CITATION: Campbell v. Peel Housing Corporation, 2016 ONSC 7591
COURT FILE NO.: DC-16-128-00
DATE: 2016 12 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DELUE CAMPBELL - and – Peel Housing Corporation
BEFORE: Fairburn, J.
COUNSEL: Cimone Campbell, Appearing on Behalf of Delue Campbell
Martin Zarnett, Counsel Appearing for Peel Housing Corporation
Mary-Jo MacCrae, Representations on behalf of Peel Housing Corporation
HEARD: November 28, 2016
ENDORSEMENT
(A) Overview
[1] Delue Campbell is an elderly woman. She has significant health challenges. Her sight is seriously compromised and, according to her daughter, Cimone Campbell, Delue has been diagnosed with dementia.
[2] Delue Campbell is in the geared-to-income rent program for the Region of Peel. She lives in housing controlled by Peel Housing Corporation, known as Peel Living, one of Peel Region’s housing providers.
[3] On Friday November 25, 2016, Delue Campbell brought an emergency motion to stay an eviction order scheduled to be executed that day. Delue’s daughter, Cimone Campbell, lives in California. She returned home to assist her mother who is incapable of representing herself.
[4] While she attempted to bring the motion to stay the eviction on November 24, 2016, she was ordered to provide notice to Peel Living. Cimone Campbell served Peel Living at 9:05 a.m. on November 25, 2016, by providing the Notice of Motion and supporting materials to Cyrina Aska, one of two employees of Peel Living who had sought and obtained the eviction order in the first place.
[5] Peel Living did not attend to respond to the motion. Instead, while the motion was being heard in this court, the sheriff, along with Peel Living, entered Delue Campbell’s residence, changed the locks and vacant possession was granted to the landlord.
[6] Later that day, a retroactive stay of the eviction order was granted and the respondent and sheriff were ordered to immediately turn possession of the residence back to Ms. Campbell. All parties were ordered to appear at 9:00 a.m. on Monday November 28, 2016.
[7] This decision arises from the November 28, 2016 hearing.
(B) The Facts
(i) The Proceeding Before the Landlord and Tenant Board (LLTB)
[8] On June 1, 2016, Peel Living brought an application to terminate Delue Campbell’s residency because she had not paid rent since January. While Cimone had requested a change in the hearing date, and thought the date had been changed, the hearing went ahead in the absence of anyone representing Delue.
[9] On this application, Cimone produced a document that gives the hearing date concerning the eviction of Delue Campbell as June 15, 2016 at 9:30 a.m. While Peel Living seems to dispute the date, pointing to the fact that the file number on the document is different than the number shown on the judgment, it matters not. The document relates to Delue Campbell’s residence at the exact same address. Regardless of how two file numbers became associated to Peel Living’s efforts to evict Delue Campbell, the fact remains that the respondent was given a June 15, 2016 date for the hearing. Notwithstanding this fact, the hearing went ahead on June 1, 2016 in Delue Campbell’s absence.
(ii) The LLTB’s Decision: June 2, 2016
[10] The LLTB found that Delue Campbell’s rent had not been paid since January 1, 2016. The tenancy between the landlord and Ms. Campbell was terminated and the tenant was required to move out before June 13, 2016, failing which she could be evicted by the sheriff. No date was provided for the eviction. This was a matter left to the discretion of Peel Living.
[11] To avoid being required to move out or evicted, Delue Campbell was required to pay $5,894 before June 13, 2016. Upon receipt of payment, the order for eviction would be void.
[12] If the payment was received after June 13, 2016, the LLTB granted Ms. Campbell the right to bring a motion under s. 74(11) of the Residential Tenancies Act to set aside the effect of the eviction order. As for the latter form of relief, the reasons read as follows:
The Tenant may make a motion to the Board under subsection 74(11) of the Act to set aside this order if they pay the amount required under that subsection on or after June 14, 2016 but before the Sheriff gives vacant possession to the Landlord. The Tenant is only entitled to make this motion once during the period of the tenancy agreement with the Landlord.
[13] It is not in dispute that within days of the LLTB’s decision being released, an initial payment of $4,000 was made. By the middle of June, a further payment of $1,000 was received by the tenant, leaving $895 outstanding under the LLTB’s decision.
[14] Cimone Campbell says that she paid the $5,000 on behalf of her mother. She says that she was left with the impression that the order pertaining to eviction was “voided” when the $5,000 was paid. She said that someone from the Region of Peel informed her of this fact. Cimone Campbell further stated that she has been making efforts to have Peel Living reconsider the amount of her mother’s rent because she pays on a double occupancy basis, when in fact she is a single woman living alone. Caregivers attend to assist with her daily physical needs.
