[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Songja Hasselsjo and Dernetro Holdings Ltd. c/o Effort Trust, 2024 ONSC 4010

DIVISIONAL COURT FILE NO.: DC-24-260

DATE: 2024/07/17

SUPERIOR COURT OF JUSTICE

ONTARIO

DIVISIONAL COURT

BETWEEN:

Songja Hasselsjo Appellant

– and –

Dernetro Holdings Ltd. c/o Effort Trust Respondent

Self-Represented

Rob L. Winterstein for the Respondent

HEARD: July 10, 2024

REASONS FOR DECISION MOTION TO DISMISS OR QUASH APPEAL AND LIFT STAY

Justice L. SHEARD

Overview

[1] The appellant, Songja Hasselsjo (the “Tenant”), has lived at #911-123 Charlton Avenue East, Hamilton, ON L8N 3W3 (the “Apartment”) for approximately 26 years. She is now approximately 80 years old, has suffered two strokes and uses a wheelchair. She also reports other health issues. Her husband lives elsewhere with their adult son.

[2] By Order of the Landlord and Tenant Board (the “LTB”) dated February 28, 2024, LTB File: LTB-L-023945-23 (the “LTB Order”), the Tenant was evicted from the Apartment. She filed an appeal to this court of the LTB Order, upon which, she was granted an automatic stay of the LTB Order.

[3] The respondent, Dernetro Holdings Ltd. c/o Effort Trust (the “Landlord”), seeks to quash or dismiss the Tenant’s appeal pursuant to s.134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) and r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (the “Rules”). As additional and/or alternative relief, the Landlord seeks an order under r. 63.01(5) of the Rules and s.134(2) of the CJA lifting the stay of the LTB Order.

[4] If successful on this motion, the Landlord also seeks an order directing the Court Enforcement Office (the Sheriff) to deliver vacant possession to the Landlord of the Apartment. The Landlord also seeks its costs of the appeal and motion.

Chronology of Events

[5] To better understand the decision made by this court, set out below is a chronology of events pre-dating this hearing:

April 19, 2022:

E. Schafranek, Inspector under s.19(1) of the Fire Protection and Prevention Act, 1997[^1] (“FPPA”) inspected the Apartment.

April 26, 2022:

Based on his inspection, Inspector Schafranek issued Inspection Order No. 16315 (the “FPPA Order”) requiring the Tenant to:

a) Provide and maintain a clear aisle width of at least 36 inches from every room to the Apartment entry door;

b) Remove combustible materials to provide and maintain a minimum clearance of 36 inches from the stove, electric baseboard heaters, electrical wall outlets (plugs) and any other sources of heat; and

c) Reduce the quantity of stored combustible material that has accumulated inside the Apartment to a height of not more than 36 inches. Storage piles to be arranged in an orderly fashion and stabilized so that they will not fall into and impede the required means of egress.

Pursuant to its terms, both the Tenant and the Landlord were responsible for compliance with the FPPA Order. If there was no compliance, either could be guilty of an offence under s.30 of the FPPA, and subject to a fine up to $20,000 for each day during which non-compliance continued.

June 8, 2022:

Inspector Schafranek re-attended the Apartment to check on its status and concluded that there had not been compliance with the FPPA Order.

September 29, 2022:

The Tenant’s appeal of the FPPA Order was heard by the Fire Safety Commission (the “Commission”). The issue before the Commission was whether the actions set out in the FPPA Order were necessary to ensure fire safety. The Tenant was self-represented. The respondent, Hamilton Fire Department (“HFD”), was represented by counsel.

December 16, 2022:

The Commission confirmed the FPPA Order, finding that the actions ordered by the HFD were necessary to ensure fire safety in the Tenant’s building. Time for compliance was extended to January 17, 2023, 30 days following the release of the Commission’s decision.

