2017 ONSC 102, 2017 ONSC 102

CITATION : Hasan v. Taylor, 2017 ONSC 102 DIVISIONAL COURT FILE NO.: 397/16 DATE: 20170105 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: mohammad hasan , Landlord, Moving Party (Respondent in Appeal) AND: janis taylor, Tenant, Responding Party (Appellant In Appeal) BEFORE: Kiteley J.

COUNSEL: Eldar Babayev, for the Landlord, Moving party Self-represented Tenant, Responding party HEARD at Toronto: January 4, 2017 ENDORSEMENT ON MOTION TO QUASH [ 1 ] This is a motion by the Landlord to quash the appeal of the Tenant and for an order lifting the stay of enforcement of the orders of the Landlord and Tenant Board no. TSL-74929-16 dated June 23, 2016 and TSL-74929-16SA dated August 12, 2016. Preliminary matters [ 2 ] The Tenant had filed a motion record that included a document that purported to be from her but was unsigned. That document referred to exhibits A – K.

The motion record had tabs A–L including tab B that was empty. I pointed out that the material on which she relied differed from the format of the material on which the Landlord relied and did not comply with the Rules. She was aware of the deficiencies and had been told by staff at the Divisional Court office that they could not assist her. I recessed at about 10:15 and directed the Tenant to have the documents properly sworn. I suggested that she try the paralegal office in the lobby of 393 University Avenue. [ 3 ] Court resumed at about 11:15 and the Tenant had done as I asked.

Exhibit B, described as text messages exchanged between her and the Landlord was still empty of content although there were text messages attached as exhibit H which touch on the subject described as Exhibit B and Exhibit H. [ 4 ] On her return the Tenant was accompanied by Lidiya Yermakova who described herself as duty counsel. She advised that she worked for Law Help which has an office located on the main floor of 393 University. Ms. Yermakova is a lawyer and she had commissioned the affidavit and the exhibits, for which the court is grateful.

On behalf of the Tenant, she asked for an adjournment until January 12 at which time Divisional Court Duty Counsel would be available. I heard submissions from Ms. Yermakova and input from Ms. Taylor as well as submissions from Mr. Babayev. I made an oral ruling that I would not adjourn for reasons indicated. [ 5 ] One of the reasons for asking for an adjournment was that the Tenant said that she was taken by surprise with the content of the motion record that included an affidavit from her prior Landlord S.H.

Counsel for the Landlord intended to rely on that evidence to demonstrate that the Tenant had engaged in a pattern of behaviour that he said was relevant to his abuse of process submissions such as in Regan v Ennis 2016 ONSC 7143 . In her responding affidavit, the Tenant provided evidence in four pages and three exhibits in which she challenged that evidence. On that record, I could not resolve the conflict with respect to the evidence of her alleged pattern of behaviour and I ruled that that evidence could not assist in this motion to quash.

I made a ruling that all of the evidence on the subject of her prior tenancy with S.H. was irrelevant to the motion to quash and should be struck. I struck paragraphs 29-32 of the Landlord’s affidavit, all of the affidavit of S.H., and pages 6-9 of the Tenant’s affidavit along with Exhibits I, J and K to her affidavit. On further reflection, there were a few other passages that I ought to have struck including references in her factum. I have ignored all parts of the record that refer to S.H. [ 6 ] Ms. Yermakova left at about 11:50. I heard submissions from Mr. Babayev until 12:05 and then Ms.

Taylor’s submissions until approximately 12:35. Following Mr. Babayev’s brief reply submissions, I received his costs outline and I adjourned at about 12:45 with this decision to follow. Landlord and Tenant Board Proceedings [ 7 ] The evidence indicates as follows. The Tenant took possession of the premises on April 1, 2015. In December 2015, the Landlord applied for an order to terminate the tenancy and to evict the Tenant for non-payment of rent. The application was heard in Toronto on January 18, 2016 at which time both the Landlord and the Tenant attended.

In a consent order dated January 19, 2016, the Tenant was ordered to pay $1,500 on or before January 25, 2016; the Tenant was required to pay the rent for February on or before

February 1, 2016; the Tenant was ordered to pay costs of $1,800 and $170 on or before February 12, 2016; and, if the Tenant failed to comply with any part of the order, the Landlord could apply under s. 78 of the Residential Tenancies Act, 2006 without notice to the Tenant for an order terminating the tenancy and evicting the Tenant provided that the Landlord made the application to terminate and evict no later than 30 days after the Tenant’s failure to comply. [ 8 ] The Landlord alleged that the Tenant did not comply and he applied for an order to terminate and evict and for an order that the Tenant pay rent and compensation.