[15] At the hearing of the application on November 25, 2016, Cimone Campbell was asked if she could pay the outstanding amount owing on the LLTB order, $895. She said that she could do this right away. The matter was held down for a short while to permit the Campbells an opportunity to pay in full.
(iii) The Ongoing Issue of Rent
[16] In August 2015, Delue Campbell’s rent was recalculated to $944 per month. It is not in dispute that this amount is based on the understanding that Delue Campbell’s husband is also living in the residence. He is not.
[17] Because of a variety of issues, including an allegation of abuse, it is said that Mr. Campbell no longer lives with Delue Campbell. As such, she is the sole occupant of her residence, managed under Peel Living. Cimone Campbell says that her mother receives a total of $750 per month in social assistance and simply cannot afford the $944 double occupancy amount she is being charged.
[18] While there was an effort to have the amount of rent reassessed before the LLTB decision, Ms. Campbell received a letter from the Region of Peel, dated April 28, 2016, stating that she had missed the 30-day period in which to appeal a geared-to-income rent decision. The author noted her regret that she was unable to assist because of the passage of time. I read this letter to mean that because Delue Campbell missed a period within which to appeal the assessment based on double occupancy, even though she is a single occupant of the residence, Peel Living and the Region of Peel will continue to charge her at a double occupancy rate.
[19] Peel Living maintains that Delue Campbell has not paid her rent from the date of the LLTB decision. This does not seem to be in dispute.
(iv) The Application to Stay the Eviction Order: November 25, 2016
[20] As above, when the application to stay the eviction order first came before this court, Trimble J. required that notice be given to the respondent. Notice was effected at 9:05 a.m. on November 25, 2016. The person who received notice is the same person who had sought and obtained the eviction order.
[21] Despite notice of the application having been given to Peel Living, the sheriff entered the Campbell residence at 1:38 p.m. and delivered vacant possession to the landlord. This was after the substance of the motion had been argued and the Campbells were attending to pay or had paid the outstanding $895 to Peel Region.
[22] When the information regarding the eviction was brought to the court’s attention, the sheriff’s officers who entered the Campbell residence were asked to attend court at 3:00 p.m. They said that they had been advised by Peel Living about the motion, but were not informed that it was being heard that day. The officer who addressed the court said that he had contacted his office, but that sheriffs have a “directive” that in order to “disengage from an eviction”, or to “stay an eviction”, their “office has to obtain an issued and entered order”. Only this will give them “authority to disengage”. Given that this court had not yet given an order, the officer suggested that the sheriff was duty bound to proceed with the eviction. I note that this position is taken despite the fact that the LLTB’s eviction order contained no date upon which it had to be executed.
[23] Given that the outstanding $894 had been paid over the lunch break, meaning that the entire amount owing under the June 2, 2016 LLTB order had been paid, the respondent was ordered to immediately turn the residence back to Delue Campbell. The eviction was retroactively stayed and the parties were ordered to appear on November 28, 2016 at 9:00 a.m.
(C) An Eviction Order Being Executed in the Face of an Application to Stay
[24] At the commencement of the proceedings on November 28, 2016, counsel to Peel Living pointed out that the respondent did not know that the motion to stay was to be heard in court on November 25, 2016. It was suggested that because the Notice of Motion was without a place, date or time, Peel Living did not know that the motion would be brought on November 25th or where it would be heard.
[25] Ms. Campbell disputed this suggestion. She says that she told the person who she served, Ms. Aska, that the motion was being heard that day. She also sent an email to a number of people at Peel Living confirming that she was in court and waiting to see a judge. The email was sent at 10:12 a.m., over three hours before the eviction took place and over two hours before the motion was heard. Among others, the email was sent to counsel for Peel Living (although not yet retained on this matter), and to Mandeep Sangha, the affiant put forward by the respondent on the return date. Notably, Ms. Sangha’s affidavit makes no reference to the fact that service was effected or to the email that she and others received.
[26] I have no doubt that employees of Peel Living who were familiar with the Campbell case, as well as counsel retained by Peel Living on other matters, knew that the motion to stay the eviction of Delue Campbell was happening on Friday, November 25, 2016. Aside from the fact that logic dictates that a motion to stay an eviction will be brought ahead of the eviction, as above, Cimone Campbell placed a number of people on notice. This was done when she served the Notice and Motion and was reinforced when she sent her email a short time later.
