Court File and Parties
COURT FILE NO.: DC-20-22 DATE: 20201222
Ontario Superior Court of Justice
BETWEEN:
KERSHAUN SMALLHORN and SANTASIA CHARLES Self-Represented Appellants
- and -
KAMALAKAR GUTTA and VENKATA KRISHNA SAILA VANI GUTTA David S. Strashin, for the Respondent / moving parties Respondents
HEARD: December 15, 2020
Reasons for Decision
Chown J.
[1] This is a motion by the respondent landlords to quash the appellant tenants’ appeal from a decision and review decision of the Landlord Tenant Board (LTB). The motion was advanced on two grounds:
i) The appeal was brought more than 30 days after the date of the order of the LTB.
ii) The appeal lacks merit and is an abuse of process.
[2] The tenants have filed two nearly identical notices of appeal, one for the LTB decision and one for the LTB review decision. These notices of appeal have been treated as one by the court office.
The LTB Decision
[3] The decision under appeal was made by LTB member Randy Aulbrook on March 4, 2020. Mr. Aulbrook’s decision notes that the hearing was called at 10:42 a.m. and only the landlords were present. “The Tenants attended late at 11:30arn and the matter had already been heard and the Landlords were no longer present.”
[4] Mr. Aulbrook found that the tenants had not paid rent for November 1, 2019 forward. He ordered the tenants to pay up the arears and other expenses or move out by March 15, 2020. Failing that, the eviction could be enforced after March 15, 2020. He further ordered that if the tenants paid $10,575 by March 15, 2020 to the Landlord or to the LTB in trust, the order would be void.
The Review Decision
[5] The LTB has a process for review of its decisions. The tenants asked for and obtained a review of Mr. Aulbrook’s decision. That review was conducted by LTB member Sandra Macchione and was dismissed by her after a preliminary review without a review hearing. The first paragraphs of her determinations stated:
i) The Tenants allege that they were not reasonably able to participate in the hearing that took place on February 26, 2020.
ii) The Tenants indicate they had requested a later time a week prior because of a funeral which the Board refused. I reviewed the electronic file and there is nothing to support the Tenants' claim that an adjournment, or rescheduling request was made to the Board.
iii) On the day of the hearing, the Tenant(s) arrived late around 11:30 a.m. as noted on the Order issued March 4, 2020. There is no indication on our case management. System that the Tenants left a message on the day of the hearing about arriving late. The Notice of Hearing indicates parties are expected to arrive at 9:00 a.m. and the hearing did not convene until 10:42 [a.m.] Attending a funeral is not an unexpected incident and the Tenants did not take reasonable steps to inform the Board that they would arrive late nor did they make arrangements to send someone on their behalf. Other arrangements could have been made.
iv) The Notice of Hearing clearly informs the parties that if they can't attend to send an authorized representative and the Tenants did not send anyone.
v) The Tenants also claim there may be an error with the order, but they provide no details or reasons explaining the error. Rule 26.8(e) of the Board's Rules of Procedure states that a request to review must contain sufficient detail of the alleged error. This review request lacks that detail.
Right of Appeal and Test on Appeal
[6] The tenants’ right to appeal these decisions is found in s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, which reads as follows: “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]
[7] The landlord brings this motion under s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which reads as follows: “On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.”
[8] The test for quashing an appeal is high. It must be manifestly devoid of merit: Schmidt v Toronto Dominion Bank, 24 OR (3d) 1 (CA) at para 6; Lesyork Holdings Ltd. v Munden Acres Ltd., 13 OR (2d) 430 (CA).
Order of Justice Fowler Byrne
[9] This motion was heard in two parts. The first part was heard by Justice Fowler Byrne on October 30, 2020 and addressed the question of whether the appeal should be quashed because it was not brought within the required time. That part of the motion was dismissed by Justice Fowler Byrne. She adjourned the balance of the motion to December 15, 2020. Her endorsement also stated:
On consent, and on a without prejudice basis, Ms. Charles and Mr. Smallhorn shall pay rent to the Guttas, in the sum of $2,300 per month, commencing on November 15, 2020 and on the 15th day of each subsequent month until further order of this court.
