however, I note the following:
i. It was emphasized that there was sufficient evidence before Board Member Kovats to warrant her findings that the landlord husband in good faith required the rental unit as his new residence; e.g., having regard to the landlords’ evidence that they were separating, that the landlord husband required somewhere new to live, and that the qualities of the rental unit occupied by the tenants, (including the superior privacy it offered), made it suitable for the husband’s own residential use.
ii. Insofar as the tenants relied on Fava v. Harrison, 2014 ONSC 3352 (Div.Ct.), that case was readily distinguishable on its facts, insofar as the credibility of the landlord bringing a similar application, (i.e., requiring possession of a rental unit for supposed personal use), was undermined in that case by evidence from the other landlord indicating that the unit in question was unsafe.
iii. A review of the recordings of the hearings that took place before Board Member Kovats made it clear that allegations of procedural unfairness made by the tenants, (e.g., suggesting that they had been forced to “condense” their evidence and/or were prevented from introducing evidence at the hearing), were inconsistent with the evidence and simply inaccurate. The tenants had been given the opportunity to present and discuss each package of their information, and to present and identify any document, photograph or other thing they considered relevant to the proceedings. They also were clearly aware of the issues to be determined and had exercised their rights to be heard on those issues, as well as their right to be represented.
iv. As the tenants had not shown the existence of any serious error made by Board Member Kovats, or that they were not reasonably able to participate in the proceedings, the request for a more formal review of the order made by Board Member Kovats was denied.
h. On or about August 31, 2023, the appellants then delivered their notice of appeal formally commencing this proceeding; i.e., an appeal to the Divisional Court, seeking to set aside the aforesaid LTB orders. Pursuant to Rule 63.01(3)(a) of the Rules of Civil Procedure, delivery of that notice of appeal automatically stayed, until disposition of the appeal, provisions of the aforesaid LTB orders terminating the relevant tenancy arrangement between the parties and providing for the eviction of the appellants.
i. On or about December 15, 2023, the respondents brought their motion herein, seeking an order quashing the appeal.
j. As the appeal had not progressed in a timely way, (e.g., insofar as there had been no finalization of a proposed timetable in October of 2023 as expected, and the appellants were said to have experienced challenges in obtaining audio recordings of the underlying proceedings before the LTB), the matter was the subject of a number of case management endorsements made by Justice Tranquilli, in her capacity as the Local Administrative Justice for the Divisional Court in the Southwest Region. In her endorsement of January 3, 2024, Justice Tranquilli set a timetable in relation to the respondents’ motion to quash the appeal; a timetable that included directions whereby the respondents were to deliver all of their remaining motion material by February 23, 2023, the appellants were to deliver all of their responding motion material by March 11, 2023, and the motion was scheduled to be heard by way of a special appointment hearing scheduled for March 21, 2024. The parties were expressly reminded that failure to abide by that timetable could result in the appeal being dismissed for delay.
k. On March 21, 2024, the motion then came before me in my capacity as a judge of the Divisional Court pursuant to s.18(3) of the Court of Justice Act, R.S.O. 1990, c.43, and pursuant to the ability of a single judge of the Divisional Court to hear and determine a motion in the Divisional Court pursuant to s.21(3) of the same legislation. By that time, the respondents had served and filed all of their motion material albeit a few days late; by February 26, 2024. The appellants had served and filed their responding motion material only the day before; i.e., on March 20, 2024. However, counsel for the appellants was content to have me review and consider that responding motion material notwithstanding its late service, having regard to his own more modest delay and the desire of his clients to move the matter forward.
