Court File and Parties
COURT FILE NO.: CV 20 83822 DATE: July 10, 2020
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Jing Yu Holdings Ltd. Applicant – and – Katelyn Ann Dallas Boudens Respondent
COUNSEL: Chun-Yu Lu appearing for the Applicant No one appearing for the Respondent
HEARD: June 26 and July 9, 2020
Reasons for Judgment
JUSTICE SALLY GOMERY
[1] This is an application to enforce an order by the Landlord and Tenant Board (the “Board”). The Board ordered the eviction of the respondent Katelyn Boudens from an apartment owned by Jing Yu Holdings Ltd. (the “Landlord”) at 177 Goulburn Avenue in Ottawa.
[2] Ms. Boudens began renting the apartment on March 1st, 2020. On April 26, 2020, the Landlord’s manager Mr. Chun-Yu Lu learned that Ms. Boudens and her fiancé Sean Salisbury were keeping about 30 snakes, including some pythons, in the apartment. In Mr. Lu’s view, the snakes posed a serious safety threat to the other tenants in the building. Other tenants expressed concern to him that the snakes might get loose and enter their residences through the ventilation or plumbing systems. Three tenants renting other units had temporarily found other places to live, telling Mr. Lu that they do not feel safe so long as the snakes are on the premises.
[3] After visiting Ms. Boudens’ apartment to see the snakes for himself, Mr. Lu delivered an N7 form notice to her terminating the tenancy. The notice required Ms. Boudens to leave by May 15, 2020 on the basis that her behaviour or the behaviour of someone living with her had “seriously impaired the safety of another person and this behaviour occurred in the residential complex”.
[4] When Ms. Boudens failed to leave in mid-May, the Landlord applied to the Board for an eviction order. The Board agreed to hear the application on the basis that it appeared to raise an urgent issue relating to the health and safety of other tenants. A hearing was held by teleconference on May 22, and the Board granted the eviction order on May 26, 2020 (the “Eviction Order”).
[5] Mr. Lu attended the May 22 hearing on behalf of the Landlord and filed photos he had taken of snakes in containers in Ms. Boudens’ apartment as well as other evidence. Ms. Boudens did not attend this hearing or file any evidence with the Board.
[6] After obtaining the Eviction Order, the Landlord applied for an order from this court. A court order is required because, in response to the Covid-19 pandemic, the Chief Justice of the Ontario Superior Court issued a province-wide order on March 19, 2000 suspending any eviction orders by the Board unless the court orders otherwise.
[7] For the reasons set out below, I am granting the Landlord’s application.
Procedural history
[8] On June 22, 2020, I granted the Landlord’s request for an urgent hearing, which was set for June 26 at 2:00pm by Zoom teleconference. My endorsement setting the hearing date and time was served on Ms. Boudens personally on June 23, 2020. It directed her to serve and file any responding materials electronically by no later than June 25.
[9] The hearing was held on June 26 as scheduled. Mr. Lu attended the hearing on behalf of the Landlord. No one appeared for Ms. Boudens and she filed no materials prior to the hearing.
[10] At the hearing, I granted leave to Mr. Lu pursuant to r. 15.01(2) to represent the Landlord, which is a corporation, for the purpose of this proceeding. I am satisfied, based on Mr. Lu’s submissions, that he is an appropriate person to act, because he is the president of the company and manages its rental units, and he represented the Landlord before the Board.
[11] After hearing submissions and reviewing the application record, I told Mr. Lu that I was prepared to authorize the enforcement of the Eviction Order but would need to prepare a written decision.
[12] Immediately following the hearing, I was advised by court staff that Ms. Boudens had attempted to attend the hearing but was unable to do so. After receiving written submissions from her, I convened a further hearing on July 9 to determine (a) whether Ms. Boudens had a valid reason for not attending the hearing on June 26 such that a further hearing on the merits of the Landlord’s motion ought to be held; and (b) taking into account any submissions she might be permitted to make, whether I should order the enforcement of the Eviction Order.
Did Ms. Boudens have a valid reason for failing to attend the June 26 hearing?
