Fialho v. Hazelview Properties, 2024 ONSC 6077
CITATION: Fialho v. Hazelview Properties, 2024 ONSC 6077
DIVISIONAL COURT FILE NO.: 165/24
DATE: 20241104
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Alexandra Fialho Appellant
– and –
Hazelview Properties Respondent
COUNSEL:
Alexandra Fialho, self-represented
David Lyman, for the Respondent
Nicola Mulima, for the Landlord and Tenant Board
HEARD at Toronto: October 18, 2024
DAVIES J.
REASONS FOR DECISION
A. Overview
[1] Ms. Fialho has been living in her apartment, which is now owned by Hazelview Properties, for more than 48 years.
[2] In October 2022, the Landlord and Tenant Board ordered Ms. Fialho to pay more than $24,000 in rental arrears over three years. That order required Ms. Fialho to make monthly payments towards the arrears plus a larger lump sum payment each year. On February 5, 2024 the Landlord and Tenant Board terminated Ms. Fialho’s tenancy because she failed to comply with the October 2022 order. Ms. Fialho sought a review of that order. On March 5, 2024, Ms. Fialho’s request for a review was denied without a hearing.
[3] Ms. Fialho now appeals both the February 5, 2024 order and the March 5, 2024 review order. Ms. Fialho raised four grounds of appeal:
a. The Board failed to consider relevant evidence before making the February 5, 2024 eviction order;
b. The Board’s decision to not schedule a review hearing was procedurally unfair;
c. The Board erred in failing to give effect to the fresh evidence Ms. Fialho filed on the request for review; and
d. The Board failed to consider whether it was fair to evict Ms. Fialho given that she was not behind on the repayment plan by the time her request for review was heard and given her personal circumstances.
[4] For the following reasons, Ms. Fialho’s appeal is dismissed. I find that the Board’s process was procedurally fair. I also find that the Board did not make a legal error in relation to either order.
B. Scope of Appeal and Standard of Review
[5] This court can only hear an appeal from an order of the Board on a question of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210(1). This court does not have jurisdiction to consider questions of fact, or questions of mixed fact and law: Devenne v. Sedun, 2020 ONSC 6141(Div. Ct.), at para. 26. The question for me is not whether I would have made the same decision as the Board. The question is whether the Board made any legal error.
[6] The applicable standard of review on a question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.
C. History of Proceedings before the Board
[7] To understand my findings, I must briefly summarize the history of this case.
[8] In February 2018, the previous landlord filed an application seeking to terminate Ms. Fialho’s tenancy for non-payment of rent. At that time, Ms. Fialho owed just over $2,000 in arrears. The parties reached an agreement that gave Ms. Fialho an opportunity to pay the arrears over time. Ms. Fialho failed to make the first arrears payment and the Board ordered her eviction. Ms. Fialho brought a motion to set aside that eviction order. The parties reached another agreement and a new payment plan was put in place.
[9] There have been a series of applications before the Board since 2018 when Ms. Fialho missed a payment. On each application, the Board gave Ms. Fialho another opportunity to get back on track with her payments.
[10] On October 19, 2022, the Board gave Ms. Fialho “a final chance to preserve [her] home.” By that time, Ms. Fialho owed more than $24,000 in arrears. Over the landlord’s objection, the Board imposed a three-year payment plan that required Ms. Fialho to pay $300 each month towards the arrears and to a make larger lump sum payment each year.
[11] Under the October 19, 2022 order, Ms. Fialho was required to pay $4,000 towards the arrears on December 21, 2022 and $2,000 towards the arrears on November 1, 2023.
[12] When Ms. Fialho failed to make the $4,000 payment on December 21, 2022, Hazelview filed an application under s. 78 of the Residential Tenancies Act, which says that a landlord may, without notice to the tenant, apply for an eviction order if three conditions are met:
a. The landlord has previously applied for an eviction order;
b. A settlement was reached or an order was made in relation to the previous application that imposed conditions on the tenant and that allowed the landlord to apply for an eviction order if the conditions are not met; and
c. The tenant breached a condition of the settlement or order.
Under s. 78(5) of the Act, an application must be made within 30 days of the breach of the order.
