COURT FILE NO.: CV-20-00000053-0000
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MATACHEWAN FIRST NATION
Applicant
– and –
LORETTA REEB and RANDY REEB
Respondents
J. Morales, for the Applicant
Unrepresented
HEARD: October 12, 2021
REASONS FOR JUDGMENT
WILCOX J.
INTRODUCTION
[1] Loretta Reeb entered into a Lease/Rental Agreement (the agreement) dated December 11, 2017 with Matachewan First Nation (MFN) for a residential unit, house 34 on Matachewan First Nation (the premises). Her husband, Randy Reeb, was listed on the agreement as a resident.
[2] The applicant MFN brought an Application dated November 24, 2020, seeking possession of the premisses and other relief on the grounds of several alleged breaches of the agreement. The Application was heard on October 12, 2021. The applicant’s evidence was uncontroverted.
[3] Loretta Reeb did not attend the hearing. Randy Reeb did. He confirmed having received the application documents, claimed that the respondents had evidence to support their case, but acknowledged that the respondents had not served and filed it.
NOTICE
[4] The respondents had the opportunity to defend the matter, but did not.
[5] In her affidavit of October, 2020, Marilyn Groulx, band manager for MFN, deposed that MFN had repeatedly over several months warned Loretta Reeb in writing about arrears of rent and other breaches and of eviction proceedings. Incomplete efforts were made to bring the rent into good standing.
[6] The Notice of Application was served personally on Loretta Reeb on December 1, 2020. A pre-hearing teleconference was held on December 18, 2020. Loretta Reeb and Randy Reeb attended. A schedule was made for the service of the applicant’s and of the respondents’ documents. Among other things, the respondents’ documents were to be served and filed by February 15, 2021. The respondents’ email address for service and telephone number were confirmed.
[7] The applicant’s Application Record, Factum and Book of Authorities were served as arranged by January 15, 2021. The application had been amended to include Randy Reeb as a party.
[8] The only document served (but not filed) by the respondents was a Notice of Intent to Defend, which was accepted in lieu of the appropriate Notice of Appearance, dated February 18, 2021, three days after the deadline.
[9] At the December 18, 2020 conference, provision had been made in the schedule for examinations to be done by April 1, 2021, subject to any request for extension from the respondent’s lawyer, as they were seeking counsel. The respondents did not retain counsel, nor did examinations take place.
[10] A further teleconference took place on April 1, 2021 at the request of the applicant’s counsel, as nothing had been done since service of the Application Record. The respondents were present. Loretta Reeb spoke for them initially, but did not continue as she was in some distress. The respondent’s mother/mother-in-law, Tina Reeb, spoke for them. It was agreed that another teleconference would be scheduled. It took place on June 24, 2021. The respondents failed to appear, although given notice by the court at the email address previously provided and at the one Loretta Reeb had subsequently provided to the court. Loretta Reeb had contacted the court on March 16, 2021 with the new email address. The court directed the applicant’s counsel to obtain from the trial coordinator a hearing date for about ninety days out. He would serve notice of that hearing date together with hard copies of the Application Record, Factum and Book of Authorities on both respondents and file Affidavits of Service. The respondents would have sixty days from the date of service on them to serve and file any responding materials. Furthermore, the hearing would be by Zoom, with the option to attend by telephone. The Zoom and telephone information were to be included in the Notice of Hearing served on the respondents.
[11] The respondents were served personally with the June 24, 2021 Endorsement, the Notice of Hearing, and the hard copies on August 5, 2021.
[12] The court sent the Zoom coordinates for the October 12, 2021 hearing to Loretta Reeb’s email on August 13, 2021 and by letter of that date to each respondent at the address that both had been previously served at on August 5.
[13] Confirmation of the October 12, 2021 Zoom hearing was sent to Loretta Reeb’s email address on October 5, 2021.
JURISDICTION
[14] The first issue involves the court’s jurisdiction to hear this matter. The respondents have at times questioned that jurisdiction.
[15] MFN has the capacity of a band within the meaning of the Indian Act, RSC 1985, see I-5. The respondent, Loretta Reeb, is a member of MFN. As previously noted, MFN entered into a Lease/Rental Agreement on December 11, 2017 with Loretta Reeb.
[16] I am satisfied that I have jurisdiction to deal with this case. It involves a contract between MFN and Loretta Reeb, which MFN is attempting to enforce. Similar situations have been dealt with in previous cases. MFN’s counsel submitted several cases on point.
[17] As an aside, MFN has tried to evict the respondents through the Landlord and Tenant Board. However, the Board found that it had no jurisdiction, stating that, “the cases show that provincial laws have little or no application on Indian reserves. Specifically, provisions in provincial landlord and tenant legislation concerning the occupation and possession of rental units, including rules governing evictions, do not apply on reserves.”
[18] The Ontario Court of Appeal held in Tyendinaga Mohawk Counsel v. Brant[^1] that the Superior Courts have plenary and inherit jurisdiction to hear all cases that come before them, as long as an exception is not specified by Parliament. The court noted, “even in a regime established for colonial purposes and objectives such as the Indian Act, fairness in law requires that the legal rights created for Indian bands and Indians are to be afforded a legal process to obtain a remedy”.
