Jackson v. Capobianco, 2017 ONSC 3324

CITATION: Jackson v. Capobianco, 2017 ONSC 3324 DIVISIONAL COURT FILE NO.: 183/17 LANDLORD AND TENANT BOARD FILE No: 90773-17 DATE: 20170530 SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT) RE: alicia jackson v. mario capobianco BEFORE: Justice Swinton COUNSEL: Alicia Jackson in person Jane Ferguson for the Respondent (Moving Party) HEARD AT TORONTO: May 29, 2017 E N D O R S E M E N T Swinton J. [ 1 ] The respondent landlord has brought a motion to quash the appeal of Alicia Jackson (the “tenant”).

She seeks to overturn a decision of the Landlord and Tenant Board (the “Board”) dated March 22, 2017 that terminated her tenancy.

The landlord argues that the tenant’s appeal is frivolous, vexatious and an abuse of the appeal provisions of the Residential Tenancies Act, 2006 , S.O. 2006, c. 17 (the “Act”). [ 2 ] The Board found that the tenant had substantially interfered with the landlord’s rights because the tenant’s dogs had left excessive amount of feces near the entrance door and along the side of the house which the tenant had an obligation to clean up; the tenant refused to allow the landlord’s real estate agent access in order to show the rental unit to potential purchasers despite proper written notice; and she had failed to pay the water bill since November 2016 in accordance with the lease.

The Board decided not to exercise its discretion to refuse to order eviction pursuant to s. 83 of the Act , because the relationship of the parties could not be rehabilitated. However, the Board did delay the termination of the tenancy until April 30, 2017. [ 3 ] The tenant commenced her appeal on April 12, 2017. She was required to file proof that she had ordered transcripts within 30 days of filing the notice of appeal (see rule 61.05(5) of the Rules of Civil Procedure ).

She has not yet ordered the transcripts of the Board hearing, although she stated in court that she has now obtained the disk of the recording of the Board hearing. [ 4 ] The tenant filed only a factum for this motion. She did not file any affidavit material in response. [ 5 ] Subsection 210(1) of the Act permits an appeal to the Divisional Court only on a question of law. The landlord argues that most of the grounds of appeal raised by the tenant are challenges to questions of fact.

While one ground challenges the Board’s exercise of discretion to refuse or delay eviction under s. 83 of the Act, this ground of appeal, as well, does not raise a question of law. [ 6 ] I agree with the landlord’s submission that most of the grounds of appeal, while said to be errors of law in the notice of appeal, are actually challenges to the Board’s findings of fact – for example, with respect to the responsibility of the tenant for the deposit of dog excrement, her denial of access to the real estate agent, and her failure to pay the water bill.

Those findings of fact are not subject to appeal to the Divisional Court. Similarly, the Board’s findings of credibility are entitled to respect on appeal. I see no true error of law raised with respect to these issues, as required for an appeal to the Divisional Court pursuant to s. 210(1) .

[ 7 ] With respect to the exercise of discretion under s. 83 of the Act , the tenant has not identified any error of law. The Board made reference to s. 83 in its reasons and explained why it was not unfair to order eviction in the circumstances. That is an exercise of discretion based on the findings of fact made.

An appeal on this ground is bound to fail, as no error of law is identified. [ 8 ] While the tenant has suggested in the notice of appeal that the landlord acted in a retaliatory manner because she asserted her rights, she has filed no affidavit evidence to show that this issue was raised before the Board. This issue is not mentioned in the Board’s decision. [ 9 ] In my view, the appeal should be quashed, as I am satisfied that it does not raise questions of law, and it is manifestly devoid of merit and an attempt to delay the eviction.

The tenant’s failure to order the transcripts is a further indication of an attempt to delay. The landlord’s materials, served in early May, alerted her to the need to order the transcripts, yet she has not done so. [ 10 ] Accordingly, the motion to quash the appeal is granted, and the stay of the Board order is lifted. Costs to the landlord are fixed at $2,500 all in, payable within 30 days. Order is to go in the form of the draft signed. _____________________________ Swinton J. DATE: May 30, 2017