Ravnaski v. Zolis, 2020 ONSC 923

COURT FILE NO.: CV-19-00617747-0000, CV-19-00624557-0000

DATE: 20200212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SACHA RAVNASKI

Applicant

– and –

MIMI ZOLIS, in her capacity as Estate Trustee for the Estate of Kristina Ravnaski

Respondent

Joseph Kary, for the Applicant

Patrick Morrissey, for the Respondent

HEARD: January 15, 2020

REASONS FOR JUDGMENT

Davies J.

A. Overview

1Sacha Ravnaski and Mimi Zolis are the adult son and daughter, respectively, of Kristina Ravnaski, who passed away on July 12, 2017.

2Before Ms. Ravnaski’s death, she was a widow. She lived with her son in a condominium she owned. Mr. Ravnaski paid her $500 in rent per month.

3In her will, Ms. Ravnaski left her estate in its entirety to her daughter, who is now the trustee of the estate.

4On July 25, 2017, Mr. Ravnaski filed a Notice of Objection contesting Ms. Ravnaski’s will. In March 2018, Mr. Ravnaski brought an application for dependant’s support under the Succession Law Reform Act¹.

5The parties agreed to mediate both issues. The mediation did not result in a settlement of Mr. Ravnaski’s claims but the parties agreed to arbitrate “all outstanding matters” in relation to Mr. Ravnaski’s claims.

6The arbitration proceeded in relation to his claim for dependant’s support only. Mr. Ravnaski abandoned his challenge to the will before the arbitration. On March 13, 2019, the arbitrator ordered Ms. Ravnaski’s estate to pay Mr. Ravnaski $500 per month in support for 5 years. The arbitrator also ordered Mr. Ravnaski to vacate the condominium within 90 days.

7Mr. Ravnaski brings this application to set aside the arbitration award. He argues that the order requiring him to vacate the condominium is outside the terms of the arbitration agreement and, in any event, his eviction is a matter that is within the exclusive jurisdiction of the Landlord and Tenant Board because he is now a tenant of the estate. Mr. Ravnaski also argues that the arbitrator did not treat him equally and fairly during the arbitration.

8Ms. Zolis, on behalf of the estate, brings a separate application for an Order that Mr. Ravnaski vacate the property. Mr. Ravnaski argues that because he is a tenant of the estate, this Court does not have jurisdiction to grant the relief sought. He argues that if the estate wants him to vacate the condominium, it must commence eviction proceedings under the Residential Tenancies Act, 2006.²

9The two applications were heard together. There are two issues to be decided.

10First, is Mr. Ravnaski a tenant of the estate such that any request for him to vacate the condominium is governed by the Residential Tenancies Act? The answer to this question will resolve both the estate’s application and part of Mr. Ravnaski’s application to set aside the arbitration award. If Mr. Ravnaski is a tenant of the estate and his tenancy is exclusively governed by the Residential Tenancies Act, the arbitrator did not have jurisdiction to order him to vacate the property and this Court does not have jurisdiction to grant the estate’s application for vacant possession. On the other hand, if Mr. Ravnaski is not a tenant of the estate, the estate is entitled to an order for vacant possession of the condominium. If this Court grants the estate’s application and orders Mr. Ravnaski to vacate the condominium, his application to set aside the arbitrator’s order that he vacate the condominium would be moot.

11Second, regardless of the outcome of the first issue, should the arbitrator’s award be set aside because Mr. Ravnaski was not treated fairly or equally during the arbitration?

12For the reasons that follow, I find that Mr. Ravnaski is not a tenant of the estate. The Residential Tenancies Act does not apply to his occupancy of the condominium. Further, I find that Mr. Ravnaski was not treated unfairly or unequally during the arbitration.

13I, therefore, grant Ms. Zolis’ application for vacant possession of the condominium and I dismiss Mr. Ravnaski’s application to set aside the arbitration order.

