Metropole Management (Toronto) Corporation v. Aly
CITATION: Metropole Management (Toronto) Corporation v. Aly, 2024 ONSC 5637
DIVISIONAL COURT FILE NO.: 110/24
DATE: 20241015
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Metropole Management (Toronto) Corporation Appellant
– and –
Salah Aly Respondent
COUNSEL: Tony Bui, for the Appellant Delaram Jafari, for the Respondent Nicola Mulima, for the Landlord and Tenant Board
HEARD at Toronto: September 9, 2024
Davies J.
REASONS FOR DECISION
A. Overview
[1] Salah Aly has been a tenant since 2009 in a condominium owned by Metropole Management (Toronto) Corporation. There has been a recurring problem with mold in Mr. Aly’s unit. In August 2020, Metropole started an application before the Landlord and Tenant Board seeking an order terminating Mr. Aly’s tenancy. Metropole also sought more than $20,000 in compensation from Mr. Aly for repairs to the unit. Metropole took the position that Mr. Aly’s failure to keep the unit clean caused the mold.
[2] At the same time, Mr. Aly brought an application before the Board arguing that Metropole had breached its obligation to properly maintain the unit. Mr. Aly took the position that the ventilation system in the unit was inadequate and that is what caused the mold.
[3] Following a two-day hearing, the Board dismissed Metropole’s application and granted Mr. Aly’s application in part. The Board found that Metropole had not proven that Mr. Aly caused the mold. The Board also found that Metropole had failed to fully investigate the source of the mold and failed to properly repair the ventilation system. The Board granted Mr. Aly a rent abatement of $288 a month and ordered Metropole to repair the exhaust ventilation system in the unit.
[4] Metropole appeals the Board’s decision. Metropole raises three grounds of appeal. First, Metropole argues the Board applied the wrong legal standard in assessing whether Mr. Aly caused the mold in his unit. Second, Metropole argued the Board made factual findings that were unsupported by the evidence. Third, Metropole argues the Board failed to provide adequate reasons.
[5] For the following reasons, the appeal is dismissed.
B. Scope of Appeal and Standard of Review
[6] An order of the Board can only be appealed on a question of law and the applicable standard of review is correctness: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210(1), Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37. This court does not have jurisdiction to hear an appeal on a question of fact, or of mixed fact and law: Devenne v. Sedun, 2020 ONSC 6141(Div. Ct.), at para. 26.
[7] A question of law is a question about what legal test applies. Failing to apply the correct legal standard or failing to consider a required element of a legal test is an error of law: Housen v. Nikolaisen, 2002 SCC 33, at para. 36. A question of fact, on the other hand, is a question about what took place. And a question of mixed fact and law is a question about whether the facts satisfy the legal test: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748, at para. 35.
C. Did the Board apply the Wrong Standard?
[8] Metropole brought two separate applications. First, Metropole brought an application to evict Mr. Aly under s. 62 of the Residential Tenancies Act, which states as follows:
A landlord may give a tenant notice of termination of the tenancy if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex.
[9] Second, Metropole brought an application for compensation under s. 89 of the Residential Tenancies Act, which states that a landlord may apply to the Board for an order requiring a tenant to pay reasonable costs incurred by the landlord for the repair of damaged property if the tenant “wilfully or negligently” damaged the rental unit.
[10] To succeed on either application, Metropole had to establish that Mr. Aly (or another occupant of his unit) “wilfully or negligently caused undue damage to the rental unit.”
[11] Metropole argues the Board applied the wrong legal test. Metropole points to the last paragraph of the Board’s reasons on the Landlord’s applications in which the Board wrote:
The Landlord failed to prove that the Tenant’s willful negligence was the cause of the mold issue. Therefore, the Landlord’s application is dismissed. [emphasis added]
[12] Metropole argues that “wilful negligence” is the wrong test: The Board should have considered whether Mr. Aly wilfully or negligently caused the mold.
[13] Mr. Aly argues that when the reasons are read as a whole it is clear the Board applied the right legal test and misstatement in the final paragraph was just a typographical error. Mr. Aly points to the fact that the Board articulated the right legal test in the very first paragraph of its reasons. In the alternative, Mr. Aly argues the error had no impact on the outcome of the appeal.
[14] I agree with Metropole that the Board articulated the wrong legal test in the concluding paragraph of its reasons on the Landlord’s applications. To succeed on either of its applications, Metropole had to prove two things: (1) Mr. Aly’s acts or omissions caused the mold; and (2) his acts or omissions that caused the mold were either wilful or negligent. Metropole was not required to establish the mold-causing conduct was both wilful and negligent.