[13] On October 16, 2023, the Board dismissed Hazelview’s application because the Board found that Hazelview had not filed its application within 30 days of the breach.
[14] Hazelview sought a review of the Board’s October 16, 2023 decision. Hazelview argued it had, in fact, filed its application within 30 days of the breach. The request for a review was granted.
[15] A de novo hearing of the landlord’s application was held on January 9, 2024 before Member Edu. Ms. Fialho was given an opportunity to participate in the de novo hearing.
[16] Ms. Fialho admitted that she did not pay the $4,000 as required on December 21, 2022. She paid Hazelview $3,000 of the $4,000 owing on February 1, 2023. By January 9, 2024, Ms. Fialho still had not paid the remaining $1,000 that was due in December 2022. She had also missed the $2,000 payment that was due on November 1, 2023.
[17] Member Edu made an oral interim order during the January 9, 2024 hearing. Member Edu gave Ms. Fialho one more chance to make the outstanding arrears payments. Member Edu ordered that if Ms. Fialho paid Hazelview $3,000 within one week (by January 17, 2024), no eviction order would be made and the October 19, 2022 payment plan would remain in effect. If, however, Ms. Fialho failed to pay Hazelview $3,000 by January 17, 2024, her tenancy would be terminated.
[18] Ms. Fialho only paid Hazelview $1,000 on January 17, 2024 and on February 5, 2024, Member Edu made an order terminating Ms. Fialho’s tenancy.
[19] Ms. Fialho requested a review of Member Edu’s order. On March 5, 2024, Member Kovats denied Ms. Fialho’s request for a review without a hearing.
D. Member Edu did not make a legal error in declining to consider Ms. Fialho’s post-hearing submissions
[20] Ms. Fialho argues that Member Edu erred in refusing to consider her explanation for why she did not satisfy the terms of the interim conditional order by January 17, 2024.
[21] Ms. Fialho paid Hazelview $1,000 by e-transfer on January 17, 2024. On January 18, 2024, Ms. Fialho sent Member Edu a letter explaining that she tested positive for COVID-19 shortly after the January 9, 2024 hearing. Ms. Fialho wrote that she was expecting to get the additional $2,000 from her employer but she could not go to the office because she was sick. She attached a letter from her doctor, which said she could not return to work for a week. Ms. Fialho asked for the January 17, 2024 deadline to be extended by one week.
[22] On February 5, 2024, Member Edu issued her order evicting Ms. Fialho. In her ruling, Member Edu acknowledged receipt of Ms. Fialho’s January 18, 2024 letter but declined to consider Ms. Fialho’s explanation:
On January 18 2024, the Tenant sent an email to the Board detailing the reasons why she failed to pay the full $3,000.00 to the Landlord as promised. Those reasons cannot be considered in my determination because they occurred post hearing. On the same date, the Landlord sent an email to the Board confirming that the Tenant did not make the payment. (emphasis added)
[23] Ms. Fialho argues Member Edu erred in refusing to consider her explanation. I do not agree.
[24] Parties have no right to adduce additional evidence after a hearing ends. Member Edu invited the parties to confirm whether Ms. Fialho complied with her interim conditional order or not. Member Edu did not invite the parties to submit further evidence or to make further submissions about the reason for any non-compliance. Member Edu’s order was clear: if Ms. Fialho paid the landlord $3,000 by January 17, 2024, no eviction order would be made and if she failed to pay, an eviction order would be made. Member Edu had no obligation to consider further evidence or argument after the hearing ended.
[25] Ms. Fialho raised this issue on her request to review Member Edu’s order. Ms. Fialho argued that Member Edu erred in not considering her explanation for the delay. Ms. Fialho argued the circumstances were beyond her control. Ms. Fialho also argued that if she had known she was going to contract COVID-19 and be quarantined, she would not have promised to make the payment within a week. Ms. Fialho submitted the same evidence with her request for a review that she sent to Member Edu on January 18, 2024, including the note from her doctor. In addition, Ms. Fialho filed a copy of a money order dated January 31, 2024 payable to the landlord in the amount of $2,000 to show that she had made the required payment.