B. Is Mr. Ravnaski a Tenant of the Estate?

14If the Residential Tenancies Act applies to Mr. Ravnaski’s ongoing occupancy of his mother’s condominium, the Landlord and Tenant Board would have exclusive jurisdiction to determine all applications in relation to his tenancy, including an application to evict him.³

15The Residential Tenancies Act did not apply to the rental agreement Mr. Ravnaski had with his mother while she was alive, even though he paid her rent. The Residential Tenancies Act does not apply with respect to living accommodation whose occupant shares a bathroom or kitchen facility with the owner.⁴ Mr. Ravnaski’s mother owned the condominium and they shared a kitchen. Mr. Ravnaski’s tenancy was, therefore, not covered by the Residential Tenancies Act while his mother was alive.

16The issue is whether Mr. Ravnaski has become a tenant of the estate since his mother died such that his occupation of the condominium is now governed by the Residential Tenancies Act. The burden is on Mr. Ravnaski to establish that he is a tenant of the estate. The answer to this question turns on three separate issues:

(i) the nature of the agreement between Mr. Ravnaski and his mother;

(ii) the estate’s obligations under the agreement between Mr. Ravnaski and his mother; and

(iii) whether Mr. Ravnaski entered into a new agreement with the estate.

17For the reasons that follow, I find that Mr. Ravnaski had a contract with his mother to live in her condominium for a month at a time in exchange for rent. The estate was required to permit Mr. Ravnaski to live in the condominium for the remainder of the month for which he paid before his mother passed away. Mr. Ravnaski never entered into a contract with the estate that would permit him to continue to live in the condominium after the agreement he had with his mother expired. As a result, he is not a tenant of the estate and has no legal entitlement to stay in the condominium.

a. Nature of the Agreement between Mr. Ravnaski and his mother

18There is no evidence that Mr. Ravnaski and his mother had a written tenancy agreement. To the extent they had an agreement, it was an oral agreement. When interpreting the meaning of an oral contract, the Court must determine the intentions of the parties to the contract based on their words and actions. This is an objective test. Mr. Ravnaski’s subjective intention is not relevant to this assessment.⁵

19The only evidence in relation to the nature of their contract is that Mr. Ravnaski paid his mother $500 per month in rent, which was below market value, and had been since 2013. I have no evidence about any discussions between Mr. Ravnaski and his mother regarding the terms of their agreement.

20The arrangement by which Mr. Ravnaski paid $500 each month to live with his mother in her condominium had been in place for approximately four years before Ms. Ravnaski died. There is, however, no evidence that Ms. Ravnaski had agreed, while she was alive, that Mr. Ravnaski could live with her indefinitely or that he could live in the condominium after her death. In fact, Ms. Ravnaski left her full estate to Ms. Zolis. Ms. Ravnaski did not make any provision in her will to allow Mr. Ravnaski to stay in her condominium after she died or to grant him a life interest in the condominium.

21Based on all the evidence before me, I find that Ms. Ravnaski and her son had an oral contract that allowed him to live in her condominium for one month in exchange for $500 rent.

b. Obligation of the Estate under the Contract between Mr. Ravnaski and his mother

22When Ms. Ravnaski died, the estate assumed her liabilities under contract.⁶ The estate was bound, therefore, to respect the terms of the rental agreement that Ms. Ravnaski had with her son.

23As set out above, Mr. Ravnaski had an agreement with his mother to live in her condominium in exchange for nominal rent, which renewed on a month-to-month basis. There is evidence that Mr. Ravnaski paid, and Ms. Ravnaski accepted, $500 in rent in early July of 2017. The estate was, therefore, required to allow Mr. Ravnaski to stay in the condominium until the end of the month for which he had paid rent, which I am prepared to accept was likely until the end of July of 2017.

24If Mr. Ravnaski was simply renting a condominium owned by his mother, but not living with her, the analysis would be very different. If Ms. Ravnaski owned an income property that she rented out to Mr. Ravnaski, that tenancy would have been subject to the Residential Tenancies Act while she was alive. In those circumstances, the estate would have been bound by the terms of the tenancy agreement in place and any attempt to evict Mr. Ravnaski would be governed by the Residential Tenancies Act.⁷ But that is not the situation here. Mr. Ravnaski’s agreement with his mother was never subject to the Residential Tenancies Act. The death of Ms. Ravnaski did not change the nature of Mr. Ravnaski’s tenancy.⁸

c. Did Mr. Ravnaski enter into a new contract with the estate?

