Court File and Parties

COURT FILE NO.: 16-DV-2192 DATE: 2016-08-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

White Spruce Apartments Landlord (Moving Party, Respondent in Appeal) – and – Anne Deschenes Tenant (Responding Party on Motion, Appellant in Appeal)

S. David Lyman, for the Moving Party Alexandre Martel, for the Respondent on Motion

HEARD: June 28, 2016

James J.

Introduction

[1] Anne Deschenes is a tenant in an apartment owned by White Spruce Apartments. She was evicted following a Landlord and Tenant Board hearing on January 22, 2016. Ms. Deschenes (sometimes hereinafter referred to as the tenant) appealed her eviction order to the Divisional Court. White Spruce Apartments (sometimes hereinafter referred to as the moving party or the landlord) brought this motion for an order quashing the appeal on the ground that it is clearly without merit.

[2] The hearing commenced with a request by counsel for the tenant to adjourn the motion because the tenant had not signed the affidavit that was contained in her responding motion record. Her counsel said that she wanted to make changes to the draft that had been sent to her for review but had been too ill to do so. Counsel for the landlord said that he did not object to the draft affidavit being used at the hearing.

[3] The adjournment request was denied. The motion has already been adjourned once at the request of the tenant. In addition, the issue on this motion involves an assessment of whether or not the decision of the Landlord and Tenant Board contains an error of law. A transcript of the hearing before the Board was available for use on this motion. In my view a responding affidavit, asserting factual allegations, would not be critically important to the resolution of the issues raised by this motion but in any event it was considered as part of the evidence on this motion.

The Facts

[4] By way of background, the tenant has resided in the subject premises since 2003. In recent years other tenants have complained about the tenant’s behaviour, which is alleged to have included yelling at people in and about the building, making false claims and making excessive noise.

[5] The tenant suffers from numerous physical and psychological ailments including depression, agoraphobia, chronic pain, insomnia and environmental allergies.

[6] The tenant brought a Human Rights Tribunal claim in 2014 alleging mistreatment and a failure to accommodate. This complaint was resolved by way of a mediated agreement in 2015 that included an agreement by the landlord to implement an abatement of the use of scented products by maintenance staff and other tenants and the installation of an intercom system. The tenant then obstructed the orderly installation of the system and was alleged by a neighbouring tenant to have been banging on the wall late at night. In the autumn of 2015 the landlord issued a termination notice.

[7] In or about September, 2015 the landlord changed the carpets in the common area hallways after first ascertaining that the carpet and adhesive would not produce any harmful vapors that may affect the tenant. Documentation to this effect and product samples were provided to the tenant in advance of the installation. The tenant was dissatisfied with the new carpet because of fumes and attempted on several occasions to ventilate the hallways by using fans and opening windows. The tenant also placed an unknown substance in the hallways that prompted odour complaints from other tenants.

[8] The eviction hearing was originally set for December 16, 2015. At the request of the tenant, the hearing was postponed until January 26, 2016. Six other residents of the building came to the eviction hearing to give evidence. The hearing commenced at approximately 10 a.m. but the precise time is unclear. At the request of the tenant she remained in her apartment and declined an opportunity to be connected by telephone to the hearing until it was her turn to testify. Her counsel was present at the hearing. The tenant acknowledged the validity of some but not all the allegations made against her and submitted that being forced to move would be extraordinarily difficult for her. The board issued an eviction order but delayed enforcement until June 30, 2016 to allow extra time for the tenant to relocate to a new apartment.

[9] The tenant appealed the conviction order on the following grounds:

i. By not confining the time of the eviction hearing to the morning because the tenant loses concentration power in the afternoon; ii. Failure of natural justice; iii. An erroneous finding about the substance the tenant was spraying in the hallways of the apartment building; iv. Failure to consider whether the landlord’s efforts to accommodate the tenant reached the point of undue hardship; v. The well-being of the tenant is at risk if forced to move.

[10] Section 210 of the Residential Tenancies Act provides that an appeal lies to the Divisional Court from the Landlord and Tenant Board on a question of law alone. The respondent landlord has brought this motion for an order quashing the appeal on the grounds that the appeal does not raise a proper question of law and is manifestly devoid of merit (See Jericho Investments Inc. v. Rankel).

[11] I agree with the landlord that the notice of appeal raises questions of mixed fact and law, not questions of law alone. Questions of law are confined to a narrow band on the spectrum covering questions of fact, questions of mixed fact and law and questions of law. What constitutes a question of law is often explained by examples of what do not constitute questions of law rather than by providing a comprehensive definition. Typically questions of law involve a lack of jurisdiction or judicial decisions that are not based on the evidence or decisions which are based on a unreasonable assessment of the evidence.

Assessment of the Various Grounds of Appeal

i. Confining the hearing to a morning session

The eviction hearing started in the morning. The precise time is not clear. The tenant requested the opportunity to participate by telephone from her apartment. This request was granted. The tenant’s counsel suggested the tenant be contacted by telephone only when it was her turn to give evidence. This request was granted. When contacted by telephone to give her testimony, the tenant indicated she was able to proceed. At page 71 of the transcript of the hearing before the Landlord and Tenant Board, near the beginning of her examination-in-chief, her counsel asked her if she was okay and she replied yes and was reminded to ask for a break if necessary. It is also not clear when the hearing concluded but I infer from the transcript that the hearing was completed before the lunch recess. It was not an error of law for the hearing to be conducted in the manner in which it proceeded.

ii. Failure of Natural Justice

The tenant was represented at the hearing by a lawyer who had the right to cross-examine the landlord’s witnesses, the right to present evidence on behalf of the tenant and the right to make submissions on her behalf. Her request for accommodations in the manner in which the hearing was conducted was granted. There is nothing in the transcript of evidence from the Landlord and Tenant Board hearing that indicates that the proceeding was unfair to the tenant.

iii. Erroneous Finding Regarding the Spraying of Chemicals

This reference was made in the context of the tenant admitting that she sprayed the hallways of the apartment building with apple juice and essential oils consisting of lavender and lemon oil. One of the substances that was sprayed by the tenant was reported to have had a strong chemical smell like Mr. Clean or Pine Sol. There was evidence to support the finding that chemicals had been sprayed.

iv. Failure to Consider Whether the Efforts to Accommodate Reached the Point of Undue Hardship

The landlord installed new carpeting, an intercom system and implemented new smoking policies around the building in an effort to accommodate the tenant. There was evidence that notwithstanding efforts to accommodate, the tenant was interfering with the rights of other tenants. The tenant’s own objectionable activities, apart from accommodation efforts by the landlord, were an essential component of the Board’s decision to grant an eviction order. The Board was not required to overlook the actions of the tenant and their impact on other residents in assessing whether the landlord had accommodated the tenant sufficiently. When considered in context, the issues were multi-faceted and not solely focused on whether the landlord had met its duty to accommodate.

v. The Well-Being of the Tenant

There was no current medical evidence presented to the Board that the tenant’s health would be seriously jeopardized if forced to move. Assuming, without deciding, that it would be an error of law to evict someone if doing so would put their life at risk, the evidence in this case falls short of establishing such a risk.

Disposition

[12] I find that the appeal brought by the tenant does not raise a question of law and is devoid of merit. An order will issue quashing the tenant’s appeal.

[13] On the issue of costs, the tenant is an ODSP recipient. On a preliminary basis and subject to hearing from counsel, my view is that there should be no order as to costs. However, if the landlord is seeking a costs order, the landlord may deliver a costs outline and bill of costs within 15 days and the tenant shall have 15 days to reply.

The Hon. Mr. Justice M. James Released: August 09, 2016