The application was directed to a hearing which was held on April 14, 2016. Only the Landlord attended.

The Member made a number of determinations and the order dated April 21, 2016 provided that the tenancy was terminated and the Tenant was required to vacate on or before April 30, 2016; the Tenant was ordered to pay $1,246.78 as rent arrears up to April 30 and the cost of the application less the rent deposit and interest; if the Tenant failed to vacate then she was ordered to pay $36.16 per day for compensation starting May 1, 2016 to the date she moved out; if the Tenant failed to vacate then starting May 1, 2016, the Landlord could file the order with the Court Enforcement Office so that the eviction could be enforced. [ 9 ] On April 27, 2016, the Tenant requested a review of the order on the basis that she was not reasonably able to participate in the hearing.

The review was heard on May 26, 2016. In an order issued June 7, 2016, the Member made several determinations including that the Tenant was not reasonably able to participate in the April 14 hearing because she did not receive a notice of hearing. The Landlord did not oppose the Tenant’s review request and the Member granted the review request.

The Member included as a determination the agreement of the parties that the Tenant owed the Landlord $3,070 including rent arrears for the period ending May 31, 2016 and the Landlord’s $170 Board filing costs, less “an illegal $1,100 damage deposit which the Landlord had collected”. [ 10 ] In that consent order issued June 7, 2016 , the order issued on April 21 was cancelled and replaced with an order that required the Tenant to: pay rent for June on June 1, 2016; pay $1,535 to the Landlord on or before June 15, 2016; and pay rent for July on or before July 15.

If the Tenant failed to make any of the payments, the Landlord could apply under s. 78 of the Residential Tenancies Act, 2006 within 30 days of the breach and without notice to the Tenant for an order terminating the tenancy and evicting the Tenant. [ 11 ] The Landlord alleged that the Tenant did not comply and he applied for an order to terminate the tenancy and evict the tenant. The hearing was conducted without the Tenant. The order dated June 23, 2016 is the subject of this appeal.

In that order, the Vice Chair terminated the tenancy; ordered the Tenant to vacate on or before July 4, 2016; held that as of the date of the order, the Tenant owed no money to the Landlord because the amount of the rent deposit and interest the Landlord owed exceeded the arrears of rent that the Landlord was entitled to under the order by $1,127.07; authorized the Landlord to offset compensation of $36.16 per day starting July 1, 2016; and provided that if the Tenant did not vacate on or before July 4, 2016 then starting July 5, 2016, the Landlord could file the order for enforcement. [ 12 ] The Tenant filed a motion to set aside the consent order dated June 7, 2016.

The motion was heard on August 12 and only the Landlord’s representative attended. The Landlord’s representative suggested that the order was in error because it failed to order rent for June 2016 but the Members concluded that June rent had not been requested in the application. In the order dated August 12, 2016, which is the subject of this appeal, the Members denied the motion to set aside the order TSL-74929-16 issued on June 7, 2016 and lifted the stay of that order. Appeal by Tenant [ 13 ] On August 19, 2016, the Tenant filed a notice of appeal from the orders dated June 23, 2016 and August 12, 2016.

The Tenant relied on section 74(10)b, section 74(4)a, section 59(3)a,b, and

section 78 of the Landlord and Tenant Act [sic]. The grounds of appeal were as follows: I was not reasonably able to participate in the hearing. I was unable to produce my evidence. The adjudicator did not properly weigh the evidence and inconsistencies in the applications and statements of the landlord. The initial application contained errors in fact and were not valid.

I was denied natural justice in not being able to present my case. [ 14 ] The Tenant also filed the “Appellant’s Certificate” in which she certified that the following evidence was required for the appeal: Exhibits numbers YES The affidavit evidence of DONALD CLARKE, CHRISTINE TAYLOR The oral evidence of NONE [ 15 ] The Tenant filed affidavits of service indicating that on August 19 she had served the notice of appeal and certificate respecting evidence by mail on the Landlord and on the Landlord and Tenant Board. [ 16 ] On August 19 the Tenant completed a “Requisition for a Stay LLTB” and on August 24, 2016, the Assistant Registrar of the Divisional Court issued the Certificate of Stay with respect to both orders.

