) ) morreen euphenia thomas Appellant (Tenant) – v. –, 2023 ONSC 1396

CITATION : Thomas v. Homestead Land Holdings Limited , 2023 ONSC 1396 DIVISIONAL COURT FILE NO.: 268/22 DATE: 20230228 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Lococo, Trimble and O’Brien JJ BETWEEN: ) ) morreen euphenia thomas Appellant (Tenant) – and – homestead land holdings limited Respondent (Landlord) ) ) ) ) ) ) ) ) ) ) ) ) ) Morreen Thomas , Self-Represented Stephanie Sutherland, for the Respondents ) ) HEARD: February 27, 2023, in Toronto via videoconference BY THE COURT reasons for decision Overview [ 1 ] The Appellant, Ms. Thomas is the Tenant of the Respondent Landlord.

She appeals from several orders of the Landlord and Tenant Board (“LTB” or “Board”) by which her tenancy with the Landlord was terminated. [ 2 ] In an endorsement dated December 19, 2022, Nishikawa, J. denied the Tenant any further extensions to perfect her appeal. She directed the Tenant to perfect her appeal by January 13, 2023, which the Tenant failed to do.

The Tenant did not file an application record or factum on this appeal, and only uploaded a few unsworn documents to Caselines on the morning of the appeal. [ 3 ] The Court was not asked to make a ruling as to the admissibility these documents and did not do so. We note, however, that the documents all pre-date the orders of the Board under appeal. They were either provided to the Board or were available at the time of the hearings before the Board.

In any event, we have reviewed the documents and find that they would not impact the outcome of the appeal. [ 4 ] At the hearing of the appeal, the Tenant attended virtually together with her husband, Audley Smith. The Tenant’s daughter, Ms. Smith, also attended virtually. The Tenant requested that her husband and daughter be permitted to speak on her behalf and the Court agreed to hear submissions from both family members. [ 5 ] At the conclusion of the hearing, the Court advised that the appeal was dismissed, with reasons to follow. These are our reasons.

Background [ 6 ] The LTB held a hearing on November 21, 2021 in response to the Landlord’s application to evict the Tenant for non- payment of rent. At the hearing, the parties agreed to a consent order. The Tenant agreed to pay the Landlord $21,965.46 on or before November 29, 2021. If the Tenant failed to make the payment, the Landlord was entitled to file an ex parte application with the LTB for an order terminating the tenancy. [ 7 ] The Tenant did not pay the rent arrears on time, under circumstances which are discussed further below. The Landlord then filed an ex parte application to end the tenancy.

On January 14, 2022, the LTB issued an order terminating the tenancy and evicting the

Tenant (the “ ex parte order”). [ 8 ] The Tenant then filed a motion to set aside the ex parte order. By order dated April 19, 2022, the LTB denied the motion (the “set aside order”). The Tenant claimed at the motion hearing that she had provided a cheque to the Landlord for the rent arrears of $21,965.46 on November 26, 2021, but that the cheque contained an error. She stated that she then provided a replacement cheque by November 27, 2021. However, the LTB did not accept this evidence.

It instead accepted the evidence of the Landlord that the Tenant did not make the payment until approximately December 30, 2021. [ 9 ] The Tenant then filed a request to review the April 19, 2022 order. By order dated April 26, 2022, the request for review was denied (the “review order”). [ 10 ] The Tenant appealed the ex parte order, set aside order, and review order. After the Tenant filed her appeal, the eviction order was automatically stayed. By the time of a case management conference in this Court on June 21, 2022, the Tenant had failed to pay rent, with arrears at that point totaling $11,500.

On October 19, 2022, the Landlord brought a motion in writing to lift the stay because the Tenant had failed to pay the full arrears owing. However, Nishikawa, J. declined to grant the motion because, by the time the motion was heard, the Tenant had paid the majority of the arrears. [ 11 ] At this appeal, the Landlord produced a

schedule indicating that the arrears were slightly over $4,300. The Tenant said that she had overpaid rent, although no documents were submitted showing this. Tenant’s Submissions [ 12 ] In her notice of appeal, the Tenant raised the following grounds of appeal: 1. That the LTB made an error in law in failing to consider the Tenant’s circumstances at the time of the motion to set aside the consent order; and 2.

That the LTB made an error in law on the motion to set aside the consent order by failing to consider the remedial nature of the Residential Tenancies Act , 2006, S.O. 2005, c. 17 (“ RTA ”). [ 13 ] At the hearing of the appeal, the Tenant submitted the following: 1. She is up to date on her rent or perhaps has overpaid rent. 2. When the error was made on the November 2021 cheque for rent arrears, the Landlord’s representative contacted the Tenant by e- mail to advise her of the error. The Landlord had never previously communicated with the Tenant this way and she did not check her e- mail regularly.

She had sufficient funds to cover the amount owed and would have corrected the error sooner if she had been aware of it. 3. The Tenant was unable to meaningfully communicate in the review hearing before the LTB in April 2022 because of technological difficulties. Analysis [ 14 ]

Section 210 of the RTA provides a statutory right to appeal a decision of the LTB, but only on a question of law. The applicable standard of review is correctness, both with respect to an error of law and an allegation of procedural unfairness: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at para. 37 ; Law Society of Saskatchewan v. Abrametz , 2022 SCC 29 , at paras. 27-30 . In our view, the Tenant has neither demonstrated an error of law on the part of the LTB nor any procedural unfairness in the hearings below.

Did the LTB err in law by failing to consider all the circumstances at the motion to set aside? [ 15 ] Subsection 78(9) of the RTA permits a party to bring a motion to set aside an ex parte order.

