COURT FILE NO.: CV-16-0361-00
DATE: 2022-10-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ontario Aboriginal Housing Support Services Corporation
Applicant
- and -
Patricia Ann Aho
Respondent
E. Durst, for the Applicant
P. Aho, self-rep
HEARD: September 22, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Decision On Motion
Overview
[1] Although directed to do so, Ms. Aho has not provided a witness list for trial as ordered. The applicant (“Aboriginal Housing”) seeks to strike Ms. Aho’s affidavit and proceed to trial. For the reasons that follow, I direct a trial as set out herein.
Nature of Proceeding and Procedural History
[2] On August 6, 2016, Aboriginal Housing issued an application seeking declarations and other relief with respect to Ms. Aho’s occupation of a premises at 239 Earl Rd in Kakabeka Falls, ON. The relief sought by Aboriginal Housing includes the following declarations: Aboriginal Housing is the lawful owner of the premises; Ms. Aho has no property or interest in the premises; and Ms. Aho is liable for trespass. Aboriginal Housing also seeks an order for vacant possession of the premises, leave for the issuance of a writ of possession of the premises, and a permanent injunction restraining Ms. Aho from trespassing on the premises or obstructing Aboriginal Housing’s access and possession of the premises.
[3] The grounds for the relief sought, as set out in the Notice of Application, are the following:
a. Canada Mortgage and Housing Corporation (“CMHC”) held the mortgage on property located at 46 Rupert Street, Kakabeka Falls. Ms. Aho was the mortgagor;
b. CMHC was also the predecessor owner of 239 Earl Road (“the premises”);
c. By oral agreement between CMHC and Ms. Aho, Ms. Aho was permitted to stay at the premises on a temporary basis while repairs were completed to 46 Rupert Street on the condition that Ms. Aho would continue to make the subsidized monthly mortgage payment of $95 and that Ms. Aho would return to Rupert as soon as the repairs were completed;
d. Ms. Aho refused to allow access to Rupert to allow repairs;
e. Ms. Aho paid $95 per month pursuant to the oral agreement until December 2005, and thereafter paid nothing;
f. CMHC assigned the mortgage on Rupert to Aboriginal Housing on September 10, 2009. Aboriginal Housing obtain judgement for foreclosure on Rupert on April 28, 2015;
g. CMHC transferred ownership of Earl Road to Aboriginal Housing on September 23, 2010;
h. Aboriginal Housing asked Ms. Aho to complete a tenant package which, among other things, would verify her income. Ms. Aho has refused to sign a tenancy agreement and has refused to make any rental payments in respect to residing at Earl Road;
i. As Ms. Aho maintained that she had protections under the Residential Tenancies Act, 2006, Aboriginal Housing applied to the Landlord and Tenant Board for an order evicting Ms. Aho for nonpayment of rent;
j. By decision dated April 27, 2016, the Landlord and Tenant Board determined that Ms. Aho is not a “tenant” and is not afforded the rights and protections under the Act;
k. By letter dated May 13, 2016, Aboriginal Housing advised Ms. Aho that she was trespassing and demanded that she give up vacant possession of Earl Road by May 31, 2016.
[4] This court has made a number of procedural orders with respect to the application.
[5] On September 15, 2016, a litigation timetable was set for the delivery of responding materials, cross- examinations, and the hearing of the application.
[6] On October 13, 2016, Ms. Aho brought a motion seeking an order preventing Aboriginal Housing from proceeding with the application. That motion was adjourned for proper service.
[7] On November 17, 2016, the motion by Ms. Aho to “quash” the application was dismissed. A new litigation timetable was set and it was ordered that service on Ms. Aho could continue by ordinary mail.
[8] On March 23, 2017, Aboriginal Housing brought a motion to strike Ms. Aho’s affidavit for failing to attend at cross-examinations on February 27, 2017. It was ordered that Ms. Aho attend for cross-examination on April 16, 2017. The endorsement noted that Ms. Aho claimed that she had not been served despite the motion materials that set out that Aboriginal Housing made “many attempts to serve the Respondent and communicate with her.”
[9] On June 19, 2017, this application proceeded before me. After hearing submissions, I concluded that the rights of the parties depended on the terms of the oral agreement and ordered that the parties appear before me for directions as to procedure. By endorsement dated October 22, 2018, I directed the trial of an issue to determine these two questions:
a. What were the terms of the agreement allowing Ms. Aho occupancy of the property?
b. Is Ms. Aho in breach of those terms?
[10] Further, I directed the parties to appear before me on November 19, 2018, for a further case management conference to set a hearing of this trial of an issue. I ordered the parties to exchange proposed witness lists in advance of that case conference.
[11] On November 19, 2018, Aboriginal Housing raised the possibility of a motion for further discovery. At that time the address for service for Ms. Aho was confirmed as 239 Earl Road.
[12] This matter was before me again on June 3, 2021. My endorsement identified the witnesses for the Housing Authority and noted that:
Ms. Aho has not determined who her witnesses will be. By July 15, 2021, Ms. Aho will provide a list of witnesses to Ms. Kettle by mail.