[26] Member Kovats considered all the evidence Ms. Fialho submitted with her request for review. Member Kovats noted that Ms. Fialho had submitted medical evidence explaining why she did not make the full payment on January 17, 2024. However, Member Kovats found that Member Edu did not err in declining to consider Ms. Fialho’s evidence about why she had not paid Hazelview $3,000 by January 17, 2024. Member Kovats found that Ms. Fialho’s post-hearing submissions went beyond the scope of what Member Edu had requested or authorized, and Member Edu was, therefore, entitled to disregard her submissions. Member Kovats also found that it would have been unfair to the Landlord for Member Edu to consider Ms. Fialho’s further explanation.
[27] Member Edu made no legal error in declining to consider Ms. Fialho’s explanation for failing to comply with the interim conditional order and Member Kovats made no legal error in dismissing this ground for review.
E. Member Kovats did not breach Ms. Fialho’s right to procedural fairness by dismissing her request for review without an oral hearing
[28] Ms. Fialho argues that Member Kovats, who considered her request for review, erred in deciding the review without holding an oral hearing. Ms. Fialho argues she was denied a right to be heard, which is a breach of her right to procedural fairness. I disagree.
[29] Proceedings before the Landlord and Tenant Board do require a high level of procedural fairness because the stakes are very high when a landlord is seeking to evict a tenant, particularly a long-term tenant on a fixed income like Ms. Fialho. The proceedings must also comply with the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. For example, the parties are entitled to reasonable notice of the hearing. They have a right to be represented. They have a right to adduce relevant evidence. And they have a right to a written order and written reasons. If the Board failed to afford a party procedural fairness, that would be an error of law that falls within this court’s jurisdiction: Shapiro v. Swingler, 2021 ONSC 6191 at para. 25.
[30] Ms. Fialho is correct that she had a right to be heard in relation to her request for a review: Residential Tenancies Act, 2006, s. 183. But that does not mean she had a right to an oral hearing on her request for a review. The Rules of Procedure of the Landlord and Tenant Board state that a request for a review must be made in writing and the Board will conduct a preliminary review of the request before deciding whether to hold an oral hearing. Based on that preliminary review, the Board may either dismiss the request or direct a hearing of some or all the issues raised: Rules of Procedure of the Landlord and Tenant Board, Rule 26. The Board is entitled to conduct the preliminary review based on the written submissions of the parties.
[31] Ms. Fialho made full submissions on her request for a review and submitted new evidence that she felt was relevant to her review. She did not have a right to an oral hearing. Member Kovats considered her submissions and new evidence. The decision to dismiss the review without an oral hearing was not procedurally unfair.
F. Member Kovats considered Ms. Fialho’s fresh evidence about the November 2023 payment
[32] Ms. Fialho argued that Member Kovats failed to consider her fresh evidence she filed in support of her request for a review of Member Edu’s decision.
[33] In her request for a review, Ms. Fialho argued that Member Edu misapprehended the evidence and erred in finding that she had not made the November 2023 lump sum payment. Ms. Fialho adduced fresh evidence to prove that, contrary to Member Edu’s finding, she had, in fact, made the $2,000 payment in November.
[34] Ms. Fialho testified before Member Edu that she gave the landlord post-dated cheques for several of the 2023 arrears payments, including the $2,000 lump sum payment due in November 2023. She testified that she arranged a $2,000 overdraft on her bank account to ensure the cheque would clear. Ms. Fialho argued before Member Edu that she should not be penalized or found to be in breach of the 2022 payment plan when it was the landlord who chose not to deposit the cheque.
[35] The landlord’s representative testified before Member Edu that they had no record of receiving post-dated cheques from Ms. Fialho.
[36] Member Edu found as a fact that Ms. Fialho breached the October 2022 order by failing to pay the full amount owing in December 2022 and by failing to pay the $2,000 owing in November 2023. Those findings were open to Member Edu on the evidence adduced at the hearing and cannot be appealed to this Court.
[37] On the review, Ms. Fialho filed evidence to corroborate her testimony about the post-dated cheques. She submitted a letter from the Superintendent of her building confirming that the Superintendent received several post-dated cheques from Ms. Fialho in May 2023, including a cheque dated November 1, 2023 for $2,000. The letter also confirmed that any un-cashed post-dated cheques were returned to Ms. Fialho on January 31, 2024 when Ms. Fialho submitted the money order for the remaining $2,000.
