CITATION: Renée v. 10887609 CANADA INC., 2024 ONSC 917
DIVISIONAL COURT FILE NO.: Court File No.: 462/23 DATE: 20240212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
D!ONNE RENÉE
Respondent
Tenant/Appellant in Appeal
– and –
10887609 CANADA INC.
Applicant
Landlord/Respondent in Appeal
D!onne Renée, self-represented
Ian P. Katchin and Teodora Obradovic, for the Landlord/Respondent in Appeal
HEARD at Toronto in person: January 23, 2024
Leiper J.
INTRODUCTION
[1] 10887609 Canada Inc., the landlord/respondent in this appeal, has moved to quash the tenant, Ms. Renée’s appeal on the basis that it does not raise a question of law, and alternatively in the basis that it is an abuse of process.
[2] Ms. Renée appealed orders of the Landlord and Tenant Board terminating her tenancy She filed her notice of appeal to this court on August 2, 2023, and received a certificate staying the eviction order. As a result, she has had the ability to remain in the rental unit pending her appeal.
[3] The landlord tendered evidence that the rental arrears were determined by the LTB to be $8,431.20 as of March 31, 2023. Arrears have continued to accrue since that date, as the monthly rent of $1,315.60 has not been paid. Other than a payment of $2,600 made prior to the hearing before the Board and after the landlord filed its application the tenant has not paid her rent.
[4] Ms. Renée disputes that the landlord’s claimed amount of rent is owed by her, however she has not provided the amount which she says is owed, nor has she filed any evidence of having paid any amount of arrears or rent. Ms. Renée’s submissions to the court on the motion, instead focused on the process at the motion, her allegations that she was denied fair process during the Board, a claimed failure on the part of the Board to provide her with the recordings and the record below and her objection to not being permitted to cross-examine the agent for the landlord on the affidavit filed in support of the motion.
[5] The material filed by the tenant was in the form of several emails attaching material and sent to the court, as permitted by prior case management directions, rather than by uploading to CaseLines.
[6] On January 13, 2024, the tenant delivered a 350-page “partial” response to the motion by email attachment. At the hearing, counsel for the landlord advised the court that this email had not been received by the firm. Court records confirmed that this document had been received by the court office on the day it was delivered by email. I arranged for hard copies of this document to be made available to the parties for their use at the motion. Ms. Renée had brought her own copy with her.
[7] The partial response document characterized the landlord’s motion as “frivolous and vexatious” and commenced in bad faith. There are three pages of submissions, followed by 347 pages of emails, photographs and text messages between Ms. Renée and the landlord’s representative describing issues with the unit, the building, repair personnel, proceedings before the Board and rent increases. There is a rent receipt included in these materials which indicates that the landlord received $1,000 from Ms. Renée for the rent in the month of April 2022. Other emails refer to deductions from rent by the tenant for deficiencies in the building affecting her enjoyment of that unit.
[8] The motion to quash was argued before me in person, for a full day. Ms. Renée was assisted by the accessibility coordinator and steps were taken to provide accommodation in the form of seating, breaks and masking in the courtroom.
[9] Following the hearing, I granted Ms. Renée an additional eight days to advise the court of any additional material she had sent, prior to the hearing of the motion which she wished to have considered. She sent several emails in response directly, and then sought a further extension through the conduit of a lawyer who advised the court that although not retained, he was willing to assist Ms. Renée in communicating due to an issue with her cellphone. I granted a further brief extension with a final due date of Wednesday February 7, 2024.
Procedural History at the Landlord and Tenant Board
[10] The initial hearing before the Board took place on March 1, 2023. Ms. Renée did not attend nor was she represented at the hearing. On March 13, 2023, Member Quattrociocchi, terminated the tenancy, unless the tenant voided the Order by fulfilling certain conditions as to payment. Failing meeting those conditions, the order permitted the landlord to enforce the eviction via the office of the sheriff.
