Citation: Wright v. Hardit, 2024 ONSC 5059

DIVISIONAL COURT FILE NO.: 176/24

DATE: 2024-09-16

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SIMONE WRIGHT, Appellant/Tenant

AND: HARDIT CORPORATION, Respondent/Landlord

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant Martin P. Zarnett, for the Respondent Anna Solomon, for the Landlord and Tenant Board

HEARD at Toronto: September 13, 2024, by video-conference

ENDORSEMENT

[1] The tenant appeals from the decision of the Landlord and Tenant Board (LTB) dated February 2, 2024 (the Decision), and the related dismissal of the request for a review of that decision dated February 15, 2024 (the Review Decision).

[2] The LTB found that the appellant was persistently late in paying her rent on the due date, which is a ground for the termination of a tenancy as set out in s. 58(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA).

[3] Very briefly, the tenant had brought applications to the LTB in 2022 regarding alleged maintenance issues and substantial interference with the reasonable enjoyment of the unit as a result of damage due to a flood. In those materials, the tenant asked for permission to pay her rent to the LTB rather than the landlord. Although she did not receive a reply, permission or an order to that effect, the tenant began to withhold her rent altogether and did so for many months. As a result of the failure to pay rent, the landlord brought an application for the arrears. Just before that application was to be heard, the tenant paid about $15,000 in arrears of rent. The application was therefore discontinued. Immediately afterward, the tenant continued to fail to pay rent for another lengthy period that gave rise to arrears of more than another $15,000. Another application for arrears was brought as well as an application for an eviction based on persistent non-payment of rent. The tenant paid the arrears again and disputed the eviction application.

[4] The landlord’s applications were scheduled before the tenant’s applications.

[5] At the hearing giving rise to the Decision, the tenant testified and admitted to deliberately withholding her rent for a long period of time. The tenant said that the first period was due to her request to pay rent to the LTB (which went unanswered) and the second period was due to a ledger issue as well. The tenant also testified that by that time the City had done the repairs needed to her unit.

[6] The Member found as a fact that the tenant had been late nineteen out of the twenty months and noted that there was no evidence to the contrary. The Member therefore found that there had been a persistent failure to pay rent when due. The Member considered relief from eviction under s. 83 of the RTA, including not only the tenant’s deliberate withholding of rent but also her personal/family circumstances, and gave a short postponement of the eviction.

[7] On review, the Member noted that the hearing recording showed that the parties were aware of the issues to be determined and exercised their rights to be heard on those issues. The Member noted the tenant’s evidence at the hearing and found that there was ample evidence that the tenant had been persistently late. The Member also found that the Decision under s. 83 fell within a reasonable range of outcomes.

[8] The right of appeal to this Court is on questions of law only, which include allegations of procedural unfairness. The tenant submits that the LTB was procedurally unfair and made errors of law in the Decision and Review Decision, as follows:

(i) by scheduling the landlord’s applications first, even though the tenant had already commenced applications for relief against the landlord, and by hearing the landlord’s applications separately;

(ii) by finding that the tenant was persistently late; and,

(iii) by ignoring relevant evidence.

[9] The standard of review is not at issue. The question is whether the above issues are questions of law. If so, the standard of review is correctness.

[10] The level of procedural fairness required by a tribunal is context-specific. As set out in the s. 183 of the RTA, the LTB is obligated to adopt the most expeditious method of determining the questions arising in a proceeding that affords the parties with an adequate opportunity to know the issues and to be heard. It is “well settled that an administrative tribunal such as the [LTB] is entitled to control its own procedure and is entitled to deference on matters requiring the exercise of discretion, such as scheduling”: Riddell v. Huynh, 2019 ONSC 2620 (Div. Ct.), at para. 43.

[11] The tenant has not shown that the scheduling in this case was unfair. It was within the LTB’s discretion and arose in the context of alleged (and ultimately proved) substantial arrears of rent. Further, the tenant could have, and did not, bring a motion to have her applications heard together with the landlord’s.

[12] With respect to the arrears application being heard separately from the application based on persistent late payment, the RTA permits the two different types of applications and does not require that they be heard together. Further, the Member expressly considered this Court’s decision in Tataw v. Minto Partner L.P., 2023 ONSC 4238, in which the Court disagreed with the submission that it was unfair to bring separate applications for arrears of rent and late payment: at para. 13. The Court held that these two types of applications were related but were different problems with distinct processes that usually lead to different remedies: at paras. 14, 19.

[13] It was not procedurally unfair for the LTB to hear the landlord’s application separately, nor was it procedurally unfair to refer to the prior LTB decision about arrears in the Decision. The tenant participated fully in the prior application.

[14] The tenant also submitted that the hearing giving rise to the Decision was unfair because she did not have notice of the issues from which she could prepare for the hearing. This submission is not supported by the record, which shows that she did have notice.

[15] On the second issue, the LTB found that the tenant had persistently failed to pay the rent when due and had done so for each month for over a year. This is a finding of fact or of mixed fact and law and not the proper subject of an appeal: Lerose v. Princess Apartments, 2022 ONSC 7 (Div. Ct.), at para. 29.

[16] The tenant submits that there was an error in law because the LTB failed to distinguish between rent payments withheld for valid reasons and other failures to pay. The tenant has not shown that this is a legal requirement. The RTA states the grounds to evict, which are as follows: “The tenant has persistently failed to pay rent on the date it becomes due and payable.” The statute does not distinguish based upon the reasons for the non-payment. The Member had the tenant’s explanation and could have considered it in the exercise of discretion regarding whether to evict under s. 83. The Member did so and it did not assist the tenant. There was no error of law.

[17] The tenant further submits that the Member failed to take into account all her circumstances when making its decision under s. 83 of the RTA. The tenant submits that the LTB ought to have considered her applications as well as her complaints to the municipal by-law office. It is apparent from the reasons for decision that the LTB did consider her submissions about damage to the premises due to the flood. The tenant has not shown that her by-law application documents were properly before the Member. In any event, the Member expressly noted that the tenant had several avenues available to her if the landlord did not address her issues about the flood in her apartment. The LTB also noted that the tenant admitted that she withheld the rent and considered the tenant’s issues with the recording of the rent deposit. The issues raised by the tenant are not errors of law.

[18] The tenant submits that the Member misapprehended the evidence giving rise to an error in law. She submits that not paying at all is not a pattern of late payments. The tenant submits that her two “bulk payments” in response to the landlord’s arrears applications did not mean that the tenant was persistently late in paying her monthly rent. These submissions do not give rise to an error of law.

[19] This appeal is therefore dismissed. The landlord has submitted that given the tenant’s personal circumstances, it agrees to defer the eviction for two months. The tenant requests as long as possible. Having considered the record, the tenant shall provide the landlord with vacant possession by November 30, 2024, after which the landlord may enforce the eviction if necessary. The tenant shall also pay the landlord costs fixed at $1,500, all inclusive, by the same date.

Matheson J.

Date: September 16, 2024