[13] The parties were next before me on August 24, 2021. My endorsement from that date reads as follows:
By endorsement dated June 3, 2020, I directed that the parties attend before me today for further case conference.
I ordered that Ms. Aho provide a list of her witnesses for trial to counsel for the applicant by July 15, 2021. Ms. Aho has not done so.
On the call today, over 30 days since that deadline, Ms. Aho was unable to identify, by name, some of the witnesses she intends to call. Based on her submissions today, there may be a serious issue as to the relevance of the proposed testimony to the narrow issues to be tried which are:
What were the terms of the agreement allowing Ms. Aho occupancy of the property?
Is Ms. Aho in breach of those terms?
During the case conference, Ms. Aho indicated that she has filed an appeal or a motion to stay these proceedings to the Divisional Court. I have not seen these documents so I don't know how these new proceedings affect this proceeding. I leave that to counsel to determine.
In any event, subject to the effect of any order for a stay, this case conference is adjourned. Ms. Aho is to deliver her witness list including names, addresses, telephone numbers of the witnesses she intends to call within 60 days of this date to counsel for the applicant. Once that has been done the parties are to arrange a further case conference before me with the trial coordinator to discuss these witnesses and the procedures for trial.
Failing compliance with this deadline the applicant may bring whatever motion it determines to be appropriate
[Emphasis added.]
[14] This motion to strike was brought July 27, 2022, with a return date of September 1, 2022. The motion was adjourned to September 22 to allow Ms. Aho to participate in person.
[15] The affidavits filed by Aboriginal Housing confirm that Ms. Aho failed to provide a list of witnesses by October 24, 2021, or at all, and that Ms. Aho failed to communicate with counsel for Aboriginal Housing despite their attempts to contact her by telephone and voice mail to schedule this motion.
[16] In response, Ms. Aho filed two affidavits from her, both sworn September 16, 2022. The affidavits do not provide a list of witnesses, addresses or telephone numbers and, when questioned by the Court, Ms. Aho acknowledged that nothing in the affidavits addressed why she has not provided a witness list as ordered.
[17] Instead, Ms. Aho repeats her assertions with respect to the merits of the application and makes allegations that her rights to privacy, security, and health were violated. She deposes that she endured tampering with her security cameras, computers, emails and files. She objects to the current motion as “just another attempt to discriminate me and to silence me.” She requests that this motion be dismissed based on “misleading statements improper and inadequate service and in some cases, no service.”
[18] When asked why she had not provided a list of her witnesses and contact information, Ms. Aho said that she did not provide the list because Aboriginal Housing would interfere with her witnesses. She then indicated that she would proceed on her own.
Positions of the Parties
[19] The Housing Authority argues that, by analogy, the procedure under Rule 30.08(2) (failure to serve an affidavit of documents or produce a document) is applicable and that, therefore, Ms. Aho’s affidavit should be struck. The Aboriginal Housing argues that Ms. Aho’s noncompliance reaches the point that it can no longer be excused.
[20] Ms. Aho offers no explanation for the failure to provide a witness list other than an unsupported assertion that Aboriginal Housing will interfere with her witnesses.
Analysis and Disposition
[21] There is no evidence at all that Aboriginal Housing interfered or will interfere with any witness Ms. Aho might call.
[22] My orders were clear. The breach is equally clear. The delay caused by the breach is also clear. I am mindful of the allegation that Ms. Aho has been living in the premises for decades without payment and that Aboriginal Housing has been responsible for maintenance.
[23] Ms. Aho is self-represented. I have directed a trial of an issue. Ms. Aho has now announced that she will proceed on her own which I interpret as meaning she will not call any witnesses. I am sympathetic to the position of Aboriginal Housing. However, Ms. Aho will have the opportunity to argue her case at trial. In light of Ms. Aho’s failure to provide a witness list and her stated intention to proceed “on her own”, the trial will proceed subject to the following qualifications:
a. The trial of an issue will proceed before me.
b. No additional material may be filed by either party for the trial of an issue. However, both parties may file a factum limited to 20 pages.
c. Aboriginal Housing will have 90 minutes to present its evidence. Counsel for Aboriginal Housing and their witnesses may participate via Zoom.
d. Ms. Aho will have 90 minutes to present her evidence. Although Ms. Aho may testify on her own behalf, she may not call any other witnesses. Ms. Aho must be present in the courtroom.
e. After hearing evidence, the parties will each have 45 minutes to present their closing submissions.
f. The date for this hearing will be fixed by the trial coordinator. One day is required. If a date is not set within 30 days, the parties are to appear before me on a date to be set by the trial coordinator for a final trial management conference.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: October 20, 2022
COURT FILE NO.: CV-16-0361-00
DATE: 2022-10-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ontario Aboriginal Housing Support Services Corporation
Applicant
- and -
Patricia Ann Aho
Respondent
DECISION ON MOTION
Newton J.
Released: October 20, 2022