[11] On March 29, 2023, the tenant requested a review of the Eviction Order and requested that it be stayed until the request to review was resolved. On March 30, 2023, the Board issued an interim review Order, which stayed the eviction order. That stay order sets out the position of the tenant and provided an explanation as to why she had not attended the hearing on March 1, 2023:
The Tenant submits that they were not reasonably able to participate in the March 1, 2023 hearing. The Tenant explains that they did not receive the Notice of Hearing from the LTB. They first became aware of the hearing on February 24, 2023 when the Landlord sent the Tenant disclosure. On the date of the hearing, the Tenant attempted to connect to the hearing by telephone. The Tenant says that the phoneline disconnected multiple times and she called back multiple times. The Tenant says that ultimately, she was unable to connect into the hearing. The Tenant also submits that the order contains a serious error as not all of the circumstances were considered in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the ‘Act’).
[12] On March 28, 2023, the tenant filed a request to change the hearing format from electronic to in-person. On April 12, 2023, Member Henry, granted the tenant’s request and made the following orders:
LTB staff are directed to schedule the hearing to take place in-person.
If the Tenant’s circumstances changes prior to the hearing date such that they no longer7require an in-person hearing, they shall advise the LTB as soon as possible.
8
If any of the parties require additional accommodation to participate in the hearing, they shall contact the LTB as soon as possible.
The parties are directed to comply with the direction on disclosure that will be set out in the Notice of Hearing failing which they may not be permitted to rely on their evidence at the hearing.
LTB staff and the Landlord are directed to serve the Tenant by postal mail, as well as by email, if available.
If the Tenant requires additional accommodation to participate in the hearing, they shall contact the LTB as soon as possible.
LTB staff are directed to contact the Tenant before the hearing to gather additional information with respect to the Tenant’s request that the LTB provide a couch in the hearing room to address the Tenant’s accommodation needs; and
The Tenant’s request that the LTB hold the hearing in a room with windows that open is deferred to the hearing at which time the Tenant may raise it with the presiding adjudicator.
[13] The tenant’s review request was scheduled to be heard on May 15, 2023. The review hearing was adjourned to July 20, 2023. Member Cho indicated in his reasons of July 31, 2023 that he had changed the location of the hearing to accommodate the tenant.
[14] On July 20, 2023, the review hearing convened. Ms. Renée did not attend. As set out the in the reasons of July 31, 2023, she had advised the Board by email on the day prior to the hearing that she would not be attending the hearing and had filed an appeal with the Divisional Court. Member Cho held found that the tenant had abandoned her request for review, lifted the Board’s stay and confirmed the findings of Member Quattrociocchi.
[15] The tenant’s 24-page notice of appeal was filed on August 2, 2023. The grounds of appeal include the Board’s failure to accommodate her disability, the landlord’s failure to provide adequate notice to her of the proceedings before the Board, failure of the Board to apply s. 83(2) of the Residential Tenancies Act to her circumstances, and general allegations of breaches of the Human Rights Code, the Canadian Charter of Rights and Freedoms, and the Accessibility for Ontarians with Disabilities Act.
Procedural History before the Court
[16] This court held a case conference on August 31, 2023. The case conference was held in person at Ms. Renée’s request. She did not attend and later correspondence confirmed that she had been seeking medical attention at that time. The presiding judge scheduled the landlord’s motion to quash on October 18, 2023, and the appeal date was fixed for November 1, 2023. The landlord served a printed copy of its motion record on the motion to quash on the tenant in September of 2023. A compendium for oral argument, dated October 10, 2023, was also served on the tenant.
[17] On October 10, 2023, the tenant requested changes to the motion and appeal dates, which request was granted. The case management judge directed a timeline for her materials to be filed.
[18] On October 17, 2023, the tenant had missed the timeline for her materials to be filed. The landlord requested an opportunity to move in writing to quash the appeal. The tenant requested more time and was granted an extension. The second hearing date fixed for the appeal (November 3, 2023) was vacated.
[19] A second in-person case conference was convened before the case management judge on November 17, 2023. Following that case conference, and among other directions, the Board was required to produce material to the tenant: these were the audio recordings from the two hearings before the Board and copies of all affidavits and documents filed at the two hearings.