[27] After Cimone Campbell brought the email to the attention of the court, rendering the argument that Peel Living did not know that the motion was being heard on November 25th without factual foundation, the respondent then argued that they did not know where the motion was being heard. Even assuming this to be the case, questions about location could have been answered for the asking. No one asked.
[28] Ms. M.J. MacCrae works for Peel Living. She is the manager of Housing Operations and management Services. She was present in court on November 28, 2016 and spoke to the issue. She was present during the eviction and spoke to the sheriff in advance. Ms. MacCrae says that while she had heard about the motion to stay the eviction, she was not made aware by her staff that the motion was to be heard that day. Ms. MacCrae says that she raised the matter with the sheriff and relied on what she was told. She says that the sheriff said that they had to execute the eviction order unless there was a stay of the order. This is consistent with what the sheriff told the court. She says that she was concerned about the matter but deferred to what the sheriff told her.
[29] I accept what Ms. MacCrae has to say in this regard. She expressed concern about what happened and the need to find out what went wrong at Peel Living, in the sense that at least some within the organization seemed to know the motion was to be heard that day. Ms. MacCrae’s candour and expression of concern is appropriate in the circumstances and appreciated by the court.
[30] While it seems obvious, given the history of what happened in this case, it is unfortunately necessary to make the following observation. Where a party and the sheriff are on notice that a motion for the stay of an order is before the court, barring circumstances not present in this case, the order should not be executed. Rather, the party should appear in court and respond to the motion. Where a party is uncertain about the location of the motion, the party should make efforts to discover that location. Respect for the proper administration of justice requires nothing less.
[31] Justice eschews any notion of gamesmanship. In this case, it appears that the responding party and the sheriff were on notice of the motion to stay the execution of the eviction order. Even assuming that those present at the scene of the eviction were not informed by their colleagues that the motion was to be heard that day, inquiries should have been made. At a minimum, the sheriff could have easily done this by checking with the court, the location out of which the sheriff works. There was nothing in the LLTB order that required the sheriff to effect the eviction on any particular day. To pause and show respect for the administration of justice is little to ask or require.
(D) The Continuing of the Stay Application: November 28, 2016
(i) The Positions of the Parties
• Ms. Campbell’s Position
[32] Cimone Campbell appeared as her mother’s agent. She says that the eviction order should be vacated because they have now paid the full amount ordered under the June 2, 2016 order. While she does not dispute the failure of her mother to pay rent since June, she says that her mother simply cannot afford to pay $944 per month. Nor should she. This amount of rent is based on double occupancy and her mother is living alone.
• Peel Living’s Position
[33] The respondent argued that the court make an order evicting Delue Campbell from the residence. There are two reasons offered for this position:
(a) the $895 said to be paid on November 25, 2016 was actually returned to Cimone Campbell and, therefore, the LLTB order has not been fulfilled; and
(b) the arrears in rent preclude the LLTB’s eviction order from being overturned.
(E) Decision
(i) The alleged return of the $895
[34] Peel filed an affidavit of Mandeep Sangha, a tenancy support agent for Peel Housing Corporation, Peel Living. Along with Ms. Aska, Ms. Sangha is one of the Peel Living employees who obtained the original eviction order. She attested to a number of matters, including the following:
I am advised by Cyrina Aska a Collection and Negotiation Officer with Peel Living and do verily believe that apparently Cimone Campbell attended at the Region of Peel’s offices on November 25, 2016 at approximately 2:50 PM and tendered $895.00. The $895.00 was not sufficient to void the Order. Because the Order had already been enforced, the monies were returned to Cimone Campbell. Unfortunately, a receipt may have been issued to Cimone Campbell but these monies were not paid because they were returned.
[35] This is not correct. Cimone Campbell was able to produce to the court a copy of the stamped money order for $895 that she paid to the Region of Peel on November 25, 2016. Only after Ms. Campbell produced proof of payment did Peel Living make inquiries and eventually agree that the $895 had been paid. The money had been accepted – not returned – by the Region. In short, Ms. Sangha’s affidavit is wholly inaccurate on this point.
[36] The entire amount owing under the LLTB order has been paid. While technically speaking the $895 may have been paid after the sheriff and Peel Living had entered the Campbell residence, this matters not. The motion to stay the eviction order was heard before the sheriff entered the residence and was simply being held down for a few hours until the amount was paid, at which time a decision would be given. The eviction order was retroactively stayed. In these circumstances, I find that the amount owing under the LLTB order was paid prior to the eviction taking place. I also find that the retroactive stay of the eviction order puts the parties back in the same position they were in prior to Ms. Campbell’s residence being entered. As such, as it currently stands, the eviction order has not been executed and the LLBT judgment is fulfilled.
