Court File and Parties

CITATION: McLeod v. Wigwamen Incorporated, 2024 ONSC 859

DIVISIONAL COURT FILE NO.: 230/23, 270/23 & 463/23

DATE: 20240208

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

JASON MCLEOD Appellant

– and –

WIGWAMEN INCORPORATED Respondent

COUNSEL: J. McLeod, Self-Represented D. Levitt and T. Duggan, for the Respondent K. Snukal, for the Landlord and Tenant Board

HEARD at Toronto by videoconference: November 29, 2023

REASONS FOR DECISION

O’Brien J.

[1] The appellant landlord has obtained orders evicting the tenant, Mr. McLeod, from two units in the landlord’s building. The first eviction order was for non-payment of rent and the second was for committing “illegal acts.” Mr. McLeod lived in one unit while his children and their mother lived in the other.

[2] More specifically, the Landlord and Tenant Board issued an order evicting Mr. McLeod from unit 406 for non-payment of rent in March 2023. The outstanding arrears totaled more than $35,000. Before the time limit for Mr. McLeod to void the order expired in early April 2023, the Board made two orders evicting Mr. McLeod from both unit 406 and unit 108, where his two children and their mother lived, on the basis that he had committed illegal acts. Although the children and their mother lived in unit 108, Mr. McLeod was the only “tenant” of the unit and they were occupants. The Board found that Mr. McLeod had assaulted the landlord’s property manager and stolen his phone in the building’s parking garage. It identified the “illegal acts” as assault and theft.

[3] Mr. McLeod sought review by the Board of the illegal act order regarding unit 406. The review was denied as an abuse of process because both Mr. McLeod and the mother of his children had already unsuccessfully sought to review essentially the identical order pertaining to unit 108. Unit 406 has been re-rented. Mr. McLeod remains in possession of unit 108, although he advised that only the children and their mother are living there.

[4] Mr. McLeod now appeals the three eviction orders and the review order.

[5] In preparation for the hearing in this court, I had read the factum filed by Mr. McLeod’s then counsel. Although counsel attended on the day of the hearing, Mr. McLeod advised that he wished to represent himself. Counsel for the landlord agreed I could review a document Mr. McLeod had separately filed with additional submissions he had prepared. Therefore, I have reviewed and considered both the factum and the additional submissions.

[6] Mr. McLeod submits the Board made a number of errors. He puts significant emphasis on the reasons for decision in his criminal hearing related to the alleged illegal acts, which he seeks to admit as fresh evidence.

[7] I summarize his submissions as follows:

(a) The Board erred in terminating the tenancies for an illegal act because the Ontario Court of Justice acquitted Mr. McLeod of the charges that were the basis for the illegal act findings;

(b) The Board erred in failing to provide reasons responding to his arguments pursuant to s. 83(3) of the Residential Tenancies Act, 2006, R.S.O. 2006, c. 17 (the Act);

(c) The Board erred in failing to weigh all the factors under s. 83(2) of the Act; and

(d) He was denied procedural fairness.

[8] For the reasons that follow, the appeal is dismissed. The central problem with Mr. McLeod’s submissions is he is mostly asking the court to intervene in matters not within its jurisdiction. Section 210 of the Act limits appeals from orders of the Board to questions of law. Mr. McLeod’s submissions largely allege errors of fact, mixed fact and law, or a disagreement with the Board’s exercise of discretion. Unless there is an extricable error of principle, the court has no jurisdiction to intervene in those issues. To the extent Mr. McLeod has raised breaches of procedural fairness, I do not find any breaches to have occurred.

Preliminary Issue: Should the transcript from the criminal proceeding be admitted into evidence?

[9] As a preliminary issue, I address the admissibility of the transcript from the criminal proceeding. Mr. McLeod seeks to have the transcript of reasons admitted into evidence.

[10] To admit fresh evidence on an appeal, the test in Palmer v. the Queen, [1980] 1 S.C.R. 759 must be satisfied: Schram v. Thompson, 2022 ONSC 6922.

[11] I have decided to admit the transcript. The issue in dispute is whether the second element of the test, that the evidence be relevant such that it bears on a decisive or potentially decisive issue, is met. The landlord submits it should not be admitted since this court only has jurisdiction over questions of law and the transcript is relevant only to factual findings regarding the alleged illegal acts.

[12] There are limited circumstances in which an error with respect to factual findings can amount to an error of law. These include where an adjudicator ignored items of evidence that the law required them to consider and where the adjudicator committed an error of law or legal principle during the fact-finding exercise. It is also an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507; aff’d 2022 ONCA 446, leave to appeal granted 2023 17178 (SCC), at para. 28.

[13] In this case, if the court were to find an error of law with respect to the finding that Mr. McLeod committed illegal acts, that error could be decisive of the appeal. The transcript is admitted so I can determine if any error of law arose in the Board’s assessment of the alleged illegal acts.

