Court File and Parties

COURT FILE NO.: DC-18-71 DATE: 2018 12 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 7838794 CANADA INC. C/O MINTO PROPERITES INC. v. CHAD PREMPEH FISCIAN

BEFORE: Doi J.

COUNSEL: Martin Zarnett, for the Respondent (Landlord) Chad Prempeh Fiscian, Self-Represented

ENDORSEMENT

Overview

[1] This is a motion by the Respondent landlord to quash the Appellant tenant’s appeal from a decision by the Landlord and Tenant Board ("Board") for lack of jurisdiction.

[2] For the reasons that follow, the motion is granted and the appeal is dismissed.

Relevant Background

[3] On May 29, 2018, the Board heard an application by the Respondent to terminate the Appellant's tenancy for rent arrears. The parties resolved the application with a consent order dated June 4, 2018 directing the Appellant to make payments on his arrears.

[4] After the Appellant defaulted on the payment terms under the consent order, the Respondent applied to end the tenancy and evict the Appellant. On August 15, 2018, the Board made an order terminating the tenancy and evicting the Appellant for arrears on his rent.

[5] By order issued September 11, 2018, the Board dismissed the Appellant's motion to set aside the Board's termination and eviction order issued August 15, 2018.

[6] On September 25, 2018, the Board dismissed the Appellant's request to review its earlier September 11, 2018 order.

[7] The Appellant appealed to this Court from the Board's termination and eviction order issued August 15, 2018. The Notice of Appeal sets out the grounds of appeal which all relate to the Appellant's personal circumstances, his financial situation, and other factual matters. By filing the Notice of Appeal, the Appellant obtained an automatic stay of the Board's termination and eviction order under ss. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, and under Rule 63.01 of the Rules of Civil Procedure.

[8] Notably, the Notice of Appeal does not raise an issue of law.

Relevant Legislation

[9] Subsection 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, C.17, as amended, provides a right of appeal from a decision of the Board on a question of law:

Appeal Rights

210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. [emphasis added]

[10] Subsection 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, allows an appellate court, in a proper case, to quash the appeal:

Power to Quash

134 (3) On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.

[11] Subsection 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides:

Appeal operates as a stay, exception

25 (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

the tribunal or the court or other appellate body orders otherwise.

[12] Rule 63.01 of the Rules of Civil Procedure provides:

Payment of Money

63.01 (1) The delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.

Eviction Order Under Residential Tenancies Act, 2006

(3) the delivery of a notice of appeal from an interlocutory or final order made under the Residential Tenancies Act, 2006 stays, until the disposition of the appeal, any provision of the order,

(a) declaring a tenancy agreement terminated or evicting a person; or

(b) terminating a member's occupancy of a member unit in a non-profit housing co-operative and evicting the member.

Lifting Stay

(5) A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by subrule (1), (3) or (4) does not apply.

Analysis

[13] The moving party Respondent submits that the appeal should be quashed and the stay lifted as: (i) the appeal fails to raise a question of law; (ii) the appeal is devoid of merit; and/or (iii) the appeal is frivolous, vexatious and an abuse of process.

(i) The Appeal fails to raise a question of law

[14] Subsection 210(1) of the Residential Tenancies Act provides a limited right of appeal to this Court from an order of the Board on a "question of law" alone; see Christo v. Woon, 2017 ONSC 5127 at paras 21-22; Solomon v. Levy, 2015 ONSC 2556 at paras 31-33.

[15] As the Board is a specialized administrative tribunal, the legislation limits appeals from the Board's decisions to ensure that the process is "streamlined, timely and cost efficient." Zolynsky v. North Shore Farming Company Limited, 2016 ONSC 2838 at para 8, cited in Christo at para 19.

[16] Questions of law have been described as follows:

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.

Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 SCR 748 at para 35; Solomon v. Levy, 2015 ONSC 2556 at para 32.

[17] It is clear that the Appellant is not raising a question of law on this appeal. Rather, his Notice of Appeal sets out various factual matters for the court to consider which relate to his personal and financial situation and do not pose a question of law.

(ii) The appeal is devoid of merit

[18] Having reviewed the record and heard the submissions of the parties, it is evident that the Appellant is relying on a number of factual matters to support his appeal that do not raise an error of law by the Board, an extricable error in principle, or a palpable and overriding error in its factual findings. Accordingly, I find that this appeal is manifestly devoid of any merit.

(iii) The appeal is frivolous, vexatious and an abuse of process

[19] The Appellant is in arrears of rent and also is paying his rent late. While I am not unsympathetic to his situation, I recognize that the Respondent is experiencing ongoing prejudice by operation of the automatic stay of the Board's order that was triggered by this appeal which I find is manifestly devoid of merit. In the circumstances, I find that this appeal is frivolous, vexatious and an abuse of process. As such, I find that it is fair and just to quash this appeal.

Order

[20] The motion is granted for the reasons above. The appeal is dismissed and the stay is lifted. The Appellant shall vacate by January 2, 2019, after which the Board's order of August 15, 2018 terminating the tenancy and evicting the Appellant may be enforced.

[21] Costs for this motion are fixed at $500.00 inclusive of disbursements and applicable HST.

[22] The Respondent is not required to obtain approval from the Appellant as to the form and content of this order prior to its issuance.

Doi J.

DATE: December 17, 2018