[19] In TeleZone Inc. v. Canada (Attorney General)[^2], the Ontario Court of Appeal stated at paragraph 110, “(t)he Ontario Superior Court, as a court of general jurisdiction, has the prima facie power to decide every type of case, … . Only by clear and explicit limitation may the power of the Superior Court to decide a particular type of case be curtailed”. It went on at paragraph 112 to say that, “The plaintiff's claim in contract … is clearly within the jurisdiction of the Superior Court …”.
[20] In Gamblin v. Norway House Cree Nation Band[^3], the Federal Court Trial Division dealt with the situation in which the band council wanted to evict a band member from his housing on the reserve. In that case, housing was allocated by the band council to eligible band members, subject to some form of residency agreement. The court found it to be a contract, stating at paragraph 41:
[41] At the most basic level, the agreement between the Band Council and Mr. Gamblin regarding the allocation of housing is a private law contract. It does not constitute a landlord-tenant situation because no rent is being paid, nor does it constitute a trust, as counsel for the applicants alleges, because the residence is the property of the Band Council and the Council does not act as trustee with respect to its own property. A private contract is evidenced by the following: Gamblin was offered the opportunity to inhabit the trailer; he accepted the offer with its attached conditions; and, consideration passed between the parties in the form of a mutual promise - Gamblin promised to maintain the residence and not permit any illegal activity in exchange for continued housing for himself and his family.
[21] The present case in somewhat different in that rent was to be paid. This was the situation in Cottrell v. Chippewas of Rama Mnjikaning First Nation[^4], where a band member had entered into an agreement to pay the band for housing. The court found that that did not take it out of the “private law contract” category.
GROUNDS
[22] The next issue is whether there are grounds to terminate the tenancy. I find that there are several such grounds, as follows.
[23] First, the agreement required the payment by Loretta Reeb of monthly rent on the first of each month. Failure to pay by the fifteenth of the month explicitly gave MFN the right to commence eviction proceedings. The uncontroverted evidence is that, starting soon after the agreement was made, Loretta Reeb repeatedly failed to pay her rent on time or at all, at times providing cheques which were dishonored for insufficient funds. The amount outstanding fluctuated, and MFN was able to collect some money from Loretta Reeb’s share of a “Treaty Land Entitlement” payment. As of January 7, 2021, the last date for which sworn evidence is available, the outstanding arrears totalled $4,900.00. MFN’s counsel submitted that more had accrued since, but no evidence was provided of that or of any payments made or of any monies otherwise obtained from other sources subsequently with which to update the arrears figure.
[24] Second, the agreement stated that the premises shall not be used for any unlawful purposes. MFN’s evidence was that, when exercising its right of access for inspection of the premises in June, 2018, cannabis plants exceeding the number allowed by law were found in them.
[25] Third, the agreement allowed MFN to access the premises for inspection and prohibited Loretta Reeb from changing the locks on them. On December 4, 2020, the locks on the premises were found to have been changed, and the respondents were not present to allow access.
[26] Fourth, the agreement included a clause stating that, if the residence became uninhabitable by reason of fire, MFN may, at its option, terminate the agreement within thirty days. There was a fire at the premises on November 29, 2020 rendering the house unfit for habitation. Despite MFN’s communicating to Loretta Reeb that no one should be residing in the premises, the respondents continued to live there.
[27] It appears, then, that the respondents have breached the agreement in several ways. The breaches commenced soon after the agreement was entered into and continued. MFN communicated repeatedly with Loretta Reeb about the breaches and about its right to take eviction proceedings. Indeed, it gave notice to vacate as early as March 27, 2018. The respondents have had plenty of opportunity to come into compliance with the agreement and to formally respond to these proceedings, but have not done so.
[28] MFN did not seek costs.
[29] In conclusion, for the reasons above, it is ordered that:
The respondents, Loretta Reeb and Randy Reeb, are hereby ordered to vacate house 34 on the Matachewan First Nation reserve, effective Wednesday, October 13, 2021.
The applicant, Matachewan First Nation, is granted a Writ of Possession to house 34 on the Matachewan First Nation reserve.
The respondent, Loretta Reeb, is hereby ordered to pay the applicant, Matachewan First Nation, outstanding arrears totalling $4,900.00.
The applicant, Matachewan First Nation, may rely on the Nishnawbe-Aski Police Service to enforce this order to vacate and the Writ of Possession.
This order is made on a without costs basis.
The Honourable Justice James A. S. Wilcox
Released: October 28, 2021
COURT FILE NO.: CV-20-00000053-0000
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MATACHEWAN FIRST NATION
Applicant
– and –
LORETTA REEB and RANDY REEB
Respondents
REASONS FOR JUDGMENT
WILCOX J.
Released: October 28, 2021
[^1]: 2014 ONCA 564, paras. 40 and 41 [^2]: 2008 ONCA 892, 94 O.R. (3d) 19 [^3]: 2000 CanLII 16761 (FC), [2001] 2 CNLR 57 [^4]: 2009 FC 261, para. 93