Did the Board err in its findings about the illegal acts, given the reasons for judgment of the Ontario Court of Justice?

[14] Mr. McLeod submits the Board erred in law by finding he committed illegal acts given that he was acquitted of the criminal charges. He emphasizes that Nathanson J. of the Ontario Court of Justice found that the landlord’s property manager had misled the court. Mr. McLeod also submits the Board’s conclusion that illegal acts occurred was not supported by the evidence.

[15] Although, as set out above, it is possible in limited circumstances for an error of fact to amount to an error of law, I do not find such an error here. First, the criminal proceeding is different from the proceeding before the Board. The criminal court must be satisfied that every element of the offence has been proven beyond a reasonable doubt. By contrast, the Board must be satisfied the tenant has committed an illegal act on a balance of probabilities. A conclusion in a criminal proceeding does not mean the Board is required to reach the same conclusion.

[16] Section 75 of the Act expressly states that the Board may make an order terminating a tenancy for committing an illegal act “whether or not the tenant…has been convicted of an offence.” The absence of a conviction therefore does not demonstrate an error of law on the part of the Board.

[17] Further, in this case, the evidence before the Ontario Court of Justice differed from the evidence before the Board. Nathanson J. was influenced significantly by an event that occurred the day before the alleged offence. The event affected his assessment of the property manager’s credibility. However, this evidence was not before the Board. Also, while Nathanson J. was not persuaded the Crown had established the elements of the offences beyond a reasonable doubt, he also did not find they did not occur. He stated: “To be clear, I am not in a position to make a finding that the thefts or the assault factually did not occur. …I have significant problems with both versions of events.” Overall, Mr. McLeod has not demonstrated the criminal ruling reveals an error of law in the Board’s reasons.

[18] Mr. McLeod’s further submission that the illegal act finding is not supported by the evidence does not raise an error of law. It is not the role of the court to reweigh the evidence or, absent an error of law, determine whether the evidence supports the Board’s conclusion. The property manager testified before the Board about the details of the assault he alleged occurred. Mr. McLeod disagrees with that evidence, but this is not a situation in which there was no evidence that could, if accepted, support the Board’s findings. This ground of appeal is dismissed.

Did the Board err in failing to give reasons in relation to s. 83(3) of the Act?

[19] Mr. McLeod submits the Board erred in failing to provide reasons for not granting mandatory relief from eviction under s. 83(3) of the Act. Subsection 83(3) provides circumstances in which the Board “shall” refuse to grant an application for eviction. Mr. McLeod relies on paragraph (a) under which the Board shall refuse to grant the application because it is satisfied that “the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement.” Mr. McLeod submits the landlord was in serious breach of its maintenance obligations, including with respect to mold in the units.

[20] In the March 31 order terminating the tenancy of unit 406 for non-payment of rent, the Board provided reasons with respect to s. 83(3). In that hearing, Mr. McLeod had attempted to raise issues under s. 82 of the Act. Section 82 permits a tenant, at a hearing by a landlord for an order evicting the tenant, to raise any issue that could be the subject of an application by a tenant under the Act. However, the tenant is required to meet the notice requirements set out in the provision.

[21] The Board found Mr. McLeod did not meet the notice provisions. The Board member stated that Mr. McLeod had not given the landlord notice of his allegations despite the requirement to do so in the Board rules and a previous order adjourning the matter, which resulted in an eight-month adjournment. In that order, the parties were specifically advised to file any evidence and documents at least 20 days before the next hearing date. There is no basis to interfere in this discretionary decision of the Board.

[22] The Board also noted Mr. McLeod had stated the rental unit was not fit for habitation. However, it rejected this evidence because Mr. McLeod had not been in unit 406 for over a year. This meant there was no evidence on the date of the hearing that the landlord was in serious breach of its responsibilities.

[23] Mr. McLeod disputes this conclusion because he says he was illegally locked out of the unit. But the Board found in the March 31 order that, as of the hearing date, Mr. McLeod was still in possession of the unit and had not returned the keys to the unit. I have no basis or jurisdiction to interfere in this factual finding.

[24] The Board explained in its reasons that, given the absence of evidence that the landlord was in breach of its responsibilities, it would not grant relief from eviction under s. 83(3). There was no error of law in this conclusion.

[25] Mr. McLeod also submits that the Board erred in the illegal act orders and the review order by failing to provide reasons for not giving him mandatory relief from eviction under s. 83(3). In the illegal act orders, the Board stated it had considered all the disclosed circumstances under s. 83(2) and found it would be unfair to grant relief from eviction. It did not go on to consider s. 83(3) but there was little to no evidence before it about the landlord being in serious breach of its obligations.