[15] However, even if I find the Board made a legal error, I should only order a new hearing if I also find “some substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, s. 143(6), Marchand v. The Public General Hospital Society of Chatham, at para. 69 and 124.
[16] In this case, the misstatement did not result in a substantial wrong or miscarriage of justice. The Board found that Metropole failed to prove the first branch of the test, namely causation. The Board found that Metropole had not established Mr. Aly’s conduct (whether wilful or negligent) caused the mold. Those are factual findings that are entitled to deference on appeal unless they are tainted by a legal error, which is Metropole’s second argument.
[17] As explained below, I find the Board made no legal error in finding that Metropole had not proven that Mr. Aly caused the mold. As a result, the misstatement of the legal test had no impact on the Board’s conclusion.
D. The Board made no legal error in finding that Metropole did not prove Mr. Aly caused the mold
[18] There are very few circumstances in which the Board’s factual findings or assessments of the evidence will amount to an error of law. For example, challenges to the sufficiency of the evidence or to the weight given to the evidence do not raise questions of law. On the other hand, if the Board made a finding of fact for which there is no supporting evidence, that would be a legal error: R. v. J.M.H., 2011 SCC 45, at para. 25. Similarly, it would also be an error of law for the Board to make a finding of fact based solely on irrelevant evidence or to make an irrational inference from the evidence.
[19] In my view, the Board did not commit any error of law in finding that Mr. Aly did not cause the mold in his unit. The Board reviewed the photographs filed by Metropole that depicted the extent of the mold and the state of cleanliness in the unit. The Board also reviewed the correspondence filed by Metropole about the extent of the mold and the presence of moisture on the bathroom floor. The Board referred to correspondence about a leak in the bathroom in the unit and about the timing of the repairs. The Board noted that the landlord did not call a witness to testify about the cause of the mold from the company that prepared the remediation plan.
[20] The Board did not ignore relevant evidence on the issue of causation. Nor did the Board make findings of fact without any evidence to support them. Rather, the Board considered the evidence on the issue of causation and found that the landlord had not proven that Mr. Aly caused the mold:
The Landlord’s representative assumes the Tenant’s upkeep of the rental unit is the cause of the mold growth but there was no evidence proving that the Tenant’s overall care of the rental unit was the cause of the mold growth.
[21] Based on the location and concentration of the mold in the bathroom, the Board found that the damage from the water leak was not properly repaired or had not been repaired in a timely manner. It was open to the Board to make those findings.
[22] There was evidence that the landlord had investigated the mold and made some repairs over the years. For example, the landlord filed a 2016 report from the mold remediation company with recommendations for addressing the mold. There was also evidence the landlord had repaired or replaced the exhaust fans in the bathroom and kitchen several times between 2010 and 2012. The landlord also filed a log of all the work done in the unit between 2015 and 2020. However, given the persistence of the mold issue despite the work that was done, it was also open to the Board to find that the landlord had not fully investigated the problem. There is no basis to find that the Board made a legal error in making that factual finding.
E. Sufficiency of the Reasons
[23] Metropole’s final argument is that the Board’s reasons are insufficient.
[24] The test for establishing that the Board’s reasons are so inadequate that they amount to an error of law is high. The Board is not required to review every piece of evidence or analyze every factor in detail: Housen v. Nikolaisen, 2002 SCC 33, at para. 39. To succeed on this ground of appeal, Metropole must establish the reasons are so deficient that it is not possible to conduct a meaningful review of the correctness of the Board’s decision: R. v. Sheppard, 2002 SCC 26, at para. 28.
[25] The Board’s reasons must be read holistically having regard to the evidence and submissions. I am satisfied the Board reviewed relevant evidence and addressed the key issues in its reasons. The reasons are sufficiently detailed to allow meaningful appellate review, as reflected in my reasons respecting the first two issues on appeal.
F. Conclusion and Costs
[26] Metropole’s appeal is dismissed.
[27] As the successful party, Mr. Aly is entitled to costs on this appeal which shall be fixed at $3,500 inclusive of HST and disbursements.
Davies J.
Date: October 15, 2024
CITATION: Metropole Management (Toronto) Corporation v. Aly, 2024 ONSC 5637
DIVISIONAL COURT FILE NO.: 110/24
DATE: 20241015
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Metropole Management (Toronto) Corporation Appellant
– and –
Salah Aly Respondent
REASONS FOR DECISION
Davies J.
Released: October 15, 2024