[20] On the issue of the tenant’s ongoing obligation to pay rent pending the appeal and the request by the court that she confirm whether she agreed with the amount in arrears, the directions describe the positions taken by the parties on this issue as follows:
The appellant has refused to confirm their rent, disputes the monthly rent shown in the LTB decision and in landlord counsel’s submissions, submits that there are ongoing problems in the tenancy, submits that the landlord owes the appellant money, and makes other submissions against the prospect that this Court may order than rent be paid pending the hearing of this appeal. The appellant further submits that because I am not deciding the merits of the appeal now, which I am not, there should be no terms regarding rent. The landlord submits that the appellant’s rent was $1,315.60, has risen to $1,348, and that the last rental payment made was in October 2022. The landlord requests that there be interim terms requiring payment of the monthly rent each month and payment of 100% of the arrears.
[21] The case management judge set a schedule for the appeal and for this motion to quash. The directions required the tenant to file any responding materials by January 4, 2024. Those directions set out provisions for accommodations at the motion, and dealt with the issue of rent pending appeal:
Rent: Tenants who commence appeals from the LTB are not entitled to live rent-free pending their appeal. This is even more important when there is a stay of eviction and the tenant’s appeal is not moving forward promptly. The appellant has not provided information about their rent and I do not accept that no rent is owed. Given the position taken by the appellant, I am requiring that the appellant pay the landlord $1,000/month, on the first of each month, pending the determination of the appeal. This does not mean that the rent is reduced. The tenant remains responsible for all rent due and all arrears. The tenant mentioned complaints against the landlord and wants orders against the landlord if they are required to pay rent. If the tenant wants orders against the landlord they may bring a motion for interim terms. The schedule shall not be delayed if such a motion is brought unless the court amends the schedule. The requirement to pay the $1,000 each month is without prejudice to any claims these parties may have against each other. If the appellant fails to make the $1,000/month payments, the landlord may request that the automatic stay of the eviction order be lifted by delivering an affidavit about non-payment and making that request. That request may be made no earlier than January 4, 2024.
[22] By way of further case management directions issued December 20, 2023, the tenant was granted a further extension to file her material. She was directed to raise any dispute relative to documents outstanding from the Board at the time of the hearing of the motion.
[23] The motion proceeded with the preliminary issue of whether the tenant would be permitted time to cross-examine the landlord’s affiant, Lesley Black, on her affidavit in support of the motion to quash the appeal, which was sworn on August 23, 2023. I turn to that issue now.
Preliminary Issue: Motion to Cross-Examine the Landlord’s Affiant
[24] The landlord’s affidavit in question was served on September 1, 2023. The tenant’s written response to the motion to quash of January 13, 2024, alleged that the affidavit provided “false and misleading information.” The written response states that “The only thing I can do in this Motion that the Court appears determined to allow to take place despite the issues, concerns and prejudices glaringly raised is to cross examine Lesley Black on her Affidavit in-person on January 23, 2024.” Ms. Renee renewed this request at the beginning of the motion.
[25] Ms. Renée submitted that she wished to cross-examine Ms. Black on her role, because the affidavit identified Ms. Black as a director of the landlord. The tenant also submitted that she wished to challenge the amount of rent payable and the accuracy of the index to the compendium which Ms. Renée submitted was an incomplete document. Ms. Renée submitted that she would be taking issue with the use of the word “aptly” by Ms. Black in paragraph 2 of her affidavit which reads:
The background between the parties giving rise to this appeal is aptly set out in the two Landlord and Tenant Board ("LTB") Orders from which the appeal is brought: the "Eviction Order" of Fabio Quattrociocchi, a Member of the LTB, dated March 13, 2023 (LTB-L-044482-22) (Exhibit "A") and the "Review Order" of Harry Cho, Vice-Chair of the LTB, dated July 31, 2023 (LTB-L-044482-22RV) (Exhibit "B").
[26] Ms. Renée submitted that there is more to the background than the decisions below of the Board and that she proposed to cross-examine Ms. Black on her use of the word “aptly.”
[27] The landlord’s position is that the motion should proceed without cross-examination because the proposed subject matter was not relevant to the issues on the motion, the affidavit provided copies of the record below to the court, and the request to cross-examine was untimely. I note that the landlord’s affidavit is largely confined to attaching the findings of the Landlord and Tenant Board, describing the timeline of proceedings, and providing the landlord’s views that the steps taken by the tenant, in the landlord’s representative’s opinion are to attempt to live rent free. The landlord has attached other records from tenancy litigation involving this tenant as part of its submission that this is part of a course of conduct by Ms. Renée. As set out below, I have confined my analysis to the subject matter and history of this tenancy.
