CITATION: Ontario Aboriginal Housing Support Services Corp. v. Aho, 2017 ONSC 4529
COURT FILE NO.: CV-16-0361-00
DATE: 2017-07-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ONTARIO ABORIGINAL HOUSING SUPPORT SERVICES CORPORATION
S. Kettle, for the Plaintiff
Plaintiff
- and -
PATRICIA ANN AHO
Self-Represented
Defendant
HEARD: June 19, 2017, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
Overview
[1] Ontario Aboriginal Housing Support Services Corporation (“OAH”) is the owner of 239 Earl Road, O’Connor Township. Ms. Aho resides at 239 Earl Road (the rental property).
[2] OAH seeks various orders and/or declarations aimed at confirming that Ms. Aho is trespassing and must give vacant possession of the premises to OAH.
[3] Ms. Aho is not assisted by counsel.
Facts and History Leading to This Application
[4] Some of the facts do not appear to be seriously disputed.
[5] In October 1987, Ms. Aho purchased a home at what is now described as 5 Ditmars Drive (the mortgaged property). She purchased this property under the Rural and Native Housing program and entered into a mortgage with CMHC.
[6] Since then, the legal entities have changed. In 1999, the provincial and federal governments entered into a social housing agreement which transferred responsibility for the administration of the Rural and Native Housing program to the Ontario Ministry of Municipal Affairs and Housing. In 2006, the Ministry entered into an agreement with OAH to administer the program. In 2009, CMHC transferred all the Rural and Native Housing mortgages to OAH.
[7] In October 2003, after raising health and safety concerns, Ms. Aho moved from the mortgaged property to the rental property so that the property manager for the Ministry could investigate and determine the scope of repairs required for the mortgaged property. At issue in this application are the terms of the oral agreement under which Ms. Aho occupies the rental property. To put this all in context further facts are required.
[8] Ms. Aho deposes that CMHC was to have the home inspected before purchase of the home to be eligible for the Rural and Native Housing program.
[9] Attached as an exhibit to Ms. Aho’s affidavit is a document entitled “Draft Technical Assessment” prepared by a structural engineer from the Social Housing Branch dated July 29, 2004 which Ms. Aho appears to have received through a Freedom of Information Request. That report references an undated house inspection report prepared by a CMHC inspector which apparently identified required repairs. A “note to file” dated September 8, 1987, prepared by CMHC, identified that the unit requires major repairs to bring it up to standard and notes that “no offer will be made to the vendor.” A CMHC Job Requisition dated January 21, 1988 states “due to the inferior type of construction for… I recommend the purchase of the above-mentioned unit not be completed.” The engineer’s report identifies significant problems with the roof, siding, septic tank and well, electrical and heating. Mold is also noted. The engineer concludes as follows:
My review indicates that this unit has numerous health and safety problems dating back to the original construction. All these issues must be rectified to meet codes and standards prior to the tenant moving back. The costs associated with the repairs will be more expensive than a new unit. Options to consider are some form of settlement with homeowner, moving the homeowner to another unit, or demolishing current unit and rebuilding in the new unit. The estimated cost of any of the peace option is $100,000 plus. Immediate action should be taken as all issues are serious health and safety issues and could be tracked back to original construction.
[10] OAH states that Ms. Aho was permitted to stay at the rental property on a short-term basis provided that she continued to make the mortgage payments, that she pay the utilities, and that she return to the mortgaged property as soon as the investigation and repairs were completed.
[11] OAH also states that Ms. Aho posted no trespassing signs at the mortgage property and refused to allow the property manager access to the property to investigate and complete repairs.
[12] Ms. Aho maintains that the agreement regarding her occupancy of the rental property also included the term that all expenses associated with the rental property (maintenance, grass, yard work, snowplowing etc.) were to be paid by the Housing Authority.
[13] Ms. Aho admits posting the no trespassing signs but says that was in consultation with a contractor and the Ministry of the Environment because of the toxic mold contamination. She further deposed that keys for the mortgaged property were turned over to the property manager shortly after she moved.
[14] The payments under the mortgage were subsidized so Ms. Aho was required to pay $95 monthly. In 2004, Ms. Aho was to provide income verification for the subsidy to continue. She did not do so and the subsidy was withdrawn and the mortgage payments increased to $716 monthly. Ms. Aho continued to pay $95 per month until December 2005. Thereafter, she did not make any further mortgage payments. A judgment for foreclosure was obtained in April 2015. Ms. Aho claims that she has not made any payments because the expenses that she has incurred at the rental property exceed what was required under the mortgage. The email correspondence between Ms. Aho’s then counsel to counsel for OAH in September 2011 confirm her position that she would resume mortgage payments once OAH assumed expenses related to the rental property.
[15] So, for about 12 years, Ms. Aho has been waiting for something to happen with her home and has been living rent-free at the rental property. OAH pursued other means to remove Ms. Aho from the premises. An application to the Landlord and Tenant Board in 2016 to terminate the tenancy and evict Ms. Aho failed because the member found that Residential Tendencies Act, 2006 did not apply in the circumstances.
[16] Exhibit 9 to Ms. Aho’s affidavit appears to be an internal Ministry memorandum which includes the following statements:
For the past three years, the client has been housed in one of the RHN rental houses in Thunder Bay due to structural problems in the unit she owns. The ministry moved the client to a rental unit as soon as it was made aware of the problems with her unit. The client can continue to stay in his home until a final settlement is reached.
Ministry staff had determined that the client’s home is seriously contaminated with mold and has other technical issues, such as the plumbing. Based on the ministries technical review, conducted in July 2004, it is clear that the home should be replaced. The cost of repairing the home, however, is prohibited compared to the current market value of the property, so some other solution may make more sense.
[17] Exhibit 16 to Ms. Aho’s affidavit are the first two pages of statements of claim. One is action number 08-CV-43618 and the other is CV-16-0469. The defendant in the first action is the Province of Ontario and the defendants in the second claim are the Rural and Native Housing Program Administrators, OAH and Metis Nation of Ontario. I have no other information about the nature or the status of these actions.
Analysis and Disposition
[18] The rights of parties depend on the terms of the oral agreement. The parties do not agree on the terms and this issue cannot be resolved on this application. Similarly, I find that there is a dispute on the material filed as to whether Ms. Aho prevented the Housing Authority from entering the mortgaged property.
[19] Rule 38.10 provides that I may direct a trial and I do so in this case. Subject to the status of these two actions commenced by Ms. Aho it would appear to be most efficient if these actions were joined with this application so that this long-standing dispute moves forward to resolution.
[20] Before I order terms with respect to the trial of an issue I require the parties to appear before me by teleconference to advise me the status of the actions. It may be that a further teleconference will be required once counsel in the other actions are identified. Case management will likely be of benefit.
[21] The costs of this application are reserved to the judge finally disposing of this action.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: July 26, 2017
CITATION: Ontario Aboriginal Housing Support Services Corp. v. Aho, 2017 ONSC 4529
COURT FILE NO.: CV-16-0361-00
DATE: 2017-07-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ONTARIO ABORIGINAL HOUSING SUPPORT SERVICES CORPORATION
Plaintiff
- and -
PATRICIA ANN AHO
Defendant
DECISION ON MOTION
Newton J.
Released: July 26, 2017
/lvp