[13] Due to an administrative oversight by the court office, Ms. Boudens was not provided with log-in or dial-in instructions for the Zoom hearing on June 26, 2020. She says that she repeatedly phoned the court office on the day of the hearing but got no answer. She eventually reached the Sheriff’s office, but only after the hearing had ended.
[14] The Landlord argues that Ms. Boudens knew that the hearing was scheduled to take place, had access to legal advice and should have informed herself about arrangements to participate in the videoconference. Mr. Lu received a text message from Ms. Boudens’ fiancé, Mr. Salisbury, the day before the hearing that read: “You were warned I can’t wait until tomorrow my lawyer Lawrence Greenspon is going to fuck eat you (sic)”. Despite this, Ms. Boudens apparently did not ask Mr. Greenspon (or, for that matter, Mr. Lu) about how to participate in the hearing.
[15] I find that Ms. Boudens made legitimate, albeit belated, attempts to figure out how to access the June 26 hearing, and that she should have the right to make submissions.
[16] Parties are expected to inform themselves if they have any questions about procedure or attendance at a hearing. In the particular circumstances of this case, however, it would be unfair to deprive Ms. Boudens of an opportunity to participate in these proceedings. She was not given complete information about the hearing process and, due to the Covid-19 health crisis, she and other members of the public have more limited access to court personnel when they have questions. At the July 9 hearing, Ms. Boudens said that she did not get legal advice as she could not afford it.
[17] Both parties were therefore given a further opportunity to file evidence, to testify and to make submissions at the July 9 hearing.
Ms. Boudens’ challenge to the Eviction Order on grounds of natural justice
[18] Ms. Boudens argues that it would be unfair to enforce the Eviction Order because she did not have a chance to make submissions to the Board and is seeking a review of it on that basis.
[19] Ms. Boudens acknowledges that she had notice of the Board hearing. She testified that when she attempted to dial into the hearing, however, she inexplicably had technical problems with both her phone and her internet connection. She also stated that she was given the wrong case number.
[20] Under s. 209(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”), the Board may review a decision or order if a party to the proceeding was not reasonably able to participate in it. A request for review must be submitted within 30 days of the impugned order.
[21] On June 5, 2020, Ms. Boudens emailed the Board requesting a review of the Eviction Order, on the basis that phone and internet problems had prevented her from participating in the May 22 hearing. Despite this, it does not appear that the Board has conducted any review of the Order. Ms. Boudens testified that the Board acknowledged receipt of her June 5 email but has done nothing in response to it.
[22] The Board’s website (http://www.sjto.gov.on.ca/ltb/filing-and-fees/) provides directions for parties seeking to file applications to the Board:
File more quickly and avoid mistakes and delays using LTB e-File. The e-File tool will guide you through the application, step-by-step. You will also be able to schedule the first available hearing date and pay your application fee on our secure site.
You can file your application in person, by mail, or by fax at any LTB office or drop it off at one of 60 ServiceOntario Centres. For a list of these locations, see: Contact the LTB.
[23] There is no provision in these instructions for submitting an application or request for review to the Board by email.
[24] The website furthermore advises that:
In most cases, you must pay a fee to file an application. If you don’t include the fee, the application will be sent back to you.
Payments are accepted in cash, debit card, Visa, Visa Debit, MasterCard, MasterCard Debit, certified cheque (payable to the Minister of Finance) or money order.
You may request a fee waiver if you meet the financial eligibility requirements in the Practice Direction on Fee Waiver. To apply for a waiver, complete the Fee Waiver Request.
[25] There is a list of filing fees associated with various types of applications. A tenant submitting a request for review must pay a filing fee of $58 or submit a form seeking a waiver of the fee if they cannot afford it. Under ss. 196 of the Act, the Board may refuse to proceed if it does not receive a filing fee.
[26] I find that Ms. Boudens has not complied with the Board’s filing requirements for a request for review. I leave open the possibility, notwithstanding the directions on the Board’s website suggesting otherwise, that it might permit filing of a request for review by e-mail. It is however clear that a tenant requesting review must either submit a filing fee or a request for a waiver. Ms. Boudens did neither. In her June 5 email, she simply stated that she was on ODSP and so could not afford it.