January 1, 2023:

The Tenant appeals the Decision of the Commission to the Divisional Court (File #DC-23-176). In her Notice of Appeal, the Tenant asserts that the Commission made the following errors:

(a) Material facts were obtained illegally by Inspector Schafranek who, she alleges, entered the Apartment without notice;

(b) New evidence existed to support the Tenant’s assertion that Inspector Schafranek was trespassing in her Apartment; and

(c) There was a “serious misapprehension of the evidence” by the Commission.[^2]

January 19, 2023:

Inspector Schafranek attended the Apartment to determine whether there had been compliance with the FPPA Order, the Ontario Fire Code, and the decision of the Commission. He was denied access to the Apartment by the Tenant.

February 6, 2023:

The Landlord mailed the Tenant a Notice to Terminate the Tenancy (the “N5”) which stated, in part, that the Tenant had seven days to stop the activities or correct the behaviour set out at Schedule “A” to the N5. Schedule “A” provided, in part, that the Tenant was substantially interfering with the lawful right and interest of the Landlord by having an excessive accumulation of items in the Apartment which posed a fire and life safety risk for the Tenant, other residents of the residential complex and emergency personal in the event of a fire; and denying the Landlord and the fire inspector access to the Apartment for the purpose of its inspection. The N5 was mailed to the Tenant[^3].

February 14, 2023:

Inspector Schafranek was granted access to the Apartment by the Tenant. He noted that the conditions in the Apartment continued to present fire and life safety concerns and that the Tenant had not complied with the FPPA Order.

March 21, 2023:

The Landlord filed an L2 Application with the LTB pursuant to which, it sought an order terminating the Tenant’s tenancy and evicting the Tenant.

December 5, 2023, and January 30, 2024:

An LTB hearing was conducted by video conference. In attendance were the Landlord’s agent, its legal representative and the Tenant, who was self-represented. The Landlord called Inspector Schafranek as a witness. The Tenant called three doctors as witnesses: Dr. D. Sahlas, Dr. M. Rathbone, and Dr. D. Feloiu. The Tenant had also arranged for the Landlord’s former property manager to attend but his testimony was not received as his employment with the Landlord had ended in September 2021. The LTB’s decision was issued on February 28, 2024 (see below).

January 8, 2024:

The Landlord appealed the FPPA Order to the Commission, which was heard this day. On its appeal, the Landlord did not dispute that the actions required by the FPPA Order were necessary but sought an extension of time to comply with the FPPA Order, while it explored different avenues of facilitating or compelling compliance by the Tenant.

February 28, 2024:

On this date, the LTB issued the LTB Order terminating the Tenant’s tenancy and ordering her to vacate the Apartment by April 30, 2024. The Landlord was authorized to enforce the LTB eviction order through the Sheriff on May 1, 2024.

March 7, 2024:

The Commission dismissed the Landlord’s appeal seeking an extension of time to comply with the FPPA Order, noting that the Landlord had already sought and been granted an extension of time to July 2023.

Note: Paragraph 8 of the Commission’s decision sets out a brief chronology of the steps taken by the Landlord to try and comply with the Order, including the following:

(i) May 2022: The Landlord’s property manager met with the Tenant to review the FPPA Order and offered to assist the Tenant to move the materials into storage;

(ii) February 2023: The Landlord confirmed that the Tenant had not removed the combustible materials in the Apartment and served an N5 on the Tenant, allowing her seven days to remedy the conditions;

(iii) March 2023: The Landlord filed an application with the LTB to terminate the tenancy after the Tenant remained non-compliant. The Landlord requested an expedited hearing which began in December 2023, and was adjourned, at the Tenant’s request, to January 2024;

(iv) September 2023: So as to reduce to the combustible load in the Apartment, the Landlord wrote to the Tenant offering to arrange for and pay the cost of a refuse bin and disposal fee and to pay the cost of transporting the Tenant’s property to an offsite storage unit.

The Commission recognized the efforts taken by the Landlord to comply with the FPPA Order but refused the Landlord’s request for an extension noting that the Landlord had had over 400 days to comply with it.

The Commission accepted the submissions of the HFD that a further extension of time to comply with the FPPA Order would be problematic “given the existing fire hazard posed by the combustible materials not only for the Tenant but also for the residents of the other 239 apartments, as well as for first responders” (at para 15.).

