CITATION: Walters v. Centurion Property Associate Inc., 2024 ONSC 7093
DIVISIONAL COURT FILE NO.: DC-24-322-0000 DATE: 20241217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Njei Gob Walters Appellant
– and –
Centurion Property Associate Inc. and Landlord and Tenant Board, Legal Services Branch Respondents
Self-represented Martin Zarnett and Faith McGregor, for the Respondent
HEARD at Toronto: December 16, 2024
Shore J.
REASONS FOR DECISION
[1] The Tenant appeals the decision of the Landlord and Tenant Board ("LTB"), dated May 3, 2024, terminating the Tenancy Agreement, and granting an eviction order.
[2] The Tenant's grounds for appeal can be summarised as follows:
(a) The Board failed to properly consider his evidence; and
(b) He was not given a fair hearing.
[3] For the reasons below, the appeal is dismissed.
Questions of law:
[4] Under s. 210 of the Residential Tenancy Act, 2006, S.O. 2006, c. 17 ("RTA") the right of appeal exists only on questions of law. An appeal is not a rehearing of the matter before the Board.
[5] On July 12, 2023, as a result of the Tenant's repeated failure to pay rent on the day it was due, the Landlord served the Tenant with a Form N8: Notice to End your Tenancy at the End of the Term.
[6] A hearing was conducted before the LTB on April 24, 2024. Both parties were present and participated in the virtual hearing.
[7] The Board found that the Landlord proved that the Tenant has been paying rent persistently late. There was no dispute by the Tenant that he was late paying rent.
[8] A decision was released on May 3, 2024. The tenancy was terminated after a finding that the Tenant was persistently late in paying rent, contrary to s. 58(1) of the RTA, and that he was in arrears of over $7,000.
[9] Most of the Tenant's submissions in his factum and at the appeal's oral hearing were about the Board's failure to consider the reasons why he was late.
[10] During the hearing before the Board, the Tenant offered explanations for his late payments. The Tenant's evidence before the Board was that he has a moving company, and his busiest time at work is the end of the month. He is paid in cash and the Landlord would not accept cash payments. Therefore, there was a delay between the time that the Tenant deposited his money and the transfer of the money into the Landlord's account. The Tenant also submits that he was late because his truck broke down and he needed to pay for repairs, and he was required to pay for school fees because his sister passed away.
[11] The Tenant submits that the Board failed to consider the reasons for the payments being late.
[12] However, the Board's decision summarizes the reasons for the late payments, as offered by the Tenant. The Board was clearly alive to the issues. The Board found that the Tenant had ample opportunity to make arrangements to pay his rent on time, and that this was not the first time the parties were in court on this issue. This was the third application brought against the Tenant by the Landlord with respect to persistent late payments. The Tenant had previously received relief from eviction.
[13] The Tenant has only raised issues with respect to the Board’s finding of facts. As set out above, the right of appeal is only with respect to questions of law. For this reason, the appeal cannot succeed on these grounds.
[14] The Tenant also submits that the Board erred in finding:
(a) There was no oral agreement between the Tenant and the Superintendent,
(b) His spouse was not a Tenant,
(c) The quantum of arrears, and
(d) That he was to pay the court filing fees, even though he had previously paid court filing fees.
[15] These too are all findings of fact, not questions of law. The Tenant disputes the Board's findings of fact. Those findings are not subject to appeal under s. 210 of the RTA and are therefore, dismissed.
[16] The Tenant did raise two specific issues with respect to questions of law:
(a) Claims of discrimination; and
(b) The Board erred by ordering relief under the RTA for his late payments when the Tenancy Agreement has provisions for relief.
[17] During his submissions on the appeal, the Tenant raised issues of discrimination. For the first time, the Tenant suggested that the Landlord discriminated against him by not offering accommodations because he was black, contrary to s. 2(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
[18] The Tenant did not raise the issue before the Board, and it is improper to raise an argument for the first time during an appeal. Further, the Tenant offered absolutely no evidence to support this claim. The appeal cannot succeed on this ground.
[19] The Tenant submits that the Tenancy Agreement provides for a $20 fee for any late payments of rent. He is prepared to pay the late penalty but submits that because the agreement makes provisions as to what should occur if payments are late, the Board erred by also applying the provisions in the RTA.
[20] Section 3(1) of the RTA provides that the RTA applies "despite any agreement or waiver to the contrary." The Board did not err in law when applying the RTA to this case.
[21] Therefore, the appeal cannot succeed on these grounds.
Procedural Fairness issue:
[22] The Tenant submits that he was not given a fair hearing. His primary grounds are that:
(a) He was not given a right to counsel, and
(b) He was not given a "right to self defense."
[23] During the Court's opening, amongst other general announcements, the Court indicated that there was no duty counsel in Court that day. This was not specific to the Tenant's case. The Tenant's matter was heard in the afternoon. At no time did the Tenant raise the issue of counsel or request an adjournment for any reason. There was no denial of a right to counsel. The Tenant did not raise this issue during the appeal.
[24] I find there is no basis for this ground of appeal.
[25] In his materials, the Tenant submits that he was not given a right to self defense. I understand this to mean that he was not given a full opportunity to present his case. During the hearing, the Board tried to focus the Tenant on the issues to be determined.
[26] The LTB has the authority to control its own process in accordance with s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") and its Rules. The RTA permits the LTB to conduct inquiries it considers necessary before, during, or after a hearing and to question any person concerning the dispute. The RTA does not restrict the LTB's ability to control its process, other than to direct that the LTB adopt the most expeditious procedures that allow for a fair process: s.183.
[27] The LTB's authority to control its own process includes the ability of its members to ensure that its hearings, in accordance with s. 183 of the RTA proceed as expeditiously as possible without compromising fairness. This includes a member's ability to interrupt a party, provide direction to ensure that the hearing is conducted in an efficient manner, define, and narrow the issues to be decided, limit the evidence and submissions on any issue where there has been full disclosure, and question parties to focus the issues and the related evidence on relevant matters: See the SPPA and the RTA.
[28] I find that the Tenant was not denied procedural fairness.
Costs:
[29] The Landlord is seeking costs on a partial indemnity basis in the sum of $3,110 inclusive. The Tenant says he cannot afford to pay costs. I find costs of $2,500 to be reasonable in the circumstances.
Order:
(a) The appeal is dismissed.
(b) The Appellant Tenant shall pay the Respondent Landlord costs in the sum on $2,500 inclusive.
Shore J.
Released: December 17, 2024
CITATION: Walters v. Centurion Property Associate Inc., 2024 ONSC 7093
DIVISIONAL COURT FILE NO.: DC-24-322-0000 DATE: 20241217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Njei Gob Walters Appellant
– and –
Centurion Property Associate Inc. and Landlord and Tenant Board, Legal Services Branch Respondents
REASONS FOR DECISION
Shore J.
Released: December 17, 2024