Shannon v Selim, 2024 ONSC 6576

CITATION: Shannon v Selim, 2024 ONSC 6576

DIVISIONAL COURT FILE NO.: 47/23

DATE: 20241125

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NICOLE SHANNON and CHRIS SHANNON, Appellants

-and-

METIN SELIM, Respondent

BEFORE: Mew, Myers, and O’Brien JJ.

COUNSEL: Nicole Shannon and Chris Shannon, for themselves

Stephanie Adams, for the Respondent

Sabrina Fiacco, for the Landlord and Tenant Board

HEARD at London (by videoconference): November 25, 2024

FL Myers J.:

REASONS FOR DECISION

[1] The tenants appeal the eviction order made by the Landlord and Tenant Board dated September 25, 2024. The tenants also appeal the order dated October 27, 2023 dismissing their request for reconsideration of the eviction order.

[2] The tenants also ask to review the order made by Tranquilli J. dated January 15, 2024 requiring them to pay rent while their appeal is underway. We decline to consider this motion as it is rendered moot by the outcome of the appeal.

[3] The appeal is brought pursuant to s. 210 of the Residential Tenancies Act, 2006, SO 2006 c 17. Under that section, the appeal may consider only questions of law.

[4] The standard of review on appeals on questions of law is correctness. Housen v. Nikolaisen, 2002 SCC 33.

[5] Neither s. 12 nor 12.1 of the Residential Tenancies Act applies in this case.

[6] Applying the regular rules of statutory interpretation, the ordinary words of s. 12 require landlords to provide a copy of the lease to tenants at the outset of the tenancy. Once the lease was provided by the initial landlord in 2016, as Ms. Shannon concedes it was, the purpose of section 12 was met. Nothing in the section, or the overall protective purpose of the statute, allows an interpretation that requires each succeeding owner to repeat the task.

[7] Section 12.1 of the statute also does not apply to this tenancy. The tenancy commenced before the prescribed date of April 30, 2018. Subsection 12.1 (3) makes the entire section inapplicable to leases entered into before the date prescribed in the applicable regulation. Under s. 2 of the regulation entitled Tenancy Agreements for Tenancies of a Prescribed Class, O Reg 9/18, the date prescribed is April 30, 2018. Nothing in s. 12.1 (4) makes the remainder of the section applicable to leases excluded from s. 12.1 by s. 12.1 (3).

[8] The Board found that the lawful rent written in the lease was $1,150 rather than the rent immediately before the sale to Mr. Selim of $1,210.81. This is a finding of fact that cannot be challenged on appeal. Ms. Shannon submits that according to the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at para. 37, a “palpable and overriding error of fact” can amount to a reviewable question of law. That is not a correct reading of the decision. In para. 37 of Vavilov, the Supreme Court of Canada held that a palpable and overriding error of fact is reviewable on appeals “[w]here the scope of the statutory appeal includes questions of fact”. Appeals in this case, however, are limited to questions of law. Questions of fact cannot be appealed to this court. A palpable and overriding question of fact is not a question or error of law.

[9] But, even if the Board erred in setting the rent too low, the landlord does not complain and remains prepared to accept the amount set out in the lease. There is no basis for this error to change the outcome of the decision. If anything, the landlord has been deprived of his right to claim the actual, higher rent and he is content with this outcome. This is a case therefore, where, even if there was an error, there was no substantial wrong or miscarriage of justice. In such circumstances, the court is precluded from ordering a new hearing under s. 134 (6) of the Courts of Justice Act, RSO 1990 c C.43.

[10] The tenants also submit that the landlord failed to serve his N4 form on them properly because only one form was served on them both when the landlord was required to serve each of them. The adequacy of service on the facts of a case is a question of mixed fact and law that cannot be appealed. In any event, the purpose of service is to ensure that the parties have notice of a proceeding. There is no doubt that the purpose was achieved in this case.

[11] The tenants also submit that the Board erred in the exercise of its discretion under s. 83 of the Residential Tenancies Act. The court will only review an exercise of discretion where it is based on a wrong principle of law or it is clearly wrong.

[12] The question of whether the removal of the air conditioner was a “serious breach of the landlord’s responsibilities” (or was a breach at all) is a question of mixed fact and law. It cannot be appealed.

[13] The Board considered the relevant factors and decided that in the exercise of its judgment it was not unfair for the tenants to be evicted in all the circumstances of the case. The Appellants are not able to establish that the Board made an error of law in considering the issues or that the decision is clearly wrong. Therefore, this court cannot intervene.

[14] The appeal is therefore dismissed.

[15] We have reviewed the Bill of Costs provided by the landlord. Although the billing rates are reasonable, the amount claimed is at the high end of what a tenant ought reasonably expect on appealing an eviction to this court. In view of the significant pre-hearing process steps that were necessary in this appeal to get the tenants to pay rent pending the appeal, Corbett J. warned the tenants expressly about the costs risk in his endorsement of April 11, 2024. In my view, costs should be determined on the ordinary and reasonable expectation of parties in like circumstances. See Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA).

[16] While the tenants engaged in numerous pre-hearing steps, none of the judges who heard those proceedings reserved costs to the panel. Therefore, the only costs that are before this panel are the costs of the tenants’ proposed review of the order of Tranquilli J. and the costs of the appeal proper.

[17] The tenants required the landlord to fully brief the review motion. In my view, it is fair and reasonable for the tenants to pay the landlord his costs of the review motion on a partial indemnity basis fixed at $2,500 all-inclusive.

[18] In my view, it is fair and reasonable for the tenants to pay the landlord his costs of the appeal on a partial indemnity basis fixed at an additional $10,000 all-inclusive.

[19] Therefore, the tenants are ordered to pay costs to the landlord in the aggregate amount of $12,500 all-inclusive. No costs are awarded to or against the Landlord and Tenant Board.

Myers J.

I agree _______________________________

Mew J.

I agree _______________________________

O’Brien J.

Date: November 25, 2024

CITATION: Shannon v Selim, 2024 ONSC 6576

DIVISIONAL COURT FILE NO.: 47/23

DATE: 20241125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Mew, Myers, and O’Brien JJ

BETWEEN:

NICOLE SHANNON and CHRIS SHANNON, Appellants

-and-

METIN SELIM, Respondent

REASONS FOR DECISION

FL Myers J.

Released: November 25, 2024