) ) JEFFREY MCDONALD v. PATRICIA, 2017 ONSC 291

CITATION : Mcdonald v. Menicucci, 2017 ONSC 291 DIVISIONAL COURT FILE NO.: 513/16 DATE: 20170112 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MARROCCO A.C.J.S.C. BETWEEN: ) ) JEFFREY MCDONALD and PATRICIA MAY SCHUYLER Appellants – and – FRANCES MENICUCCI and POMPILIO MENICUCCI Respondents ) ) ) ) ) ) ) ) ))) Jeffrey McDonald , acting in person Patricia Schuyler , not present Robert B. Macdonald , for the respondents ) ) ) HEARD: November 30, 2016 [ 1 ] The appellants were tenants at a property known municipally as 130 Foxridge Drive, Unit 305, Toronto, Ontario.

The lease required the appellants to pay monthly rent of $1150 on the first day of each month throughout the term of the lease. [ 2 ] On or about May 1, 2016, the tenants stopped paying rent. [ 3 ] In June 2016, the respondents filed an application for an order terminating their lease with the appellants. In July 2016, the Landlord and Tenant Board ordered the appellants to pay the arrears of rent and to stay current in their ongoing rent obligations.

The Board also ordered that in the event of a further default by the appellants, the respondents could seek an order ex parte terminating the tenancy. [ 4 ] The respondents defaulted on the rent and the landlord obtained an order terminating the tenancy in August 2016. The appellants then moved unsuccessfully before the Board to set aside this order. [ 5 ] Before they could be evicted, the appellants filed an appeal with this court pursuant to

section 210 of the Residential Tenancies Act, 2006 , S.O. 2006, c. 17 (the “Act”). By filing a Notice of Appeal with this court the appellants obtained an automatic stay of the order terminating their tenancy: see section 25(1) of the Statutory Powers Procedure Act , R.S.O. 1990, c. S.22 . [ 6 ]

Section 210 of the Act provides as follows: Appeal rights 210.

(1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. 2006, c. 17, s. 210 (1) . Board to receive notice

(2) A person appealing an order under this

section shall give to the Board any documents relating to the appeal. 2006, c. 17, s. 210 (2) . Board may be heard by counsel

(3) The Board is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal. 2006, c. 17, s. 210 (3) . Powers of Court

(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may, (

a) affirm, rescind, amend or replace the decision or order; or (

b) remit the matter to the Board with the opinion of the Divisional Court. 2006, c. 17, s. 210 (4) . Same

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper. 2006, c. 17, s. 210 (5) . [ 7 ] It is quite clear from section 210(1) that this court’s jurisdiction is limited to hear an appeal that is “only on a question of law”. [ 8 ] I set out verbatim the appellants’ grounds of appeal: 1. Medical Condition 2. Inadequate Notice 3. I am one of the tenants residing at 130 Fox Ridge Dr. #305, 4. The other is my partner. 5. I did not receive the notice to vacate the premises in adequate time to do so.

This document was received on October 21, 2016. 6. We have been tenants at this residence since February 2016 and unfortunately both fell ill shortly thereafter. My partner suffered a flesh eating disease and subsequent other maladies associated from this. 7. I have recently recovered from a stroke and have been allowed to return to work, not being medically fit to do so since early spring of this year. 8. Due to these illnesses we have not been able to pay rents when due.

I am requesting the period from now to December 15, 2016 to vacate this property. [ 9 ] The appellants allege inadequate notice, which is capable of raising a question of procedural fairness. However, the appellant Jeffrey McDonald attended the hearing before the Board. At that hearing, the Board made an order that permitted the respondents to apply for an order terminating the tenancy without notice if the appellants failed to pay rent as it becomes due.

When the appellants again failed to pay rent, the respondents obtained a further order terminating the tenancy without giving notice, as the original order had stipulated they may do. The appellants then asked the Board to set aside its order terminating the tenancy and obtained an interim stay of that order while the Board was considering the appellants’ request. The appellants’ request to set aside the order evicting them was denied on October 4, 2016, and they were ordered to leave the premises no later than October 24, 2016.

On October 24, 2016, the appellants appealed the order evicting them to this court and, as a result, obtained a stay of the order evicting them pursuant to section 25(1) of the Statutory Powers Procedure Act . [ 10 ] I am satisfied that the appellants’ claim that they did not receive adequate notice does not raise any issue of procedural fairness capable of affecting the outcome of this appeal because the ground of appeal related to inadequate notice is manifestly devoid of merit. [ 11 ] The appellants’ other grounds of appeal do not disclose a question of law.

Thus, this court has no jurisdiction to hear the appellants’ appeal. Accordingly, the appellants’ appeal is quashed. [ 12 ] While there is no reason to depart from the general rule that a successful party is entitled to costs, the health issues disclosed by the appellants suggest that the order of costs should be something less than would otherwise be the case. Accordingly, the appellants will pay the respondents’ costs, if demanded, in the amount of $3500. MARROCCO A.C.J.S.C. Released: 20170112 CITATION : Mcdonald v. Menicucci, 2017 ONSC 291 DIVISIONAL COURT FILE NO.: 513/16 DATE: 20170112

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: JEFFREY MCDONALD and PATRICIA MAY SCHUYLER Appellants – and – FRANCES MENICUCCI and POMPILIO MENICUCCI Respondents REASONS FOR JUDGMENT MARROCCO A.C.J.S.C. Released: 20170112