(ii) Arrears in rent
[37] As for the respondent’s second argument, it also fails. Peel Living says that because Delue Campbell’s rent is in arrears of $5,943.40, an amount incurred since the LLTB decision on June 2, 2016, the Residential Tenancies Act precludes voiding the eviction order.
[38] This legal argument is set out in the Sangha affidavit at para. 15:
I am advised by our counsel … and do verily believe that in order to void an arrears of rent order pursuant to the Residential Tenancies Act … not just the amount pursuant to the order must be paid but all arrears of rent that accrue from the date of the order to the date of payment must be made in accordance with Section 74 of the RTA.
[39] Section 74(11) of the Residential Tenancies Act maintains that a tenant may make a motion to the Board to set aside an eviction order if the tenant has paid various amounts, including the “amount of rent that is in arrears under the tenancy agreement”. The respondent says that even with the LLTB order fulfilled, Delue Campbell cannot meet the requirements of s. 74(11) of the Act because of the outstanding rent owed. Therefore, she should be evicted.
[40] As above, Cimone Campbell argues that her mother cannot pay the amount of arrears because they exceed her mother’s level of income, all of which is derived through government assistance. She is being charged under the geared-to-income rent program for Peel Region on the basis of double occupancy because her husband’s income has been taken into account.
[41] Owing to a number of issues, including allegations of elder abuse, Delue Campbell’s husband no longer lives at the residence. A copy of his lease for the location where he lives has been produced. I am satisfied that Delue Campbell is a single occupant of the home, yet is being charged under the geared-to-income rent income program on the basis of double occupancy. Cimone Campbell says that her rental arrears need adjustment.
[42] However circumscribed the jurisdictional basis, the respondent acknowledges that the decision on the amount of rent based on double occupancy could be the subject of judicial review. Despite trying to access state funded legal services, Delue Campbell, who has dementia and is represented by her non-legally trained daughter from California, does not seem to have been aware of this fact. Regardless, this course of litigation has not been pursued.
[43] Nor does it seem that Cimone Campbell has attempted to obtain an extension of time in which to appeal the decision to charge rent based on double occupancy.
[44] As well, now that the full amount has been paid under the LLTB decision, para. 9 of the judgment grants Ms. Campbell the right to bring a motion under s. 74(11) to set aside the order. While the chances of such a motion succeeding without all arrears in rent being paid may not be optimal, the order at last grants Delue Campbell the opportunity to bring the motion.
(F) Final Order
[45] In the end, the retroactive stay of the eviction will be maintained for 45 days following release of this judgment, during which time the parties are encouraged to discuss the matter and attempt to achieve a satisfactory and equitable resolution to all. While the LLTB order has been complied with, new rental arrears have accrued. This is because Delue Campbell, while still being required to pay on the basis of double occupancy, is living as a single person. Of course, it cannot be ignored that she has paid no rent, even on a diminished basis.
[46] I am hopeful that the parties may be able to agree on how to move forward in a way that suits all interests. Arrears in rent will have to be paid, but it may be that they are calculated differently. Alternatively, Delue Campbell may decide to challenge the Service Manager's decision by way of judicial review. I make no comment on the merits of any such approach. She may decide to request an extension of time within which to appeal the decision to charge her rent based on double occupancy and, in the circumstances of this case, the Service Manager may consider granting that application. She may also bring an application under s. 74(11) of the Residential Tenancies Act. Regardless, Ms. Campbell should attempt to seek out and obtain state funded legal services. This should be done immediately.
[47] The stay of the eviction order will continue for a maximum of 45 days. If nothing has been done after 45 days, then an eviction may proceed. If steps have been taken by Delue Campbell to remedy the situation, then the parties may appear before me to discuss whether the stay should continue.
[48] If the parties are able to agree upon an appropriate path forward, there will be no need to appear before me, although I will continue to make myself available should the need arise.
Fairburn J.
DATE: December 5, 2016
CITATION: Campbell v. Peel Housing Corporation, 2016 ONSC 7591
COURT FILE NO.: DC-16-128-00
DATE: 2016 12 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DELUE CAMPBELL - and – PEEL HOUSING CORP
BEFORE: Fairburn, J.
ENDORSEMENT
Fairburn J.
DATE: December 5, 2016