[ 17 ] The Divisional Court file includes a Notice Dismissing Appeal (No Transcript) dated September 19, 2016 which alerts the Tenant that the appeal would be dismissed for delay on October 6, 2016 unless perfected within 10 days after service of the notice. [ 18 ] On October 6, 2016 the Tenant filed an appeal book and compendium that includes only the Notice of Appeal, a copy of the order issued August 12, 2016, and two of the three pages of the order issued June 23, 2016 as well as a Certificate of Perfection. [ 19 ] Mr.

Babayev also had a factum served by the Tenant on the appeal but it was not contained in the Divisional Court file and had not been filed in connection with this motion. [ 20 ] The Divisional Court file includes a Notice of Appointment of Lawyer dated October 13, 2016 which indicates that the Landlord had retained the firm of Hills, Salah and Mr. Babayev. [ 21 ] The file also includes a Notice of Listing for Hearing dated October 12, 2016. Motion to Quash [ 22 ] The motion record of the Landlord includes his affidavit sworn December 19, 2016 attached to which are the orders referred to above.

The record was served on December 20. [ 23 ] As indicated above, the responding motion record consists of the affidavit of the Tenant. The Commissioner did not date the affidavit but all of the exhibits are identified as being referred to in the affidavit of the Tenant sworn January 4, 2017. [ 24 ] The Tenant had also served a factum, much of which was a repetition of the affidavit.

During her submissions I received additional information from the Tenant, largely in response to my questions. [ 25 ] Pursuant to s. 210(1) of the Residential Tenancies Act (the Act), an appeal lies to the Divisional Court from a decision of the Board but only on a question of law. Pursuant to s. 25(1) of the Statutory Powers Procedure Act , the appeal gives rise to an automatic stay of the orders in the appeal.

Pursuant to s. 134 of the Courts of Justice Act, this Court has jurisdiction to quash an appeal where the appeal is “manifestly devoid of merit” or can be said to be an abuse of process because it has been brought solely for the purpose of delay. [ 26 ] Counsel for the Landlord takes the position that the appeal should be quashed for procedural and substantive reasons. [ 27 ] As for the procedural reasons, the evidence of the Landlord is that he did not receive a copy of the notice of appeal by mail.

His evidence is that he learned of the appeal when he tried to enforce through the Superior Court Enforcement Office and that led him to attend at the Divisional Court to review the file, as did Mr. Babayev. [ 28 ] The Tenant has produced an affidavit that she served the notice of appeal by mail. In her submissions, she observed that she would have been foolish to have perfected the appeal without serving him because he would have used that as part of his assertion that she appealed just to cause delay. [ 29 ] There is conflicting evidence on the issue of service of the notice of appeal.

It is possible that both are correct: she sent it by mail and he did not receive it which was the explanation that the Member accepted in the review she initiated that was heard on May 26, 2016.

In any event, I would not have quashed on account of that procedural issue. [ 30 ] Counsel for the Landlord also argues that the appeal should be quashed for substantive reasons, namely that it is manifestly without merit in that it contains no reference to any error of law and is an abuse of process. [ 31 ] I agree with counsel for the Landlord that the affidavit of the Tenant and her factum do not disclose any error of law.

I asked the Tenant to explain the errors of law on which she would rely if the appeal proceeded. [ 32 ] The Tenant said that the initial application in December 2015 contained evidence as to the amount of deposit that the Landlord had which she subsequently proved was wrong. As indicated above, in the order issued June 7, 2016, the Member characterized it as the “illegal $1,100 damage deposit”. To the extent that the Landlord may have failed to disclose that information at the outset it has been corrected.

I do not accept that that was an error of law. [ 33 ] The Tenant said that the Landlord was allowed to obtain a termination and eviction order without notice to her and that was an error of law. As indicated above, it was a consent order issued June 7, 2016 that authorized the Landlord to bring an application without notice to the Tenant.

I do not accept that it was an error of law when he did so on June 23 rd . [ 34 ] The Tenant took the position that she had not been given an opportunity to be heard on August 12 because, as indicated in paragraph 18 of her affidavit she was “incredibly ill and unable to leave” her home.

She provided an explanation that was not in her affidavit, namely that she has a severe case of IBS and as a result of symptoms that day, she could not leave. [ 35 ] The Tenant did not seek to bring medical evidence to the attention of the Board to establish that she had not been “reasonably able to participate in the hearing” although she had had experience with such an issue as was reflected in the order issued June 7. It was incumbent on her to provide such evidence to the Board before seeking to rely on it in this court. She provided no such evidence in this court either.