[26] To the extent Mr. McLeod’s submission is that the landlord filed the application in retaliation for Mr. McLeod asserting his rights (under s. 83(3)(c)), the Board’s factual findings that Mr. McLeod committed an assault and theft demonstrated the Board was not satisfied the application had been brought for another purpose. It was not necessary for the Board member to specifically address s. 83(3) in these circumstances. Therefore, there was no error of law.

[27] A request for review is a process by which the Board may review a final order. It is intended to address serious errors in the underlying proceeding. In the review order here, the Board dismissed the request as an abuse of process because both Mr. McLeod and the mother of his children already had both separately requested a review of the identical order but with respect to unit 108. Mr. McLeod disagrees that his request for review was an abuse of process but has not alleged an error of law with this conclusion. In circumstances where the Board dismissed the review as an abuse of process, it was not required to provide reasons with respect to s. 83(3).

Did the Board err in failing to weigh all factors under s. 83(2) of the Act?

[28] Mr. McLeod submits the Board erred in the illegal act orders when it considered all the relevant circumstances under s. 83(2) of the Act. In his submission, the Board member failed to consider that he was an Indigenous man with a disability receiving ODSP and that his daughters lived in unit 108.

[29] Subsection 83(1) allows the Board to refuse an application for an order evicting a tenant unless it is satisfied, having regard to all the circumstances, it would be unfair to refuse. Subsection 83(2) provides that the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).

[30] Absent an error of principle, this court does not have jurisdiction to intervene in the Board’s weighing under s. 83(2). In the illegal act orders, the Board member stated that he had considered all the disclosed circumstances and found it would be unfair to grant relief from eviction. He reached this conclusion after finding Mr. McLeod had committed illegal acts and impaired the safety of the property manager. He also presided over the hearing, which lasted almost four hours and noted that Mr. McLeod appeared employable and capable of finding a new residence to rent. These comments reflected the Board member’s experience with Mr. McLeod, who presents as intelligent and articulate.

[31] Overall, the circumstances Mr. McLeod emphasizes are relevant and important but represent only some of the circumstances the Board needed to weigh. Further, while Mr. McLeod submits the Board erred in refusing to delay the eviction, the reality is the eviction from unit 108 has been delayed significantly by these court proceedings. Mr. McLeod has not identified an error in principle that would allow this court to intervene in the Board’s exercise of discretion.

Was Mr. McLeod denied procedural fairness?

[32] Mr. McLeod alleges he was denied procedural fairness in various ways at the illegal acts hearing. I disagree.

[33] First, he submits the Board breached procedural fairness when it required him to present evidence by sharing his screen. The Board is entitled to make directions to control its own process. The transcript from the hearing demonstrates that Mr. McLeod did present evidence by using the screen sharing function. The requirement to screen share did not constitute a breach of procedural fairness.

[34] Mr. McLeod also submits the recordings from the hearing were not complete and he was unaware the recording was being repeatedly stopped. The transcript from the hearing shows the recording being interrupted when the matter was held down and recalled, which is appropriate. The transcript was completed by a certified transcriptionist. Mr. McLeod has not pointed to specific gaps in the transcript that demonstrate his concerns. Other than his bald allegations, I have no basis to conclude the recordings were incomplete.

[35] Mr. McLeod also alleges the Board failed to accommodate his disability. If Mr. McLeod was seeking an accommodation, he was required to raise his disability with the Board before or at the outset of the hearing. He also was required to specify the nature of the accommodation requested. That did not occur. The issue of Mr. McLeod’s disability did not arise until his closing submissions. He referenced being “on disability” to emphasize his limited income, not in the context of seeking an accommodation. Since Mr. McLeod did not identify or request any accommodation, the Board did not breach any obligations owed to him.

Conclusion and Disposition

[36] Mr. McLeod has not raised an error of law that would justify this court’s interference in the Board’s orders. Therefore, the appeal is dismissed.

[37] The landlord seeks costs of over $8,000. Although Mr. McLeod was entirely unsuccessful on appeal, I understand why he pursued this appeal given the outcome of his criminal proceeding. In addition, I take into account his limited income. I order Mr. McLeod to pay costs to the landlord in the amount of $1,000. In addition, I am mindful that Mr. McLeod’s children and their mother are currently residing in the rental unit. It is not clear how easy it will be for them to find new accommodation. The stay of the Board’s eviction order therefore shall not be lifted until April 8, 2024.

___________________________ O’Brien J.

Released: February 8, 2024

CITATION: McLeod v. Wigwamen Incorporated, 2024 ONSC 859

DIVISIONAL COURT FILE NO.: 230/23, 270/23 & 463/23

DATE: 20240208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

JASON MCLEOD

Respondent/(Appellant in Appeal)

– and –

WIGWAMEN INCORPORATED

Applicant/(Respondent in Appeal)

REASONS FOR DECISION

O’Brien J.

Released: February 8, 2024