2013 ONSC 4462, 2013 ONSC 4462

CITATION: Mike Gold Construction v. Mark Gledhill, 2013 ONSC 4462 DIVISIONAL COURT FILE NO.: 102/13 DATE: 2013/06/28 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Mike Gold Construction, Landlord/Respondent AND: Mark Gledhill, Tenant/Appellant BEFORE: Herman J. COUNSEL: Douglass H.

Levitt, for the Landlord/Respondent Mark Gledhill, appearing in person HEARD: June 26, 2013 ENDORSEMENT [1] The Landlord/Respondent, Mike Gold Construction Ltd. moves for an order to quash the appeal of Mark Gledhill, theTenant/Appellant, on the basis that it is devoid of any merit. [2] The court has the jurisdiction to quash an appeal under s. 134(3) of the Court of Justice Act, R.S.O. 1990, c. C.43, where theappeal is “manifestly devoid of merit” (Lesyork Holdings Ltd. v.

Munden Acres Ltd., ( (ON CA), 13 O.R. (2d) 430(C.A.) at para. 18). [3] The Court should only quash an appeal on the basis that it is “manifestly devoid” of merit in the rarest of cases. I amsatisfied that this is one such case, for the reasons that follow. [4] The Tenant has appealed the Order of the Landlord and Tenant Board, dated January 31, 2013. The Order involved theLandlord’s application to terminate the tenancy and evict the Tenant.

The Board ordered: the tenancy was terminated, as of February 8,2013; the Tenant was required to pay the cost of repairs up to $10,000; and the eviction could be enforced, but not until February 9,2013. [5] The Tenant’s Amended Notice of Appeal puts forward two grounds of appeal: (

i) Collateral attack upon a Court Order of the Ontario Court of Justice, issued on January 21, 2013; and (ii) ex parte communication brought by the Landlord. Collateral attack upon a court order [6] The Tenant argues that the Board’s Order is a collateral attack on the recognizance that was issued by the Ontario Court ofJustice. [7] The Tenant was subject to criminal charges related to allegations that also formed part of the grounds for the Landlord’sapplication.

The criminal charges were eventually withdrawn and a recognizance was issued whereby the Tenant was required to keepthe peace. [8] The Tenant submits that the Board erred in basing its decision on “illegal acts” when the criminal charges had beenwithdrawn. [9] In my opinion, this ground of appeal is manifestly devoid of merit and cannot succeed for the following reasons: (

i) The Order of the Board is not a collateral attack on the withdrawal of the criminal charges and the issuance of therecognizance. The Board’s Order does not challenge or attack the decision of the Ontario Court of Justice. (see Garland v. Consumers’Gas Co., 2004 SCC 25 at paras. 71-71) (ii) The fact that the criminal charges were withdrawn does not prevent the same acts being the basis for the termination of atenancy. The standard of proof is different in the two proceedings: beyond a reasonable doubt in the criminal proceedings; the balance ofprobabilities in the proceeding before the Board (F.H. v. McDougall, 2008 SCC 53 at para. 49; Metropolitan Toronto Housing Authority

v. Hewitt, 1990 CarswellOnt 594, 9 R.P.R. (2d) 36 at para. 18 ). (iii) There were several findings that formed the basis of the Board’s Order in addition to the illegal acts that were the subject of the criminal proceedings. These grounds would, in themselves, have been sufficient to justify the Order. The Board found: the Tenant hindered, obstructed and interfered with the Landlord’s right to enter the rental unit; the Tenant altered the locking system on the door; the Tenant willfully caused significant damage to the unit; and the Tenant seriously impaired the safety of other tenants.

Ex parte communication [ 10 ] The Tenant says that the Landlord improperly communicated with the Board without copying him in the correspondence. [ 11 ] The Landlord provided a copy of a letter written by a paralegal, on behalf of the Landlord, to the Board. That letter was copied to the Tenant. [ 12 ] However, the Tenant says that he is challenging an earlier letter which was written to the Board and not copied to him.

According to the Tenant, the letter was a request from the Landlord’s representative to hear both the Landlord’s application and the Tenant’s applications together on November 25, 2012. [ 13 ] Rule 3.1 of the Board’s Rules of procedures provides that a party shall not attempt to speak directly to a Member outside the hearing. [ 14 ] Rule 3.2 provides that the Member may direct a party or representative communicating with the Board to provide a copy or notice of the communication to the other party. [ 15 ] I was not provided with a copy of the letter to which the Tenant referred.

However, regardless of whether the Landlord acted improperly in sending the letter, there is no basis for concluding that the Board acted improperly on the basis of the letter or that the Tenant was prejudiced. [ 16 ] The Tenant acknowledged that when he appeared before the Board in November 2012 and indicated that he had not received proper notice, the Board adjourned the hearing. The Tenant appeared at the hearing of the Landlord’s application on January 29, 2013.

The Tenant declined the opportunity to present evidence with respect to the Landlord’s application and to make submissions on whether there were any issues or factors under s. 83 of the Residential Tenancies Act, 2006 , S.O. 2006, c17 that he wanted the Board to consider. He took the position that the application should be dismissed in view of the withdrawal of the criminal charges. [ 17 ] In these circumstances, this ground of appeal is also manifestly devoid of merit. Conclusion [ 18 ] For the reasons given above, I am of the opinion that both grounds of appeal are manifestly devoid of merit.

The appeal is therefore quashed and the stay of the Order is lifted. [ 19 ] The Landlord seeks costs of $7,301.56, on a partial indemnity basis. [ 20 ] The Tenant submits that no costs should be awarded to the Landlord. He says that the amount sought by the Landlord is about the amount the Landlord owes him for the period he was out of the rental unit, as a result of the pending criminal charges. [ 21 ] My task is to determine whether costs of this motion should be awarded, not whether the Tenant has a legitimate claim against the Landlord for damages. [ 22 ] The Landlord was successful and is entitled to costs.

The costs sought are, in my opinion, beyond what an unsuccessful party could reasonably expect to pay in the circumstances. Costs are therefore awarded to the Landlord in the amount of $3,500, inclusive of HST and disbursements. [ 23 ] The approval of the Tenant as to the form and content of the order is dispensed with. Herman J. Date: June 28, 2013