General principles
[3] Relevant general principles include the following:
a. A court to which an appeal is taken may, in a proper case and on motion, quash the appeal.[^2]
b. Grounds for quashing an appeal include the appeal being manifestly devoid of merit, and/or an abuse of process seeking solely to delay.[^3]
c. Any person affected by an order of the LTB may appeal the order to the Divisional Court, but “only on a question of law”.[^4]
d. “Questions of law” are questions about what the correct legal test is. They are to be distinguished from “questions of fact”, which are questions about what actually took place between the parties, and “questions of mixed fact and law” which are questions about whether facts satisfy the legal tests.[^5]
e. “Questions of law” also are confined to a “narrow band” on the spectrum covering questions of fact, questions of mixed fact and law, and questions of law.[^6]
f. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal to the Divisional Court from an order of the LTB where the appeal does not raise a question of law, but questions of fact and/or questions of mixed fact and law, as such an appeal falls outside of the Divisional Court’s specified and limited jurisdiction in relation to appeals from LTB orders.[^7]
Assessment
[4] With the above background and general principles in mind, I turn to application of the latter to the particular circumstances of this case.
[5] Having done so, I find the appeal herein to be manifestly devoid of merit, insofar as it essentially raises various questions of fact and/or questions of mixed fact and law; i.e., rather than any genuine question or questions of law alone falling within the Divisional Court’s limited appellate jurisdiction relating to LTB orders. Without limiting the generality of the foregoing:
a. The appellants allege that the LTB adjudicator “erred in law in failing to apply the burden of proof correctly”, insofar as there was said to be no “clear, cogent and convincing” evidence led by the landlords capable of supporting a conclusion on a balance of probabilities that the landlord husband in good faith required possession of the rental unit for the purpose of residential occupation for a period of at least one year. In my view, nothing in that contention focuses on a question of law alone; i.e., a question about what the relevant “correct legal test” was, is or should be. In particular:
i. There is no suggestion that the adjudicator was not correctly focused on whether the landlord husband in good faith required possession of the rental unit for the purpose of residential occupation of the relevant rental unit for a period of at least one year, and no suggestion that the adjudicator made any error in correctly identifying, (expressly and repeatedly), the applicable standard of proof to be met in that regard; i.e., proof on a balance of probabilities.
ii. The appellants instead take issue with the determinations made by the adjudicator through application of that standard of proof, including the adjudicator’s assessment of the factual evidence in that regard, (e.g., as to whether it was credible and persuasive), and whether it was sufficient to warrant the adjudicator’s conclusion.
iii. In doing so, the appellants essentially seek to have the Divisional Court review what essentially are questions of fact, (e.g., relating to what took place between the parties, and the true motive and intent of the landlords underlying their application), and/or questions of mixed fact and law, (relating to whether the facts established via evidence presented by the landlord and accepted by the adjudicator were sufficient to meet the test for making an order pursuant to section 48 of the RTA), which fall outside the appellate jurisdiction conferred on the Divisional Court pursuant to s.210(1) of the RTA.
b. The appellants allege that “the adjudicator’s order and reasons are deficient as there is nothing in the Order and Reasons that reveals any analysis or reasons supporting the acceptance of the bald assertions of the landlords” or addressing the prior conflict between the parties in the period leading up to the landlords’ application. The appellants also repeatedly claim, in various ways, that the adjudicator erred by accepting evidence tendered by the landlords without requiring further corroboration and/or by not drawing adverse inferences from the landlords’ alleged failure to provide such corroboration. The appellants suggest in particular that such corroboration should have been required as a matter of fairness, as they found it difficult to challenge or refute the landlords’ evidence regarding their marriage breakdown, separation and corresponding need of the landlord husband to reside elsewhere. In my view, such complaints also reveal no discernible or meritorious question or questions of law alone. In particular:
i. For reasons emphasized by the Supreme Court of Canada in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, failure to deliver meaningful reasons for a decision, however brief, certainly may constitute an error of law sufficient to ground a proper appeal in appropriate cases. In my view, any suggestion that the LTB adjudicators failed to provide such reasons in relation to this matter is nevertheless clearly false and baseless. As noted above, detailed reasons were provided for the LTB’s orders, including meaningful reasons explaining why the adjudicator rejected the appellants’ contention that the landlords’ application was motivated by prior conflict between the parties rather than a bona fide intention of the landlord husband to occupy the premises. In my view, a review of the appellants’ notice of appeal makes it clear that the appellants simply disagree with those reasons.