March 4, 2024:

The Tenant files a Notice of Appeal to this court, appealing the LTB Order.

April 17, 2024:

The Landlord brings this motion.

April 29, 2024:

A Case Conference was held by me as the Administrative Judge of the Divisional Court in Central South Region. Pursuant to the Order made at the case conference, among other things: i) the Tenant was required to perfect her appeal within 60 days of April 29, 2024: i.e. by Friday June 28, 2024; and, ii) the Landlord’s motion to quash the appeal and/or lift the stay was adjourned to July 10, 2024 for a two-hour hearing.

The parties were permitted to file updated materials in accordance with the timelines set out in the Central South Notice to Profession and the hearing was to be a hybrid hearing, which accommodated Tenant’s request to appear in person on the motion.

July 10, 2024:

The Landlord’s motion was heard. As of that date, the Tenant had not perfected her appeal, asserting that she had not been allowed to file her materials because she sought to file them “a couple of days” beyond the deadline set out in the Order made at the April 29, 2024 Case Conference.

Legal Principles

[6] Pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c.17, an appeal from a decision of the LTB lies to the Divisional Court but only on a question of law.

[7] Pursuant to s.134(3) of the CJA, on motion a court to which an appeal is taken, in the proper case, may quash the appeal.

[8] On this motion, the Landlord asks that the appeal be quashed or dismissed on the basis that it is devoid of merit and does not raise an issue of law. As stated by Ryan Bell J. in Maynard v. Kerr, 2022 ONSC 4259, at paragraphs 16 and 17:

[16] The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank. 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 from an order of the Board where the appeal does not raise a question of law: Meglis v. Lackan.

[17] In Canada (Director of Investigation & Research) v. Southam Inc., the Supreme Court of Canada described the difference between a question of law and a question of fact:

Briefly stated, questions of law are questions about what the correct legal test is; questions of facts 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.

(Citations omitted.)

[9] The Landlord submits that the grounds set out in the Tenant’s Notice of Appeal do not raise any questions of law and are either questions of pure fact or questions of mixed fact and law.

[10] I agree.

[11] The grounds set out by the Tenant are found at paragraph 13 of the Notice of Appeal, which reads, verbatim, as follows:

13. The Board member seriously erred by

(a) Fact material 5 sets dated June 12, 2023, June 19, 2023, June 24, 2023, and July 6, 2023 and October 16, 2023 with photographs of February 14, 2023 with cassette tape and CD were clearly ignored very unreasonably

(b) Analysis were completely on misapprehension of the fact especially February 14, 2023 evidence

(c) Oral evidence of Schafranek charging the appellant on cassette or cd were not taken into consideration

(d) Intentionally very rude to wait summoned 3 doctors and one pastor for 2.5 hours were unreasonable

(e) Member Edu who made wrongful decision to evict old age senior, disabled with R Paralysis never paid rent late for over 26 years not taking consideration in Ontario Legislation s. 83 of the Residential Tenancies Act, 2006 s. 83, power of the Board were abused without review of section(2)(3).

(f) Member Edu who made wrongful decision without consideration of health impact violated all and every 6 fundamental principles of conduct has not complied with principles and strictly focused on to favour of Landlord’s lawyer hiding facts inconsistently dishonest side ignoring true facts of the tenant.

[12] I have considered the submissions made by the Landlord and the responding submissions by the Tenant and accept the Landlord’s submissions that none of the grounds set out in the Notice of Appeal identify or raise pure questions of law.

[13] The first three grounds relate to the facts found by the LTB and, in effect, are the Tenant’s submissions disagreeing with the conclusions reached by the LTB.

[14] The ground identified at 13(d) is not relevant to the appeal and does not raise a question of law.

[15] The ground identified at 13(e) is that the LTB came to the wrong decision to evict the Tenant given her age and health.

[16] While acknowledging that on this motion, this court cannot be asked to determine the merits of the appeal, the Landlord urged the court to note that at paras. 21 to 30 of its decision, the LTB had considered the circumstances of the Tenant as it was required to do under s. 83.