[28] Rule 39 of the Rules of Civil Procedure governs evidence on motions and applications. Evidence is permitted by affidavit by virtue of r. 39.01(1). Affidavits based on information and belief are permitted so long as the source of that information is set out in the affidavit: r. 39.01(4). Rule 39.02 provides the opposing party the opportunity to cross-examine on an affidavit filed in support of a motion, subject to the court’s discretion to refuse an adjournment for that purpose where the right to cross-examine has not been exercise with reasonable diligence.
[29] In essence, Ms. Renée’s request to cross-examine Ms. Black would have necessitated a further adjournment of the motion to quash, which has been the subject of two case conferences, and has been rescheduled twice, in circumstances where the tenant has not abided by interim directions to pay rent.
[30] The comprehensive directions of November 17, 2023 do not discuss any request to cross-examine the landlord’s affiant in advance of the motion. It appears from those directions and the material filed with the court by Ms. Renée on January 13, 2024, that this was the first request to cross-examine Ms. Black on her affidavit of August 29, 2023.
[31] I have also considered the nature of the relief sought and the context of this motion. The landlord is relying on the record below, which is known. The relief relates to non-payment of rent, the ongoing stay and the grounds of appeal. These issues are largely not ones of credibility, and Ms. Renée has not filed any material to suggest that these are not the Board’s findings, this is not her notice of appeal or that she has paid rent for the unit in any amount since filing the appeal in this court.
[32] For these reasons, I determined that I should not exercise my discretion to permit an adjournment to allow cross-examination of the landlord on the affidavit filed in support of this motion.
Other Objections to Proceeding with the Motion
[33] Ms. Renée also objected to proceeding in the absence of the material that was before the Board below and which had been the subject of case management directions on November 17, 2023. She raised this issue at the start of the motion and submitted that counsel for the Board, who did not attend, ought to be involved in the motion to explain the issue with the materials. |Her emails, to which she directed the court following the motion and in accordance with the extension of time to so file following the motion, complain that she was not provided this material in an accessible fashion and the Board was disrespecting her rights to receive them.
[34] The landlord takes the position that the recordings and materials before the Board are not relevant to the issues on the motion, because they do not change the grounds of appeal, the non-payment of rent and the findings at first instance.
[35] The record shows that in accordance with my direction to the parties after the motion was heard, counsel to the Board provided the following information concerning the Board’s position on the motion and its prior compliance with the court’s directions to provide material to the tenant as follows:
The LTB did not participate in the hearing of the motion as the LTB takes no position on the motion to quash. However, it has come to the LTB’s attention that the production of records was raised as an issue by the appellant throughout the motion hearing.
While the production of records relates to the appeal and not to the motion to quash, the LTB is taking the opportunity to provide the court and the parties with some information regarding the production of documents.
In this regard, I am attaching six e-mails. They show the LTB complied with requests by the appellant to produce documents, as well as subsequent court directions for further production of the hearing recording and the record. In short, the LTB filed all required materials with the court and served the parties. Specifically, the LTB attaches:
An e-mail from myself to the parties (dated November 23, 2023), copying the court in compliance with the Justice Matheson’s, confirming the appellant was provided a hearing recording and inviting the appellant to let me know if the recordings need to be resent through email AND CD, or just by email;
An e-mail from myself to the appellant, copying the respondent and the court, dated December 21, 2023 confirming the recording was sent and advising that other documents would be sent that day;
An e-mail from Ms. [M.R.] (LTB administrative assistant) to the parties dated December 22, 2023 confirming the recording request was processed, but out of an abundance of caution, all recordings were resent;
An e-mail from [F. C.] (law clerk) to the parties with the record of proceeding prepared by the LTB;
An e-mail from [F.C. ](law clerk) to the court, filing the record of proceeding prepared by the LTB; and
An e-mail from myself to the appellant, copying the respondent and the court, responding to the Tenant’s request to resend an e-mail.