[27] Ms. Boudens’ failure to comply with the Board’s filing requirements would explain why, more than a month later, she says that she has not received any substantive response to her June 5 e-mail. The Board concluded almost two months ago that the Eviction Order should issue on an urgent basis. I infer that the Board would address a request for review of the Order by Ms. Boudens with similar urgency, if the request were properly made.
[28] Ms. Boudens has not explained why she ignored the filing instructions on the Board’s website. I find that she has not proved that she has made a genuine attempt to challenge the Eviction Order using the required procedure.
[29] The Board has the power to determine if its orders should be reviewed if it receives a request for review from an affected party alleging that they could not participate in the proceeding. Such a request must however be filed in conformity with the Board’s rules and practice directions. Based on the evidence before me, it did not receive such a request from Ms. Boudens in this case. In these circumstances, I decline to find that the Eviction Order is unenforceable because of a procedural irregularity.
Has the Landlord established that the Order ought to be enforced notwithstanding the moratorium?
[30] In Neumann v. Anderson, 2020 ONSC 3518, Broad J. reviewed the principles that courts have applied in considering whether to enforce eviction orders by the Board during the eviction moratorium. He held that the onus is on the landlord to establish the existence of truly urgent and compelling circumstances that would justify overriding the societal interest that persons continue to shelter in place, in order to prevent the spread of COVID-19.
[31] In Young v. CRC Self-Help, 2020 ONSC 1874 (Div. Ct.), at para. 57, Favreau J. observed that the eviction moratorium recognizes that “everyone has an interest in having a home that allows them to stay healthy and assist in preventing the spread of the virus”.
[32] In Young, as in this case, the landlord served a N7 termination notice to the Tenant under s. 66(1) of the Act, and then applied to the Board for an eviction order after the tenant refused to vacate. The Board concluded that the landlord had satisfied both the normal test for eviction and the higher test being applied during the COVID-19 pandemic, specifically, that there are urgent circumstances which require the eviction of the tenant.
[33] I likewise conclude in this case that allowing Ms. Boudens to remain in the unit gives rise to greater risks to health and safety than permitting her to remain.
[34] Ms. Boudens attacks the Board’s decision on the basis that it mischaracterized the City of Ottawa’s by-law restricting the ownership of pythons in a residential dwelling. Having reviewed the Board’s decision, I find that, although the Board incorrectly described what the by-law prohibits, it would have reached the same conclusion in the absence of the error.
[35] The Board found that the snakes kept in the apartment presented a serious impairment to the safety of other tenants. At paragraph 5 of its decision, the Board referred to a City of Ottawa by-law that restricts the keeping of certain animals:
Paragraph 11(e) of the City of Ottawa’s Animal Care and Control By-Law (2003-77) prohibits the owning of pythons over one metre long. CL [the landlord’s representative] testified that the pythons he saw in the unit were very large and were over one metre long.
[36] This statement is not entirely accurate. Section 83 of the By-Law provides that no person shall keep certain prohibited animals on a temporary or permanent basis. The list of prohibited animals at paragraph 11(e) of schedule B includes:
Any member of the family Pythonidae, including but not limited to the African rock python, the Indian or Burmese python, the Amethystine or scrub python, save and except members of the family Pythonidae reaching an adult length of no greater than two (2) metres.
[37] As a result, the By-Law is both more restrictive and less restrictive than stated by the Board. It does not prohibit “the owning of pythons over one metre long” but rather the keeping of pythons, even on a temporary basis, of pythons reaching an adult length of no greater than two metres.
[38] The Board found that some of the snakes in the Tenant’s unit were pythons over one metre long. Keeping these pythons might or might not violate s. 83 of the By-Law, depending on their actual length and their adult size.
[39] Reading its decision as a whole, however, the violation of the City’s By-Law was just one factor that the Board took into account when it concluded that the snakes were dangerous and presented a serious impairment of safety for other residents. The Board found that:
- there were about 30 snakes in the rental unit;
- some of the snakes were “very large”;
- the snakes in the unit were not kept in secured terrariums but in plastic containers with no lids and, in one case, in the cabinet of a home entertainment unit with a sliding glass door;
- some of the snakes were pythons; and
- according to media reports in New Brunswick and Florida, pythons have escaped from their enclosures, entered neighbouring residences through the ventilation system or plumbing systems, and bitten or killed the occupants.