[17] I note that at para. 13(e) of the Notice of Appeal, the Tenant acknowledges that the LTB considered s.83 of the Residential Tenancies Act, 2006 but appears to disagree with the conclusions reached by the LTB on the facts. In my view, para. 13(e) does not raise a question of law, but, at best, a mixed question of fact and law, which is not a proper ground of appeal.

[18] Para. 13(f) also asserts that Member Edu of the LTB made a “wrongful decision” and favoured the Landlord’s lawyer while “ignoring true facts of the Tenant”. At best, this ground of appeal raises a question of mixed fact and law. In addition, both paras. 13(e) and 13(f) appear to be asking the appellate court to interfere with factual findings made by the LTB or to reweigh and reassess the evidence considered by the LTB, none of which falls within the role of the Divisional Court on an appeal from the LTB.

[19] In her oral submissions on this motion, the Tenant asked the court to consider whether para. 7 of her Notice of Appeal raised a question of law. This paragraph falls under the heading of the relief sought by the appellant rather than under the grounds for appeal.

[20] Para. 7 of the Notice of Appeal reads (verbatim) as follows:

7. Edu’s Analysis number 17 state that N5 notice served February 11, 2024 is mistaken, it was dated February 6, 2024 first notice 7 days is February 13, 2024, S. Chisholm [Counsel] for Schafranek’s email to the appellant was February 6, 2024 state that inspection on Tribunal’s Avril Farham adjudicator in December 16, 2022 inspection is February 14, 2024 at noon, conclusive of compliance.

[21] In her submissions, the Tenant acknowledged that she was mistaken about these dates: where she had written 2024, she should instead have written 2023.

[22] My understanding of these submissions is that the N5 provided the Tenant with seven days to comply following its service. The Tenant submitted that the LTB made a mistake when it said that service of the N5 was effected on February 11, 2024[^3] when, in fact, she received a copy of it on February 6, 2024[^3].

[23] Notwithstanding this apparent error, the Tenant confirmed at this hearing that the seven- day window would have expired on February 13, 2023 and that the follow-up inspection did not, in fact, take place until February 14, 2023, as noted at paragraph 20 of the LTB decision.

[24] Para. 20 of the LTB decision reads as follows:

The Commission gave the Tenant an additional 30 days to comply with the [FPPA] order and in spite of their decision upholding the Inspection Order, the Tenant continues to argue that the unit is not a safety risk and has failed to make any meaningful changes to the unit as demonstrated from the inspection of February 14, 2023. Therefore, I find that the conduct of the Tenant has substantially interfered with the reasonable enjoyment of the residential complex and with a lawful right, privilege, or interest of the Landlord.

[25] It is clear from the LTB’s reasons that on the LTB hearing, the Tenant took the position that the FPPA Order was made in error; the Tenant specifically disagreed with the factual findings set out in the FPPA Order.

[26] In her submissions today, the Tenant repeated her view that her Apartment presents no fire hazard and that the HFD and specifically, Inspector Schafranek, were simply wrong in making the FPPA Order.

[27] I accept the submissions of the Landlord, that it was not open to the LTB to go behind the FPPA Order and to make its own a determination as to whether the Apartment was in compliance with fire safety requirements: the FPPA Order was conclusive evidence of that fact. The Landlord also reminded this court that the Tenant unsuccessfully appealed from the FPPA Order, and, although she appealed from the Commission’s decision to the Divisional Court, the Commission’s Order, upholding the FPPA Order, remains in effect.

[28] In her submissions to this court, the Tenant volunteered that she has counsel on the appeal from the Commission and that her lawyer told her that she would be better to keep her Apartment than to fight the Fire Department.

[29] It is most unfortunate that the Tenant did not take that advice.

[30] It is also most unfortunate that the Tenant cannot accept the findings made by the HFD, that the combustibles in the Apartment pose a fire risk to her, other residents in the complex and to first responders, should there be a fire. The Tenant has also refused the help offered to her by the Landlord, which had offered to assist the Tenant to comply with the FPPA Order, at the Landlord’s expense.

