Court File and Parties

CITATION: Collins-Neely v. 2540507 Ontario Inc. et al, 2025 ONSC 1171

COURT FILE NO.: DC-24-78

DATE: 2025-02-20

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Cheryl Collins-Neely / Appellant

AND:

2540507 Ontario Inc., CO Renato Meleca KH Paralegal Services, Kelly Hawkes, Corinne Meleca, Landlord Tenant Board / Respondents

BEFORE: Justice James Stribopoulos

COUNSEL: Ms. C. Collins-Neely, acting in person

Mr. S.F. Toole & Mr. A. Spadafora for the Respondents, 2540507 Ontario Inc., Renato Meleca, and Corinne Meleca

No one appearing for the other Respondents

HEARD: February 20, 2025

Endorsement

[1] The Appellant, Ms. Collins-Neely, appeals against declarations and orders made by the Landlord Tenant Board ("the LTB") on September 13, 2024 concerning her residential tenancy at a property owned by the Respondent, 254057 Ontario Inc. (“the Landlord”): see 2540507 Ontario Inc. v. Collins-Neely, 2024 ONLTB 67546.

[2] The LTB declared that Ms. Collins-Neely's tenancy would be at an end as of October 31, 2024. Additionally, it ordered that she vacate the premises by that date. Finally, it authorized the Court Enforcement Office (the Sheriff) to deliver vacant possession of the unit to the Landlord as of November 1, 2024.

[3] The LTB issued these declarations and orders following a hearing before a Board Member, at which a representative for the Landlord and Ms. Collins-Neely testified. The main issue in dispute at the hearing was the validity of an agreement executed by the parties to terminate the tenancy. It was Ms. Collins-Neely's position that the agreement was invalid because she was coerced into signing it.

[4] After hearing the evidence presented and submissions from the parties, the presiding Board Member issued written reasons explaining why she rejected Ms. Collins-Neely's evidence and preferred the testimony of the Landlord's representative.

[5] Based on the evidence, the Board Member determined that Ms. Collins-Neely did not sign the termination agreement under coercion, as she had claimed. Instead, the Board Member concluded that the termination agreement was the result of negotiations initiated by Ms. Collins-Neely, during which the Landlord agreed to pay her $5,000. By the time of the hearing, the Landlord had already paid her $3,750 toward the agreed amount. The Board Member provided detailed reasons, referencing the evidence heard and the exhibits filed, to support this conclusion.

[6] Further, relying on subsection 83(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, the Board Member concluded that it would not be unfair to postpone Ms. Collins-Neely's eviction until October 31, 2024, even though the Landlord had sought immediate enforcement. In coming to that conclusion, the Board Member referenced Ms. Collins-Neely's financial circumstances, her health issues, and the fact that she would need time to find somewhere else to live.

[7] However, the Board Member declined to postpone the eviction date any longer than that, given that under the agreement they had entered, Ms. Collins-Neely had agreed to vacate the premises by August 31, 2024, the Landlord had already taken steps to convert the rental unit into non-residential use, including paying a redevelopment fee and obtaining permits, and had paid Ms. Collins-Neely $3,750 in partial fulfillment of the agreement they had reached.

[8] Subsequently, Ms. Collins-Neely requested a review of the Board Member's September 13, 2024 decision. The Vice-Chair of the LTB conducted a preliminary assessment of that request and rejected it: see 2540507 Ontario Inc. v. Collins-Neely, 2024 ONLTB 70832.

[9] Ms. Collins-Neely now appeals to this court. Her grounds of appeal include a claim that there are "inaccuracies and unfair and discriminating statements" in the LTB's order and that the Board Member failed to acknowledge that she "signed the contract and agreement under duress, which should invalidate the agreement entirely." Finally, Ms. Collins-Neely asserts that the order "is a miscarriage of justice" and has "no remorse or consideration" for how it will impact her, including that it will result in her and her daughter being left homeless.

[10] In her submissions today, Ms. Collins-Neely indicated that she is willing to vacate the premises but needs until the end of the year to do so, given her ongoing health issues and the challenges she faces in securing another residence.

[11] Although a person affected by an order of the LTB may appeal to this court, they can do so "only on a question of law": Residential Tenancies Act, s. 210(1).

[12] Accordingly, this court lacks jurisdiction to hear an appeal from an order of the LTB on a question of fact or mixed fact and law: see Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 31-33; Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.), at para. 26-37; Smith v. Youthlink Youth Services, 2022 ONCA 313, at paras. 16; and Ieraci v. Parsons, 2024 ONSC 2013 (Div. Ct.), at para. 45.

[13] The distinction between questions of law, fact, and mixed fact and law was explained in Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, as follows, at para. 35:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

[14] As a result, this court lacks jurisdiction under the Residential Tenancies Act to intervene on appeal based on questions of fact, even where an appellant claims a factual determination resulted from palpable and overriding error: see Shannon v Selim, 2024 ONSC 6576 (Div. Ct.), at para. 8.

[15] Respectfully, Ms. Collins-Neely's appeal does not raise a question of law. Essentially, she is asking this court to reconsider the evidence presented and the arguments made during the hearing and to replace the findings made by the Board Member with its own findings. However, this is not something the court can do. Similarly, the court cannot review how the Board Member exercised her discretion under section 83(1)(b) of the Residential Tenancies Act or substitute its decision regarding postponing the eviction. Accordingly, this court has no choice but to dismiss Ms. Collins-Neely's appeal.

[16] Nevertheless, in fairness to the Board member whose decision Ms. Collins-Neely challenges, I would be remiss if I failed to note that I can discern nothing improper in the Board Member's reasons. There are no apparent "inaccuracies" or "unfair and discriminating statements" as Ms. Collins-Neely claimed in her Notice of Appeal.

[17] In short, the Board member conducted a fair hearing at which she heard evidence from the parties, received exhibits, and made findings amply supported by the record before her. Finally, she exercised her discretion under section 83(2) of the Residential Tenancies Act to postpone the eviction, with due regard to Ms. Collins-Neely's circumstances and the competing needs of the Respondent.

[18] The appeal, therefore, is dismissed.

[19] However, in the interests of justice, mindful of Ms. Collins-Neely's circumstances and the Respondent's competing interests, I exercise my authority under the Courts of Justice Act, R.S.O. 1990, c. C-43, s. 134(1)(c), and hereby order that the Sheriff not affect Ms. Collins-Neely's eviction before March 13, 2025. Ms. Collins-Neely remains obligated to pay the Respondent rent on the premises until that date on a pro-rated basis for March.

[20] After the court read this endorsement to the parties, it invited them to make submissions as to costs. The Landlord seeks partial indemnity costs on an all-inclusive basis of $6,189.12, which it maintains is fair and reasonable in all the circumstances. Ms. Collins-Neely noted that she received a fee waiver and was somewhat perplexed by the notion that she would be responsible for paying costs to the Respondent.

[21] Ultimately, cost awards should reflect what the court views as a fair and reasonable amount that the unsuccessful party should pay rather than the exact measure of the actual costs to the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24

[22] Mindful of the factors enumerated in Rule 57 of the Rules of Civil Procedure, especially the importance of the issues to the parties, that the appeal was entirely lacking in merit, as well as its corresponding lack of complexity, I am of the view that $4,500 all-inclusive represents a fair and reasonable amount to order in costs for this appeal. Ms. Collins-Neely shall have 30 days to pay that amount to the Landlord.

Signed: “Justice J. Stribopoulos”

Released: February 20, 2025