25Mr. Ravnaski swore an affidavit that he made two deposits into his mother’s account after she died: one on July 29, 2017 and the second on September 1, 2017. The amount he deposited was more than the rent he had been previously paying.⁹ He characterizes these deposits as rent. He also says that he tried to make additional payments, but Ms. Zolis closed their mother’s account and refused to accept any payments from him. On the other hand, Ms. Zolis swore an affidavit in which she states that she never received any money from the applicant, either in her personal capacity or in her capacity as the Estate Trustee of Ms. Ravnaski’s estate.

26There was no cross-examination on the affidavits filed by Mr. Ravnaski and Ms. Zolis. I, therefore, have conflicting evidence on whether Mr. Ravnaski deposited money into his mother’s account after her death. For the purpose of this analysis, I am prepared to assume, without deciding, that Mr. Ravnaski made two deposits into his mother's account after she died. The question is whether Mr. Ravnaski can create a tenancy agreement with the estate by depositing money into the account belonging to the estate.

27I find that even if Mr. Ravnaski deposited money for rent into his mother’s account after her death that did not create a lease agreement between him and the estate. As a result, I do not need to resolve the factual dispute about whether the money was deposited or not.

28A valid contract requires offer, acceptance and consideration. In addition, all parties must agree on its essential terms. In other words, there must be a meeting of the minds between the parties. Finally, the parties must, through their words or actions, objectively demonstrate that they consent to the contract. This requirement of mutual consent ensures that each party to the contract understands what is expected of them and others under the contract.¹⁰

29The test for whether there is agreement between the parties is objective, not subjective. In other words, the question is whether a reasonable person in Mr. Ravnaski’s situation would have believed and understood that the estate was consenting a tenancy agreement with him.¹¹

30After Ms. Ravnaski died, Mr. Ravnaski did not approach Ms. Zolis to enter into an agreement for his ongoing occupation of the condominium. To the extent that depositing money into his mother’s account after her death might be characterized as an attempt by Mr. Ravnaski to enter into an agreement with the estate, that offer was rejected. On September 6, 2017, less than two months after Ms. Ravnaski’s death, counsel for Ms. Zolis sent an email to counsel for Mr. Ravnaski indicating that he had until the end of September to vacate the property. The email also says that if Mr. Ravnaski is not prepared to leave the condominium, Ms. Zolis reserves the right to “take such action as may be necessary to protect her interests and those of the estate, including taking action for possession of the property”. This is clear evidence that there was no meeting of the minds between Mr. Ravnaski and the Estate Trustee that he could continue to live in the condominium after the agreement he had with his mother expired following her death.

31After the arbitrator ordered Mr. Ravnaski to vacate the condominium in March of 2019, Mr. Ravnaski sent an email to Ms. Zolis’ lawyer offering to pay $946.00 per month to cover his share of the condominium expenses. Counsel for Ms. Zolis responded by saying that Ms. Zolis had no interest in his offer and reminding Mr. Ravnaski that he was to vacate the condominium by June 11, 2019 in accordance with the arbitration award. This is further evidence that the Estate Trustee never agreed to have Mr. Ravnaski continue to live in the condominium.

32The objective evidence suggests that there was never an agreement between the Estate Trustee and Mr. Ravnaski for him to continue to live in his mother’s condominium in exchange for paying rent. The fact that Mr. Ravnaski deposited money into his mother’s account after her death does not create a binding agreement with the Estate Trustee. One party cannot unilaterally create a binding contract by simply sending consideration to the party with whom they want to contract.

d. Conclusion

33I find that Mr. Ravnaski is not a tenant of his mother’s estate and there has never been a valid tenancy agreement between Mr. Ravnaski and the estate. Mr. Ravnaski’s occupation of the condominium was not governed by the Residential Tenancy Act while his mother was alive and that did not change after her death. The Estate Trustee is entitled to vacant possession of the condominium and Ms. Zolis’ application (CV-19-00624557-000) is granted.