[31] The Tenant has appeared before this court a number of times on this appeal and has been urged to take steps to clean out the combustibles in her Apartment. I have also explained to her that the consequence of her failing to comply with the FPPA Order puts her tenancy at risk.

[32] While the Tenant is self-represented, on at least one occasion, she appeared before this court accompanied by her son and, on a different occasion, accompanied by her spouse. I am satisfied that the Tenant understands the consequences of pursuing this appeal rather than to accept that her Apartment, in its current state, poses a safety hazard.

[33] I understand that the Tenant is a senior with health difficulties. She advised the court she is living on a fixed income and that because she has lived in this unit for some 26 years, she is paying a rent that is perhaps less than one-half of the current market rent.

[34] Again, while the Tenant voices concern about being evicted from the Apartment, she has refused to do what must be done to make her Apartment safe for both herself and others, including – most importantly - the safety of the other residents in the residential complex and of first responders, should there be a fire in the Apartment.

Disposition

[35] I find that the Notice of Appeal does not raise any questions of law and on that basis I hereby quash and/or dismiss the appeal.

[36] In addition, given the outstanding FPPA Order and the serious safety concerns to the Tenant and others, I also make an order lifting the stay of the LTB Order, which is to be lifted immediately. While this order might appear to be severe from the Tenant’s perspective, she has known since March 2024 that she was facing an eviction Order and, clearly, following the case management conference on April 29, 2024, she knew that the Landlord was seeking a lifting of the stay of the eviction Order and the dismissal of her appeal. She has had time to ready herself for this order.

[37] While I accept the submissions of the Landlord that even if the lifting of the stay is granted immediately, the enforcement of the eviction Order will take some time to implement, I order and direct that the Sheriff is not to enforce the eviction until on or after August 30, 2024.

[38] The Landlord asked for an Order waiving the requirement that the formal Order giving effect to these reasons not be approved as to form and content by the Tenant. In the circumstances, I grant that relief.

Costs

[39] The Landlord filed two bills of costs: the first related to costs incurred by the original counsel for the Landlord and the second related to the costs of the Landlord’s current lawyers.

[40] At the hearing before me, the parties were invited to address costs. The Landlord’s counsel sought costs fixed in the amount of $10,000 in respect of the appeal and this motion, fixed on a partial indemnity basis.

[41] The Tenant submitted that she has a fixed income and has no ability to pay any costs.

[42] While I accept the Tenant’s submissions with respect to her lack of financial wherewithal, an impecunious litigant cannot expect to be immunized from the consequences of their actions: to do so would be to allow them to litigate without any fear of cost sanctions and to ask the Landlord to endlessly absorb the costs of responding to the Tenant’s appeals without recourse. That is manifestly unfair.

[43] In this case, the Tenant has vigorously engaged in the various appeal processes available to her, as is evidenced in the chronology set out earlier in these reasons. While it does not influence my decision respecting costs, at the conclusion of submissions on this motion, the Tenant volunteered that she was aware that she also has a right of appeal from this Order and that she intended to do so.

[44] For the reasons set out, and in consideration of the Landlord’s Bills of Costs filed, I fix the costs of this appeal and the motion at $10,000 all inclusive, payable by the Tenant within 90 days of this date.

[45] The Landlord may submit a draft Order to me for a signature without first seeking the approval of the Tenant as to form and content. The draft Order may be submitted to my attention via email sent through the Trial Coordinator, and the Tenant is to be copied on that email.

Justice L. Sheard

COURT FILE NO.: DC-24-260

DATE: 2024/07/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Songja Hasselsjo

Appellant

– and –

Dernetro Holdings Ltd. c/o Effort Trust

Respondent

REASONS FOR DECISION – MOTION TO DISMISS Or QUASH APPEAL AND LIFT STAY

L. Sheard J.

Released: July 17, 2024

[^1]: S.O. 1997, c.4

[^2]: Pursuant to the FPPA, s.36(4) an appeal lies to the Divisional Court on any question that is not a question of fact alone.

[^3]: Pursuant to the Rules, service of a document that is mailed is effective on the fifth day after mailing.