Pursuant to s. 78(9)(b), the LTB shall set aside the order if it is “satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order…”. [ 16 ] The Tenant’s notice of appeal takes issue with the following passage from the LTB’s decision on the motion to set aside: While the Tenant also testified that the tenancy is of 8 years’ duration and that she has unspecified mental health issues, to the extent that these circumstances were in existence at the time of the hearing that resulted in the consent order, they could have been considered at that time for relief purposes and so ought not be considered for the same purpose in relation to the disposition of the present application. [ 17 ] Her notice of appeal suggests that this passage demonstrates the LTB failed to take into account all the circumstances at the time of the motion to set aside. [ 18 ] The LTB did not fail to consider all the circumstances.

Rather, the Board considered the Tenant’s circumstances but found that it was not appropriate to grant relief from eviction given that the same circumstances existed at the time of the consent order. The Board was entitled to take into account that the Tenant had entered into the agreement in which she committed to pay the arrears of rent, despite the length of the tenancy and her mental health.

These same circumstances did not form a basis to later set aside the order. [ 19 ] In response to the submission that the Board ought to have been more empathetic to the Tenant in a situation where there was a technical breach of contract, but where she ultimately paid the rent, it is not the role of this Court to interfere in the Board’s exercise of discretion, absent an error of law. While the Tenant disagrees with the Board’s determination in the context of all the circumstances, she

has not identified an error of law that would lead to this Court’s intervention. Did the LTB err in failing to consider the remedial nature of the RTA? [20] While one purpose of the RTA is to protect tenants from unlawful rent increases and unlawful evictions, another purpose, asset out in s. 1 of the RTA, is to “balance the rights and responsibilities of residential landlords and tenants.” [21] Here, in the decision on the motion to set aside, the Board did not commit any error in balancing those rights andresponsibilities.

The Board was entitled to take into account, as it did, that the Tenant had breached the agreement to make the arrearspayment by a particular date and that the Landlord was not made whole for a period after the breach. There is no error of law in thisanalysis. Does the Tenant’s claim that she is up to date with her rent or has overpaid rent assist her appeal? [22] The jurisdiction of this Court is limited to determining whether the LTB committed an error of law in the decisions underappeal. The Landlord disputes that the Tenant is current with her rental payments.

In any event, the issue of whether there are any currentarrears does not impact the question of whether the Board committed an error of law. Does the Tenant’s argument that she did not learn about the error with the November cheque because shedoes not check e-mail assist her appeal? [23] In the set aside order, the LTB considered the circumstances surrounding the November 2021 cheque, including the Tenant’ssubmission that she did not check her e-mails and was unaware of the Landlord’s message to her.

The Board found the Landlord to bemore credible than the Tenant on the issue of the non-negotiable cheque and accepted the Landlord’s evidence that the Tenant replacedthe cheque on December 30, 2021. [24] With respect to the bank statement submitted at the hearing of the appeal, we note that the statement only shows that theaccount was debited for the amount for rental arrears in the account during the period November 2021 to December 2021.

It does notshow the date the cheque was written or provided to the Landlord. [25] The Tenant’s submissions on this point do not demonstrate an error of law on the part of the Board. Did the LTB deny the Tenant procedural fairness at the hearing of the motion to set aside? [26] The Tenant’s submission that she was precluded from meaningful participation in the hearing leading to the set aside orderwas raised for the first time on appeal. There is no reference to any technological difficulties in the set aside order, nor to any argumentthat the Tenant was denied procedural fairness.

The order states that the Tenant attended the hearing and testified that she had spokenwith duty counsel. Having not raised the issue at first instance and in the absence of any evidence of procedural unfairness other than theTenant’s bald allegation to that effect in submissions before us, this ground of appeal must fail. Additional Issue: Abuse of Process [27] The Landlord raised the additional issue of whether the Tenant’s appeal constituted an abuse of process. Although the Tenanthas allowed arrears to accumulate at various times, she also has paid the majority of arrears owed throughout the appeal process.

In ourview, the evidence does not support the Landlord’s position that she commenced the appeal for the purpose of obtaining an automaticstay of the eviction order. Therefore, a finding of abuse of process is not warranted in this case. Disposition [28] As indicated at the conclusion of the hearing, the appeal is dismissed. The stay of the eviction order will continue until March31, 2023. It shall terminate at that time, meaning that as of April 1, 2023, the eviction may be enforced. [29] With respect to costs, the Landlord sought costs on a substantial indemnity basis in the amount of $13,583.71.

In our view,substantial indemnity costs are not appropriate, particularly given our dismissal of the allegation of abuse of process. The overallobjective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances,rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for Ontario(2004), (ON CA), 71 O.R. (3d) 291 (C.A.), at para 16. The issues on this appeal are straightforward. Taking intoaccount the Tenant’s circumstances, costs of $2,500 are reasonable and proportionate.

Therefore, the Tenant shall pay costs of $2,500all-inclusive to the Landlord. _______________________________ Lococo J. _______________________________

Trimble J. _______________________________ O’Brien J. Released: February 28, 2023 CITATION : Thomas v. Homestead Land Holdings Limited , 2023 ONSC 1396 DIVISIONAL COURT FILE NO.: 268/22 DATE: 20230228 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Lococo, Trimble, and O’Brien JJ BETWEEN: MORREEN EUPHENIA THOMAS Appellant (Tenant) – and – HOMESTEAD LAND HOLDINGS LIMITED Respondent (Landlord) REASONS FOR DECISION BY THE COURT Released: February 28, 2023