34Given my findings in relation to Ms. Zolis’ application, I do not need to decide whether the order made by the arbitrator that Mr. Ravnaski vacate the condominium was beyond her jurisdiction. That issue is rendered moot by my ruling on Ms. Zolis’ application.

C. Should the arbitration award be set aside because Mr. Ravnaski was not treated equally and fairly?

35The arbitration agreement entered into by Mr. Ravnaski and Ms. Zolis made it clear that the decision of the arbitrator would be final and binding, and not subject to appeal. Nonetheless, the Arbitration Act, 1991 provides that a party to an arbitration can apply to the court to set aside the award on certain grounds, including that the applicant “was not treated fairly and equally”.¹²

36Mr. Ravnaski argues that the arbitration award should be set aside because he was medically incapable to participate and, in the alternative, he was not treated fairly and equally during the arbitration. To address these issues, it is necessary to review in some detail the events leading up to the March 13, 2019 arbitration.

(i) Chronology of Events Leading to the Arbitration

37On February 22, 2019, counsel for Mr. Ravnaski wrote to counsel for Ms. Zolis asking to adjourn the arbitration for medical reasons. A note from Mr. Ravnaski’s doctor was attached to the adjournment request which said that Mr. Ravnaski “is not capable of possibly understanding the process or responding to question[s] in a clear and realistic way”. The doctor said the arbitration should be “postponed indefinitely”.

38Counsel for Ms. Zolis responded immediately. He said that Ms. Zolis was not prepared to consent to postpone the arbitration indefinitely. Counsel did not accept the doctor’s opinion that Mr. Ravnaski was unable to proceed but suggested that a litigation guardian be appointed for Mr. Ravnaski if he really was incapable. Counsel also suggested arranging a conference call with the arbitrator to discuss the matter. No conference call was arranged.

39On February 25, 2019, counsel for Mr. Ravnaski wrote to Ms. Zolis’ counsel and proposed an adjournment to September of 2019. Counsel also wrote that Mr. Ravnaski’s issue “is not with instructing counsel [but] rather going through the process of examination and cross‑examination”. Counsel for Ms. Zolis responded and said he would seek instructions from his client about proceeding with the arbitration as scheduled on the basis that Mr. Ravnaski would not be cross‑examined at the arbitration. Counsel again raised the issue of having a litigation guardian appointed for Mr. Ravnaski if he was incapable.

40On February 26, 2019, counsel for Mr. Ravnaski wrote to counsel for Ms. Zolis and said, “we can continue with the arbitration as set for March 13 if your client is willing to consent to proceeding without cross-examining my client”. Ms. Zolis agreed to this proposal on the condition that Mr. Ravnaski would not present viva voce evidence through examination-in-chief either. Counsel for Mr. Ravnaski agreed. In other words, counsel agreed that Mr. Ravnaski’s case would be presented to the arbitrator in writing.

41Ms. Zolis elected to call no viva voce evidence and to put her case before the arbitrator in writing as well.

(ii) Did the arbitrator err by proceeding with the arbitration given Mr. Ravnaski’s medical condition?

42Mr. Ravnaski now argues that the arbitration award should be set aside because he was medically incapable of participating in the process. I do not accept this argument.

43Section 46(1) of the Arbitration Act lists the grounds on which this court can set aside an arbitration award. One of the enumerated grounds is that a party “entered into the arbitration agreement while under a legal incapacity”. In his Notice of Application, Mr. Ravnaski claims that he was under a legal incapacity when he entered into the arbitration agreement. Counsel abandoned that argument at the hearing of the appeal.

44Incapacity at the time of the hearing is not one of the grounds in s. 46 of the Arbitration Act for setting aside an arbitration award. Nevertheless, the evidence does not support Mr. Ravnaski’s claim that he was incapable at the time of the arbitration. In fact, the evidence suggests he was capable.