ii. More specifically, the appellants suggest that the LTB adjudicator erred by not giving reasons for accepting what the appellants characterize as “bald allegations” and “feebly supported oral statements” of the landlords in the absence of corroborating evidence; i.e., by engaging in analysis characterized by the appellants as the adjudicator believing what the landlords said about their marriage breakdown, separation and husband’s need for a new residence simply because the landlords “said it and said it convincingly”. In my view, the appellants’ contentions in that regard are problematic and clearly devoid of merit for numerous reasons. Without limiting the generality of the foregoing:
While corroboration of oral witness testimony may be useful, there is no rule of evidence, procedural fairness or natural justice requiring such corroboration before oral witness testimony may be accepted by a trier; e.g., if the trier regards such evidence as credible and reliable, as the adjudicator did in this case. There accordingly was no need for the adjudicator to provide reasons for failure to apply a non-existent rule of evidence, and the adjudicator’s alleged “failure” in that regard does not give rise to any meritorious question of law.
Although there was no need for the landlords to present evidence corroborating their oral testimony, they arguably did so in any event; e.g., through presentation of evidence concerning their written separation agreement.
In my view, the appellants’ characterizations of the evidence presented by the landlords, (i.e., as “bald” allegations” and “feebly supported” oral statements), once again reveal that the true focus of such complaints is the adjudicator’s assessment of the evidence and her resulting factual determinations; i.e., questions of fact, rather than questions of law alone. Such matters accordingly do not fall within the appellate jurisdiction conferred on the Divisional Court pursuant to s.210(1) of the RTA.
c. The appellants contend that the adjudicator erred by failing to determine whether the reason offered by the landlords for requiring the rental unit “was a good enough reason to terminate a tenancy of 23 years”. In my view, that contention is also clearly devoid of merit. In particular:
i. The suggestion effectively seeks to rewrite and augment the relevant legislated test and threshold for granting the relief sought by the landlords; i.e., that “the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year”.[^8]
ii. As noted above, this court has emphasized, in Feeney v. Noble, supra, that the proper focus in relation to such applications is therefore on whether the landlord has a genuine intention to occupy the rental unit, and not the reasonableness of the landlord’s proposal. In my view, the appellants’ suggestion that the adjudicator had an obligation to assess whether the landlord’s reason for requiring possession of the rental unit was “good enough”, and erred in failing to do so, is entirely at odds with that authority.
d. For reasons similar to those already outlined above, in my view there is also clearly no merit to the appellants’ contention that the adjudicator erred by failing to consider whether the landlords might be intent on evicting the appellants through supposed reliance on their stated reasons before thereafter claiming that they had reconciled from their “purported separation” and renting the unit again to other tenants at a higher level of rent, and/or by failing to draw adverse inferences about the landlords’ intentions in that regard from the fact they had continued to reside within the same unit and co-operate with each other in relation to their application despite their indicated marriage breakdown and separation. Without limiting the generality of the foregoing:
i. In my view, the contention essentially alleges that the adjudicator failed to consider whether or not the landlords’ application was brought in good faith, which is clearly not accurate. As noted above, the adjudicator expressly focused on that issue, including the appellants’ contention that the landlords actually were intent on evicting the appellants through subterfuge, so that they could rent the unit again at a higher level of rent. For reasons provided by the adjudicator, she also accepted the evidence of the landlords regarding their marriage breakdown and separation, and the resulting need for the landlord husband to live elsewhere. The appellants simply disagree with the adjudicator’s factual determinations and conclusions in that regard, after her consideration of the presented evidence.