[38] Member Kovats considered Ms. Fialho’s new evidence about the post-dated cheque and considered her argument about the significance of that evidence. Member Kovats gave detailed reasons for dismissing Ms. Fialho’s request for a review. Contrary to Ms. Fialho’s submissions, Member Kovats did not reject her evidence about the post-dated cheques or her explanation for the delay. Rather, Member Kovats found that the new evidence about the post-dated cheques would not have changed the outcome of the hearing because Member Edu gave Ms. Fialho an opportunity to preserve her tenancy by rectifying the problem with the November 2023 payment.
[39] Member Kovats made no legal error in her assessment of the fresh evidence.
G. The Board considered whether to grant Ms. Fialho relief from eviction
[40] Ms. Fialho argues Member Edu and Member Kovats failed to consider all relevant circumstances when deciding whether it would be fair to make an order evicting her. I disagree.
[41] The Board has the discretion to not make an eviction order even if the landlord establishes there are grounds for eviction: Residential Tenancies Act, s. 83(1). In fact, if the Board holds a hearing, it must consider all the circumstances and decide whether to exercise its discretion to grant the tenant relief from eviction: Residential Tenancies Act, s. 83(2).
[42] Member Edu expressly considered whether to grant Ms. Fialho relief from eviction even though she found Ms. Fialho had breached the October 2022 payment plan order. Member Edu considered the length of Ms. Fialho’s tenancy, the personal circumstances of both Ms. Fialho and her family members, and Ms. Fialho’s ties to the communities. It was because of those circumstances that Member Edu granted Ms. Fialho relief from eviction if she paid the $3,000 owing and put herself back in good standing in relation to the October 2022 payment plan.
[43] When Ms. Fialho failed to make the $3000 payment, Member Edu considered whether to give Ms. Fialho another chance to rectify the breach by issuing another conditional eviction order. Member Edu considered the history of proceedings before the Board and Ms. Fialho’s pattern of non-payment of rent and arrears. Member Edu found, “I am not persuaded that the Tenant will comply with any other conditional orders issued by the Board, and issuing one in this circumstance is prejudicial to the Landlord.” Nonetheless, Member Edu delayed Ms. Fialho’s eviction by several weeks because of her personal circumstances.
[44] Member Edu’s decision not to grant Ms. Fialho relief from eviction involved the exercise of discretion based on the factual findings she made. That is a question of mixed fact and law, not a question of law, and cannot be appealed to this court.
[45] Ms. Fialho also argues it was unfair for Member Kovats to confirm the eviction order because, by the time she filed her application for review, she had paid the full $3,000. Ms. Fialho filed a copy of a money order dated January 31, 2023 payable to Hazelview in the amount of $2,000.
[46] I am sympathetic to Ms. Fialho’s position. However, the question on the landlord’s application under s. 78 of the Residential Tenancies Act was whether Ms. Fialho was in breach of the October 2022 payment plan when that application was filed in January 2023. Ms. Fialho admitted she was. The fact that she had rectified the breach by the time Member Kovats considered her request for a review does not mean there was a legal error in Member Edu’s decision to make an eviction order or in Member Kovats decision to confirm that order: 592182 Ontario Limited v. Red, 2024 ONSC 4935 at para. 5.
H. Conclusion and Costs
[47] Ms. Fialho’s appeal is dismissed.
[48] As the successful party, Hazelview is entitled to costs which are fixed at $1,500 inclusive of HST and disbursements. This costs order is significantly less than what Hazelview requested but I have considered Ms. Fialho’s ability to pay a larger cost order given that she has a fixed income.
Davies J.
Date: November 4, 2024
CITATION: Fialho v. Hazelview Properties, 2024 ONSC 6077
DIVISIONAL COURT FILE NO.: 165/24
DATE: 20241104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Alexandra Fialho Appellant
– and –
Hazelview Properties Respondent
REASONS FOR DECISION
Davies J.
Released: November 4, 2024