45Mr. Ravnaski was represented by counsel at the arbitration. Counsel raised the issue of Mr. Ravnaski’s ability to participate meaningfully in the arbitration on February 22, 2019, three weeks before the arbitration was scheduled to proceed. Counsel for Ms. Zolis raised the issue of appointing a litigation guardian if Mr. Ravnaski was incapable. Counsel for Mr. Ravnaski told counsel for Ms. Zolis that the issue was Mr. Ravnaski’s ability to withstand examination and cross‑examination. Counsel for Mr. Ravnaski also agreed that the arbitration could proceed if he was appropriately accommodated. Those accommodations were made for him. The only inference to be drawn from the correspondence between counsel is that counsel for Mr. Ravnaski concluded that he was capable and that he wanted to proceed with the arbitration on a paper record.

46More importantly, counsel for Mr. Ravnaski did not apply for an adjournment or raise the issue of Mr. Ravnaski’s capacity with the arbitrator. In the circumstances, Mr. Ravnaski cannot complain that the arbitrator had no jurisdiction to proceed because he was incapable. Mr. Ravnaski is presumed to be capable. Having not had the issue of Mr. Ravnaski’s capacity raised with the arbitrator, she was entitled to rely on the presumption that he was capable.

(iii) Did the Arbitrator treat Mr. Ravnaski unfairly or unequally?

47Mr. Ravnaski also argues that the arbitrator did not treat him fairly or equally. He argues that the arbitrator drew an adverse inference from his failure to give viva voce testimony and by rejecting some of his affidavit evidence.

48As set out above, Mr. Ravnaski’s counsel made an agreement with Ms. Zolis’ counsel that he would not provide direct evidence and would not be cross-examined on his affidavits. Mr. Ravnaski made a strategic decision to rely only on the three affidavits he submitted to the arbitrator. There is no evidence that the arbitrator was told about the agreement reached between counsel or the reason for their agreement.

49Ms. Zolis also made a decision not to provide viva voce evidence. She too provided the arbitrator with three affidavits. She was not cross-examined on her affidavits.

50No oral submissions were made by counsel as part of the arbitration.

51In her decision, the arbitrator briefly set out the history of the proceedings. She noted that the arbitration was proceeding only on the issue of Mr. Ravnaski’s application for support under the Succession Law Reform Act. She then wrote:

[Sacha Ravnaski] has decided not to testify at this arbitration. He is the applicant and he has the burden of proof.

Mimi Zolis (“MZ”), the daughter of [Kristina Ravnaski], is the estate trustee and the sole beneficiary of KR’s estate. She is also not testifying at this arbitration. As she does not have the burden of proof and as there is no disagreement as to the assets of the estate, I do not think it is necessary that she testify.

52Mr. Ravnaski argues that, taken together, these two paragraphs demonstrate that the arbitrator drew an adverse inference against him because he did not testify. I do not agree.

53These paragraphs reflect an accurate summary of how the arbitration unfolded and a correct statement of the burden of proof on each party. Mr. Ravnaski did have the burden of proof in relation to his claim for support under the Succession Law Reform Act. To the extent that the evidence he offered by way of affidavit did not satisfy the two-part test for support under that Act, his claim would not succeed.

54The arbitrator did not draw any adverse inference from his failure to give viva voce evidence. To the contrary, she considered and weighed the evidence presented in his affidavits and found that Mr. Ravnaski had established that he was entitled to dependant support. She also considered the evidence in his affidavits on the issue of the quantum and duration of support.

55The arbitrator did reject some of the evidence in Mr. Ravnaski’s affidavit. For example, she rejected his evidence about the current value of the condominium, which was unsupported by any appraisal or opinion. She, therefore, preferred the evidence in Ms. Zolis’ affidavit about the value of the condominium when Ms. Ravnaski died, which was submitted to the court as part of the Application for Appointment of Estate Trustee. The arbitrator was also troubled by Mr. Ravnaski’s expenses in light of his income.

56Mr. Ravnaski now takes the position that he could have explained these issues if the arbitrator’s concerns were raised with him. Mr. Ravnaski chose to not testify in exchange for an agreement by Ms. Zolis’ lawyer that they would not seek to cross-examine him. He cannot now complain that he had relevant evidence that could have addressed the arbitrator’s concerns. He made a strategic choice to forego the opportunity to present viva voce evidence. In exchange he received a significant benefit of not being cross-examined.