I do not accept that that constitutes a denial of procedural fairness or could be found to be an error of law. [ 36 ] As indicated above, in her “Appellant’s Certificate” the Tenant took the position that there were no transcripts required of the

hearings on June 23 or August 12 but that she intended to rely on affidavits. In response to my inquiry she said Donald Clarke is a friend and Christine Taylor is her sister and that both of them would give evidence as to her payment of rent in June in compliance with the June 7 order.

She said her sister had been hospitalized from time to time in June and July 2016 and that in anticipation of the August 12 hearing, the Tenant was going to provide evidence of her sister’s unavailability (on account of health reason) to provide the evidence of corroboration of rent payments and, because she too was unwell on august 12, she did not have the opportunity to provide that evidence to the Board. [ 37 ] It was challenging to follow this explanation since the affidavit filed by the Tenant on this motion did not include reference to Clarke or to her sister nor were the affidavits contained in the Appeal Book and Compendium.

At this motion to quash, the Tenant provided no evidence of payment of rent at any time. I have listed in paragraph 13 above the sections of the Residential Tenancies Act on which the Tenant relies in this appeal. All of them relate to payment of rent. In the absence of any evidence, I cannot conclude that the Tenant’s position as to rent arrears is a question of law. [ 38 ] I agree with counsel for the Landlord that the Notice of Appeal, Appeal Book and Compendium, and the affidavit of the Tenant before me on this motion do not disclose any issues that might qualify as errors of law.

Based on her evidence at paragraph 23 of her affidavit and her submissions, the Tenant is preoccupied with “proving that the Landlord has a history of being untrustworthy as a witness and has a history of misstating fact” and she is committed to ensuring that the record is kept straight.

In other words, she is intent on pursuing what must be characterized as questions of fact. [ 39 ] In the absence of any basis upon which this court could find that the Tenant relies on an error of law if the appeal proceeded, I conclude that the appeal is manifestly devoid of merit. [ 40 ] The Landlord asserts that the appeal is a delaying tactic. In his affidavit, he deposed that he had not received any rent from her since June 2, 2016 and that at the time of signing his affidavit on December 19, she owed him $8570 in rent arrears which, as of January 4, had increased to $9700.

I pointed out to the Tenant that in her affidavit she had not denied the evidence that she had not paid anything since June 2. She said that she didn’t understand that she had to challenge his evidence and she said that on August 21 she had paid 3 months’ rent. She insisted that she had images of the payments on her electronic device but she did not have it with her. She admitted that she had not paid January rent. [ 41 ] I cannot accept that the Tenant paid 3 months’ rent 2 days after she filed her notice of appeal and after seeking the automatic Certificate of Stay.

I cannot accept that she paid any rent or compensation in the absence of proof. She relies on text messages with the Landlord at Exhibit H which are largely indecipherable as to the date but the one that is clear is dated June 16, 2016 and is his text message that he did not receive the payment which I infer was the payment due June 15 pursuant to the June 7 consent order.

Furthermore, she admits that she did not pay any rent in January. [ 42 ] Having found that the appeal is manifestly devoid of merit, I need not make a determination that the appeal should be quashed because it was brought solely for purposes of delay and is therefore an abuse of process.

The absence of evidence of proof of payment of arrears, the admission that she did not pay rent in January 2017 in the face of this motion to quash, the launching of the appeal rather than pursuing a remedy before the Landlord and Tenant Board to establish that she was “not reasonably able to participate on August 12” and the automatic stay as a result of the appeal lead me to the conclusion that delay is a motivating factor in the appeal whether it was launched solely for delay or not. Costs [ 43 ] Mr.

Babayev’s costs outline includes fees at $999, estimated fee for appearance at $500, disbursements at $277.00 and HST of $19.50 for a total of $1,795.50 I am satisfied that those costs are reasonable given the success achieved on the motion. ORDER TO GO AS FOLLOWS: [ 44 ] The appeal from order no. TSL-74929-16 dated June 23, 2016 and order no.

TSL-74929-16SA dated August 12, 2016 is quashed. [ 45 ] The stay dated August 24, 2016 from those orders of the Landlord and Tenant Board is lifted. [ 46 ] The Sheriff is directed to give immediate and expedited vacant possession of the premises to the Landlord, not to be exercised before January 15, 2017. [ 47 ] The Tenant shall pay costs of the motion to quash fixed in the amount of $1,795.50. [ 48 ] Counsel for the Landlord may take out this order without approval as to form and content by the Tenant. _______________________________ Kiteley J. Date: January 2017