[36] I find that the Board responded to the case management directions, and it should not be faulted for its efforts. Given that the Board’s reasons are in writing and before me, and the issues relate to whether this appeal is an abuse of process and/or devoid of merit based on the grounds asserted, these materials are not highly material, if at all to the issues to be decided. There is evidence that the materials were sent and that follow-up emails were sent to the tenant. The tenant’s emails assert they were not sent, and not received by a lawyer she requested be copied. Given the issues on the motion, I determine that it is not necessary to resolve the dispute that is set out in the emails exchanged between the tenant and the Board but to move on to consider the matter on its merits. I turn to that next.
The Motion to Quash this Appeal
[37] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 grants the court the discretion to quash an appeal that is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal": Zhou v. Rama 2021 ONSC 4659 at para. 17.
[38] An appeal may also be quashed where it is an abuse of process. It is an abuse of process for a litigant to commence an appeal from an order of the LTB for the sole purpose of obtaining an automatic stay of an eviction order, and to avoid their obligations to pay rent by using the court process to “buy time”.
[39] The tenant has a right of appeal to the Divisional Court based on s. 210(1) of the Residential Tenancies Act, 2006, but solely on a question of law. Ms. Renée’s notice of appeal sets out numerous grounds, many of them assertions of law but unconnected to the facts underlying the orders made by the Board in its hearings below. There is no suggestion that the Board did not apply the correct legal test except for s. 83 of the Residential Tenancies Act, 2006 which is made as a bald assertion.
[40] The alleged breaches of Ms. Renée’s accommodation rights are similarly not tied to the Board’s orders and findings which reveal efforts to accommodate, including adjourning the first review hearing, providing an in-person hearing and other accommodations as available.
[41] Other alleged errors of fact and law involve the spelling of the tenant’s name, the descriptions of her attendance in the Board’s reasons and the basis for the finding she abandoned the review request are not questions of law and do not give rise to right of appeal.
[42] Where the notice of appeal raises questions of procedural fairness, this is a question of law. However, a review of the Board’s orders, which all were made without the tenant attending for a variety of reasons including telephone malfunctioning and failure to accommodate and/or bringing an appeal, there is every indication that the Board did make reasonable efforts to accommodate Ms. Renée. Her position is that the Board utterly failed, was deliberately “cruel” and is guilty of ableism throughout. I accept that this is her submission, but I cannot agree that the record as I have set out above, supports such a conclusion. Rather, it appears that Ms. Renée was determined to make requests of the Board, which the Board made reasonable efforts to meet, followed by her expressions of strong dissatisfaction. Her dissatisfaction with these efforts are not sufficient to raise meritorious issues of a denial of procedural fairness.
[43] I quash the appeal on this basis.
[44] Alternatively, I find that permitting this appeal to continue, with the stay of the order granted to the tenant, would amount to an abuse of process. This is because the facts as to the non-payment of rent, including as directed by this court, are not challenged. Ms. Renée has had the benefit of a stay throughout while not paying rent. She has provided no reasonable explanation or proffered no plan by which to remedy the outstanding rent and arrears owed to the landlord.
[45] Under Rule 63.01(5) of the Rules of Civil Procedure, a judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by Rule 63.01(3) does not apply. The Court may grant an order under the provisions of Rule 63.01(5) that the automatic stay of eviction under Rule 63.01(3) be lifted on the basis that an appeal is without merit.
[46] For these reasons, I order that the stay be lifted forthwith, that the appeal is quashed and that the landlord may enforce the order of the Board within 30 days. I also dispense with the tenant’s approval as to form and content of the order.
[47] A copy of these reasons shall be delivered to the tenant in accordance with her most recent correspondence to the court in care of the lawyer who assisted her in communicating to the court following the hearing of the motion, as well as by electronic and first class mail.
___________________________ Leiper J.
Date: February 12, 2024
CITATION: Renée v. 10887609 CANADA INC., 2024 ONSC 917
DIVISIONAL COURT FILE NO.: Court File No.: 462/23 DATE: 20240212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
D!ONNE RENÉE
Respondent
Tenant/Appellant in Appeal
– and –
10887609 CANADA INC.
Applicant
Landlord/Respondent in Appeal
REASONS FOR DECISION
Leiper, J.
Date: February 12, 2024