[40] The Board’s determination that immediate action was warranted was likewise not based solely (or at all) on a finding that the tenant and occupant were in violation of the By-Law. The Board concluded that the tenant and occupant were seriously impairing the safety of other residents in the building by keeping dangerous snakes in unsecured enclosures (para. 12); that the occupant (Mr. Salisbury) was “very unlikely” to comply with a conditional order requiring him to find a new home for his snakes, or to take any direction respecting the snakes (para. 13); and that any other residents in the building who must stay at home as a result of current public health directives are “even more vulnerable than usual” (para. 14).
[41] I am therefore satisfied that the Board’s decision does not contain an error of fact or mixed fact and law that would justify reaching a different conclusion about the safety hazard presented by the snakes in the Tenant’s unit.
[42] I furthermore find that enforcement of the Eviction Order is warranted in this case because the danger to the health and safety of other tenants in the building if Ms. Boudens is allowed to remain outweighs any compromise to her health and safety as a result of the eviction.
[43] Mr. Lu testified that three people in two other units in the building had moved out temporarily because they are scared that the snakes might find their way to their units. The fear that prompted these tenants to leave their homes is not an irrational fear, given the Board’s finding about the absence of secure tanks or terrariums. Allowing the Tenant to remain would give her (and possibly Mr. Salisbury) the means to shelter in place, but at the expense of three other people. The displacement of other tenants from their homes is the opposite of what the moratorium is designed to promote.
[44] In these circumstances, I conclude that the Landlord has established the existence of urgent and compelling circumstances that justify permitting the eviction to proceed.
[45] In addition to any issues arising from the snakes in Ms. Boudens’ apartment, Mr. Lu has expressed fears for his safety due to his interactions with Mr. Salisbury. I have already reproduced the text that Mr. Salisbury sent to Mr. Lu on June 25. Mr. Lu testified that, on June 28, Mr. Salisbury told him that he knows where he lives, that he would look for him and that he would sexually assault him and other members of his family. He produced voice messages, which I accept were recorded by Mr. Salisbury, containing other threats and racial slurs. Finally, Mr. Lu filed a news release from Ottawa Police Services on June 30, 2020, stating that Mr. Salisbury had been arrested on a range of criminal charges the day before, after allegedly pointing a firearm at a security guard in the neighbourhood. Mr. Salisbury was arrested at Ms. Boudens’ apartment.
[46] Ms. Boudens admitted that Mr. Salisbury had been arrested but pointed out that none of the charges had been proven. She also said that Mr. Salisbury is no longer living with her. I do not find these reassurances very satisfying. The tone and content of Mr. Salisbury’s statements to Mr. Lu give rise to legitimate concerns for his safety, whether or not Mr. Salisbury continues to live at the apartment or is found guilty of the criminal charges he now faces.
[47] Even in the absence of these threats, however, I find that eviction is warranted based on the Board’s findings and the impact to other tenants of permitting the Tenant to remain in the apartment.
Conclusion
[48] I conclude that the Eviction Order should be enforced. I therefore order as follows:
(a) The Court Enforcement Office (Sheriff) is directed to proceed with the eviction of the respondent from the residential premises described in the Order of the Landlord and Tenant Board dated May 26, 2020, pursuant to the said Order, notwithstanding the Order of Chief Justice Morawetz dated March 19, 2020 suspending eviction orders;
(b) Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to expedite the eviction process and give vacant possession of the unit to the Applicant on or after August 10, 2020.
[49] The Landlord did not seek costs and accordingly there shall be no costs in respect of this matter.
[50] This decision is effective when made. No formal order is required.
X. S. Gomery J. Justice Sally Gomery
Released: July 10, 2020
COURT FILE NO.: CV 20 83822 DATE: July 10, 2020 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jing Yu Holdings Ltd. Applicant – and – Katelyn Ann Dallas Boudens Respondent REASONS FOR JUDGMENT Justice Sally Gomery