ii. In any event, such issues clearly focus on questions of fact and not questions of law alone. As such, they fall outside the ambit of the appellate jurisdiction conferred on the Divisional Court pursuant to s.210(1) of the RTA.
e. As for the appellants’ contention that they were denied procedural fairness because they were required to “spontaneously” adhere to a presentation format during the hearing with which they were not comfortable, and/or because their evidence was never received or considered by the adjudicator before making her decision, in my view that contention also is clearly devoid of merit. Without limiting the generality of the foregoing:
i. The reasons provided by Board Member Kovats and Board Member Cho make it clear that the underlying assertions being made by the appellants in that regard are simply inaccurate. In particular, as noted above:
The order issued by Board Member Kovats on March 28, 2023, emphasized to the appellants that they needed to be prepared to share their materials via Zoom, and direct the adjudicator to relevant portions of the evidence, when the hearing resumed.
Board Member Kovats also expressly indicated, in her reasons issued on July 10, 2023, that despite copies of the appellants’ evidence not being in the Board’s file at the time of the hearing, the appellants had been able to present that evidence to the Board via screen sharing during the hearing, and copies of the appellants’ evidence also had been received by the Board and reviewed by Board Member Kovats prior to the writing of her decision.
Board Member Cho, after reviewing recordings of the proceedings before Board Member Kovats, expressly indicated and confirmed, inter alia, that the appellants had not been required to condense their evidence, that there had been no interference with the appellants’ ability to introduce evidence, and that the appellants had been given the opportunity to present and discuss each package of information they had disclosed and filed with the board, as well as the opportunity to identify and discuss any document, photograph or thing they considered relevant to the proceedings.
ii. In my view, disputes about what happened during the underlying hearing, and whether what happened was sufficient to afford adequate procedural fairness to the appellants, at the very least raise questions of mixed fact and law rather than questions of law alone; i.e., questions focused exclusively on the correct legal test to be applied in relation to any such issues.
[6] As I have found the appeal to be devoid of merit, that is a sufficient basis on which to quash this appeal, and an order to quash the appeal therefore shall issue accordingly.
[7] It therefore is not strictly necessary for me to address the respondents’ alternative contention; i.e., that the appeal herein should be quashed on the basis of its being an abuse of process seeking solely to delay the appellants’ eviction from the relevant rental unit.
[8] I nevertheless will note my view that the material and submissions before me fell short of establishing such an abuse of process. Without limiting the generality of the foregoing:
a. There was nothing before me to suggest that the tenant, either before or during the proceedings before the LTB and this court, had failed to pay rent owed to the landlords during their ongoing occupation of the rental unit; i.e., one of the key indicia of a party trying to “game the system”, in order to secure the benefits of ongoing residential accommodation through intentional delay.
b. While there have been some notable delays attributable to the appellants, (e.g., through their failure to bring a prompt cross-application that might have facilitated the earlier scheduling of a simultaneous LTB hearing of the parties’ applications from the outset, their failure to ensure that the LTB had copies of their material in a timely way, and their failure to follow up promptly with efforts to secure desired audio recordings of the LTB hearings), it was my impression that such delays were attributable to lack of familiarity with applicable procedures rather than any intentional effort to postpone substantive outcomes.
c. More generally, while the appellants’ pursuit of this appeal may have been mistaken and/or misguided, (e.g., insofar as that pursuit appears to reflect lack of understanding concerning applicable rules of evidence, the limited nature of the Divisional Court’s appellate jurisdiction in relation to LTB orders, and/or what might properly be viewed as a question of law alone), it also seemed to me that the appellants’ belief in their position and desire for vindication was sincere and heartfelt, rather than feigned and/or strategic with a view to delay.
Disposition
[9] For the reasons outlined above, an order shall issue pursuant to s.134(3) of the Courts of Justice Act, supra, quashing the appeal herein.