57Mr. Ravnaski also argues that his affidavits should have been given greater weight by the arbitrator because of his medical condition, which entitled him to accommodation. There is no evidence that the arbitrator was told about any medical issue or the agreement reached by counsel that he would not be subject to cross-examination. There was nothing unfair about the arbitrator making a decision on the basis of the materials that counsel agreed she could consider.

58The fact that there was no cross-examination does not mean that the arbitrator was bound to accept the full content of each affidavit. In fact, the affidavits have conflicting evidence on some issues. The arbitrator was entitled to assess the evidence in the affidavits and weigh the conflicting evidence. In the end, she was entitled to accept some, all or none of the evidence in the affidavits provided.

59The arbitrator correctly stated the law on the issues before her and carefully assessed the evidence presented. There was nothing unfair or unequal about how Mr. Ravnaski was treated during the arbitration process or in the arbitrator’s assessment of the evidence.

D. Conclusion

60Mr. Ravnaski is not now and has never been a tenant of the estate. His occupation of the condominium is not governed by the Residential Tenancies Act. The estate’s application (CV‑19‑00624557-000) for vacant possession of the condominium is granted.

61In her application, Ms. Zolis asked for an Order that Mr. Ravnaski vacate the property immediately. She also asked for an Order authorizing her to seek the assistance of the Sheriff to secure the vacant possession of the property if Mr. Ravnaski does not voluntarily leave.

62Mr. Ravnaski is ordered to vacate the property within 90 days from today. If Mr. Ravnaski refuses to leave the condominium in compliance with my order, Ms. Zolis, in her capacity as the Estate Trustee, is granted leave to issue a writ of possession in relation to the condominium and require the Sheriff of the City of Toronto (the “Sheriff”) to put her in vacant possession of the condominium. Ms. Zolis, in her capacity as the Estate Trustee, can seek the assistance of the Toronto Police Service, the Sheriff and any qualified and licensed locksmith to obtain and secure vacant possession of the condominium. To the extent that the Toronto Police Service, the Sheriff of the City of Toronto or a locksmith are involved with securing vacant possession of the condominium for the Estate Trustee, they are to be held harmless.

63Mr. Ravnaski’s application (CV-19-00617747-0000) to set aside the arbitration award is dismissed.

64I encourage the parties to try to reach an agreement on costs. If they are unable to do so, Ms. Zolis may serve and file brief written submissions on costs of no more than 5 pages double spaced together with her costs outline on or before February 24, 2020. Mr. Ravnaski may serve and file brief written responding submission on costs of no more than 5 pages double spaced together with his costs outline on or before March 6, 2020. Ms. Zolis may serve and file reply submissions on costs of no more than 2 pages double spaced on or before March 13, 2020 These submissions may be filed by delivery to my attention at Judge’s Administration, room 140 at 361 University Ave, Toronto, Ontario, M5G 1T3.

Davies J.

Footnotes

1. 1R.S.O. 1990, c. S.26
2. 2S.O. 2006, c. 17 ("Residential Tenancies Act")
3. 3Residential Tenancies Act, s. 168(2)
4. 4Residential Tenancies Act, s. 5(i)
5. 5S&J Gareri Trucking Ltd v. Onyx Corp, 2016 ONCA 505 at para. 7
6. 6Benzie v. Hania, 2012 ONCA 766 at para. 33
7. 7TSL-17424-11-SA-IN/TST-18532-11-IN, 2011 20666 (Ont. LTB) at para. 5
8. 8Evans v. Beagna Estate, [2005] ORHTD No. 30 at paras. 3 - 8
9. 9Mr. Ravnaski’s factum states that he “unilaterally increased” the amount he was paying after the death of his mother to cover the monthly maintenance fees for the condominium.
10. 10S.M. Waddams, The Law of Contracts, 7ed (Toronto: Thomson Reuters, 2017), at p. 25.
11. 11Strong v. Wilton Custom Homes Ltd, [2000] O.J. No. 5191 (Gen. Div.) at para. 23; Rahal v. Perdale Developments Corp., [1996] B.C.J. No. 1221 (S.C.) at paras. 37 – 39
12. 12S.O. 1991, c. 17, s. 46 ("Arbitration Act")