Non-compliance with Order
[10] The tenants claim to have attempted to comply with this order. They say they sent the money due on November 15, 2020 by email money transfer and gave the landlord the password for the transfer, but for some reason the landlord was not able to deposit the money. They say they gave the landlord the proper password and they can’t help the fact that the landlord can’t get it to deposit. They say they offered cash and the landlord did not want cash. This information was provided without a supporting affidavit.
[11] In contrast, the landlords have filed an affidavit dated November 26, 2020 which states:
At no time have we refused to accept any payment tendered by the tenants. In fact, with respect to the payment ordered by the Court, the tenants purported to send funds by way of an e transfer, however, the password provided was invalid, and the payment could not be accepted. Subsequent attempts to have the tenants resend the e transfer, or to provide a valid, operative password, were not successful.
[12] The hearing of this motion before me was on December 15, 2020 so another rent payment was due that day. The rent is $2,300.
[13] Given the tenant’s explanation of difficulty regarding the email money transfers, and because I wanted to read materials the parties were relying on which had not made it to my attention, I stood this matter down. The tenants agreed to cancel the outstanding email money transfer and to send a new one to the landlords’ lawyer. No password would be required as the landlords’ lawyer is registered for auto deposit. The tenants said they would send $4,600 being the rent due November 15 and December 15, 2020 while I reviewed the materials and dealt with other matters before the court. This would have solved the problem of non-compliance with Justice Fowler Byrne’s order.
[14] On the resumption of the hearing at about 3:00PM, I was advised that the email money transfer had not been sent. The tenants claimed that they had some difficulty with this. They had to put the money in Mr. Smallhorn’s account. They had to wait for Mr. Smallhorn’s mom to come back. He doesn’t have a car. They needed his mom to take him to the bank. In addition, they stated that the rent for December 15, 2020 was not due until 11:59PM and thus at the moment of the hearing it was not yet due. They further stated that the payment would have used their last dollars towards rent at a place they might be evicted from.
Merit of Appeal
[15] There are now many reported decisions in which appeals from the LTB have been held to be manifestly devoid of merit where they do not involve a question of law. Examples include: Jericho Investments Inc v Rankel, [2000] OJ No 3880; Carinci v Gartner, 2007 ONSC 6912 at para 10; Solomon v Levy, 2015 ONSC 2556 at paras 33-34; Eldebron Holdings Limited v Mason, 2016 ONSC 2544 at para 14; White Spruce Apartments v Deschenes, 2016 ONSC 5058; Christo v Woon, 2017 ONSC 5127; Li v Gibson, 2018 ONSC 1347 at para 26; Deschenes v District Realty Management, 2018 ONSC 4891 at para 24; Prasad v Tan, 2018 ONSC 5517 at para 25; Singh v Balogun, 2018 ONSC 7506 at para 29; 7838794 Canada Inc (cob Minto Properties Inc) v Fiscian, 2018 ONSC 7554 at para 18; One Superior Avenue Incorporated v Sheridan, 2019 ONSC 1235 at para 25; Mahdieh v Chen, 2019 ONSC 4218 (Div Ct), at para 8; Maphango v Peel Housing Corp (cob Peel Living), 2019 ONSC 6889 at para 8; Stirling v 399527 Ontario Ltd., 2020 ONSC 1098; Erdan Construction Company Ltd. v Umetsu, 2020 ONSC 1550 at para 10; Wilkinson v Seritsky, 2020 ONSC 5048; Meglis v Lackan, 2020 ONSC 5049 at para 23; Devenne v Sedun, 2020 ONSC 6141 at para 37; Kang v Grant, 2020 ONSC 6934; Sandgecko Inc. v Ye, 2020 ONSC 7245.
[16] In the matter before me, on their face, the tenants’ two notices of appeal do not raise a valid question of law.
[17] As they are self-represented, I took time to try to understand the tenants’ position and the possible merits of their appeal. I have reviewed the entire court file to see if there is something that was not properly articulated in the notice of appeal that might form some basis for a realistic appeal on a point of law. I did not discern anything that amounted to a question of law.