[10] As that order formally disposes of the appeal, the automatic stay of the LTB orders terminating the tenancy arrangement between the parties and providing for the eviction of the appellants from the relevant rental unit, which resulted from the appellants’ delivery of their notice of appeal and the provisions of Rule 63.01(3)(a) of the Rules of Civil Procedure, has run its course and formally come to an end.
[11] For greater certainty, however, a further order shall issue, pursuant to Rule 63.01(5) of the Rules of Civil Procedure, indicating and confirming that the stay provided by Rule 63.01(3)(a) no longer applies.
[12] In my view, a further order also is necessary to address the underlying reality that the appellants now have to vacate their home of 25 years, and realistically will require time to make appropriate arrangements in that regard and secure a new residence. Authority to make such a further order is confirmed and/or conferred by:
a. subsections 134(1)(a) and (c) of the Courts of Justice Act, supra, which respectively provide that, unless otherwise provided, a court to which an appeal is taken may:
i. make any order or decision that ought to or could have been made by the court or tribunal appealed from; and/or
ii. make any other order or decision that is considered just; and
b. Rule 63.01(5) of the Rules of Civil Procedure, which provides that a judge of the court in which an appeal is taken may order that the stay provided by Rule 63.01(3)(a) does not apply “on such terms as are just”.
[13] In this case, the potential hardship and injustice of requiring the appellant tenants to vacate their longstanding home immediately were addressed by Board Member Kovats in the LTB order she issued on July 10, 2023. In that regard:
a. it was recognized that the landlords already had been waiting a significant period of time for the relevant rental unit to be vacated, (so that the landlord husband could take up his desired residence there), and therefore had asked that the tenants be evicted within 30 days;
b. it nevertheless also was recognized that the tenants had lived in the relevant rental unit for 23 years, (at the time the relevant LTB order was being made), in a location close to their various community supports, (including family members and their church), and would require time to find new living accommodations; and
c. having considered all the disclosed circumstances, pursuant to s.83(2) of the RTA, Board Member Kovats decided that it would not be unfair to postpone the tenants’ eviction until September 30, 2023.
[14] The review and appeal processes engaged by the appellants effectively have delayed, for almost precisely one year, finality in relation to the LTB order made on July 10, 2023; i.e., the original order terminating the underlying tenancy relationship and underlying tenancy relationship and directing eviction of the tenants from the relevant rental unit.
[15] In the circumstances, one might argue that the tenants accordingly have received an extra year in which to contemplate the very real possibility of having to vacate the relevant rental unit, and to make appropriate contingency plans; i.e., such that eviction of the tenants should take place in short order now that their appeal has been quashed.
[16] On the other hand, litigants arguably should not have to presuppose the outcome of disputes before the courts, especially in cases falling short of establishing a clear abuse of process rather than mistaken but sincerely held views. Suggesting otherwise inherently undermines the legitimacy of our justice system.
[17] In this particular case, the LTB considered the underlying facts and equities relating to the time the tenants fairly would require in order to vacate their longstanding home and relocate to another residence, following disposition of the underlying dispute. The LTB also clearly has substantial experience with such issues.
[18] On balance, I think it fair and appropriate to make a further order delaying the tenants’ eviction from the relevant unit for approximately the same period of time contemplated by the original underling LTB order made by Board Member Kovats on July 10, 2023.
[19] In particular, a further order shall issue whereby the provisions of the underlying LTB order made on July 10, 2023, requiring the tenants to move out of the rental unit on or before September 30, 2023, shall be stayed until September 30, 2024, by which time the tenants are required to have vacated the rental unit.
Costs
[20] Because my decision was reserved, the parties were unable to make cost submissions having regard to the substantive outcome of the respondents’ motion.
[21] When the matter was before me, I did make inquiries as to whether the parties had discussed and/or been able to reach any agreement in relation to costs; e.g., having regard to the largely binary possible outcomes of the respondents’ motion being dismissed or granted, and the common practice of parties to an appeal agreeing in advance on cost entitlement and quantification dependant on the substantive outcome.