[18] I asked the tenants what they would have said to the LTB had they been at the hearing. They raised an issue (not otherwise contained in the materials) that they had reached an agreement with the landlord for an abatement of rent for the month of November 2019, due to non-repair issues at the rented premises. They did not get this agreement in writing. They disputed the $10,575 calculation of Mr. Aulbrook on this basis. They did, however, acknowledge that they had not paid rent starting November 2019 and that, apart from the abatement of rent for part of November and other non-repair issues, they did owe some rent at the time of the LTB hearing.
[19] The issue of the amount of rent owing and the non-repair issues were questions of fact. The question of whether there was an agreement on an abatement of rent would be a question of fact.
[20] In the notice of appeal and in their submissions to me, the tenants also emphasize that Ms. Charles was not in the country and could not attend the LTB hearing. They acknowledge that Mr. Smallhorn was in the country and that he was late on the day of the hearing. This issue is better characterized as an alleged denial of natural justice for not being able to reasonably participate in the LTB hearing. However, the tenants have not brought an application for judicial review but rather an appeal. I note that, unlike an appeal, an application for judicial review would not bring with it an automatic stay of the eviction proceeding (see the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25).
[21] I note also that the question of whether the tenants were reasonably able to participate in the hearing was the primary issue for the LTB review decision. The LTB review involved determinations of facts about the hearing and review of the LTB’s communications. The finding that there was no serious error by Mr. Aulbrook was a finding of mixed fact and law. Ms. Machionne was required to determine whether, on the facts as she found them, the tenants were able to reasonably participate in the hearing. The tenants say they were not given a chance to participate because Ms. Charles was out of the country, but Ms. Machionne implicitly found that they were for the reasons set out in her decision.
[22] I can discern no question of law raised by the tenants. Therefore, the appeal is devoid of merit.
Abuse of Process
[23] The lease commenced October 1, 2019 and the tenants paid first and last month’s rent at that time. Apart from that, they have not paid any rent. They have effectively been living rent-free for the last year. They profess that they have attempted to pay but said of the landlords, “They’re not accepting our money.” It is an understatement to say this is not credible. I accept the landlords’ evidence that they have never refused to accept a payment tendered by the tenants.
[24] Apart from being very inconsiderate to the landlords, the tenants have not acted in good faith. The tenants’ lack of good faith is demonstrated by:
a) The failure to make any payments towards rent;
b) The failure to make rent payments in accordance with Justice Fowler Byrne’s consent order;
c) The failure to make the payment they indicated on the morning of the hearing that they would make before the hearing resumed;
d) The failure to take any steps to advance the appeal;
e) The apparent failure to recognize or acknowledge any unfairness to the landlord caused by their actions.
[25] I conclude that the tenants brought the appeal or are maintaining the appeal for an improper objective, that is, to live rent-free while the court process plays out. In light of this, the appeal is an abuse of the court’s process.
[26] I have considered whether what appears to be an abuse of process may instead be a manifestation of hardship or poverty on the part of the tenants. It is often hard to know the hardships that others around us face. The pandemic has caused immense hardship for many. However, the written motion record here contains no evidence as to any hardship the tenants may have faced. The tenants did verbally advise during submissions that they face hardship. They said they have two children and two dogs. As indicated, they did state that the payment of two months rent “would have used our last dollars.” They also said they will be out on the street if they are not given time to pay. They further advised that Ms. Charles is at elevated risk if she contracts COVID. None of this information is supported by an affidavit or by any documentation filed with the court.
[27] The tenants asked the court to let them continue to live in the premises until March, stating they would pay rent until then. They did not say they could not pay the rent. They did not tell the court that they could not pay the rent that Justice Fowler Byrne ordered on consent.
[28] Allowing for the fact that the tenants are unrepresented and unfamiliar with court processes, I am not satisfied by the factual assertions they made during their submissions. Their words are not supported by their actions.
Order
[29] The appeal is quashed.
[30] The stay of proceedings is vacated.
[31] If the landlord wishes to pursue costs, counsel may deliver costs submissions by January 7, 2021. The tenants may deliver responding costs submissions by January 15, 2021. The landlord may not deliver reply submissions without leave. The parties’ costs submissions are not to exceed two pages in length (not including copies of offers to settle or other supporting documentation).
[32] Counsel for the landlord may obtain a formal order, if required, without the need for approval from the tenants of the form and content of the order.
Chown J.