[22] In response, however, I received indications that the parties had not really turned their mind to such matters. No bills of costs had been prepared or submitted, and neither side was inclined to accept the other’s informal indication of costs incurred without further examination and consideration of the requests being made in that regard.
[23] In the result, I indicated that my decision would include a timetable for the delivery of written cost submissions; i.e., a timetable to be applied if the parties were unable to reach an agreement regarding costs.
[24] Of course, it is always preferable that the parties resolve costs on their own, if only to avoid necessarily incurring further costs in that regard. The following timetable effectively allows for that possibility, while also providing a mechanism for addressing any cost issues the parties are unable to resolve on their own. In particular, if the parties are unable to settle their outstanding cost issues:
a. within two weeks of the release of this decision, the respondents may deliver written costs submissions limited to five pages in length, not including any Bill of Costs and offers to settle;
b. within two weeks of the aforesaid deadline for delivery of the respondents’ written cost submissions, the appellants may deliver written responding cost submissions limited to five pages in length, not including any Bill of Costs and offers to settle;
c. within one week of the aforesaid deadline for delivery of the appellants’ written responding cost submissions, the respondents may deliver written reply cost submissions, limited to two pages in length; and
d. if no written submissions regarding costs are delivered within four weeks of the release of this decision, the formal order disposing of this matter shall indicate that no costs were awarded.
Justice I.F. Leach
Date: July 8, 2024
[^1]: On the first day of hearing, (i.e., March 15, 2023), there was not enough time in the reserved block of time to conclude the hearing, and the tenants were said to have mailed evidence to the Board that was not in its file. As confirmed in a formal LTB order subsequently issued by Board Member Amanda Kovats on March 28, 2023, the matter accordingly was adjourned for continuation to a further return date to be set by the Board. The same order provided detailed directions to the tenants regarding the refiling, disclosure, organization and presentation of their evidence, including their need to be prepared to share materials over Zoom and direct the presiding adjudicator to relevant portions of their evidence. By the second day of hearing, (on May 5, 2023), copies of certain evidence said to have been mailed to the Board by the tenants on a specified date were still missing from the Board’s file, although the landlords and their counsel apparently had been provided with that material, and the tenants were able to present and make reference to that material during the hearing via screen sharing. Board Member Kovats nevertheless made a further order, (formally issued on May 23, 2023), directing the taking of further steps to ensure that copies of the tenants’ material would be provided to the Board for further review and filing.
[^2]: See subsection 134(3) of the Courts of Justice Act, supra.
[^3]: See Oatway v. Canada Wheat Board, 1945 43 (SCC), [1945] S.C.R. 204, at page 213; Lesyork Holdings Ltd. V. Munden Acres Ltd., [1976] O.J. No. 2225 (C.A.), at paragraph 18; Schmidt v. Toronto Dominion Bank, 1995 3502 (ON CA), [1995] O.J. No. 1604 (C.A.), at paragraph 6; and Solomon v. Levy, 2015 ONSC 2556, [2015] O.J. No. 2006 (Div.Ct.), at paragraph 34; Florsham v. Mason, 2015 ON 3147 (Div.Ct.), at paragraph 4; Regan v. Latimer, 2016 ON 4132 (Div.Ct.), at paragraph 25; and Meglis v. Lackan, 2020 ONSC 5049, at paragraphs 31 and 35.
[^4]: See subsection 210(1) of the RTA.
[^5]: See Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at paragraph 35.
[^6]: See White Spruce Apartments v. Deschenes, 2016 ON 5058, at paragraph 11.
[^7]: See Solomon v. Levy, supra, at paragraphs 33-34; White Spruce Apartments v. Deschenes, supra, at paragraph 12; Mahdieh v. Chen, 2019 ONSC 4218 (Div.Ct.), at paragraph 8; and Meglis v. Lackan, supra, at paragraph 23.
[^8]: See subsection 48(1)(a) of the RTA.