[1] Toronto Community Housing Corporation (the Landlord) brings a motion to quash an appeal brought by Fuad Mubarak (the Tenant) from an order of the Landlord and Tenant Board dismissing the Tenant’s motion to set aside an order terminating his lease.
[2] The Landlord argues that the appeal is devoid of any merit and that the appeal is an abuse of process.
[3] For the reasons below, I agree with the Landlord that the appeal is devoid of any merit and that it is an abuse of process. Accordingly, the motion is granted and the appeal is quashed.
Background
Tenancy
[4] The Landlord provides social housing in Toronto. Some of its tenants are entitled to rent-geared-to-income subsidies. The Landlord administers the subsidies.
[5] The Tenant lives in one of the Landlord’s rental units with his two adult children.
[6] The Tenant received a rent-geared-to-income subsidy until February 1, 2019, when the subsidy was terminated because the Tenant failed to submit required documents.
[7] The Tenant fell into arrears on his rent on February 1, 2019. He paid $250 in rent in March 2019, but no further rent for the following two years and three months.
Proceedings before the Landlord and Tenant Board
[8] The Landlord commenced an application to terminate the tenancy in the spring of 2019.
[9] With the assistance of the Landlord and Tenant Board, the parties entered into a mediated settlement agreement in July 2019. As part of the agreement, the Tenant agreed to pay his ongoing rent and some amounts towards arrears. At the time, his ongoing rent was $1,465.00 per month. The arrears were $8,730.00, and the Tenant agreed to pay $250 per month in addition to his rent towards arrears.
[10] The Tenant did not pay any of the amounts owed under the agreement.
[11] As provided for in the agreement, on November 22, 2019, the Landlord obtained an order from the Board terminating the tenancy.
[12] The Landlord did not take immediate steps to enforce the termination due to the December holidays and onset of the COVID pandemic.
[13] The Landlord commenced eviction proceedings in the fall of 2020. As the eviction was being enforced on November 2, 2020, the Tenant obtained an ex parte interim order from the Board staying the eviction and granting an extension of the deadline for a motion to set aside the November 22, 2019 termination order.
[14] On November 19, 2020, the Board dismissed the Tenant’s motion to set aside the November 22, 2019 termination order. In doing so, the Board made the following findings:
At the time the Tenant entered into the agreement, he owed the Landlord $8,730.00. The Landlord testified that the Tenant now owes $32,484.00. As a result of the mediated agreement, the Tenant was to make $250.00 monthly payments in addition to his monthly rent. This was four months before the Landlord provided the Tenant an opportunity to pay what was owing and remain in this tenancy. The Tenant has not paid the Landlord any money toward rent or arrears in the last 22 months.
The Tenant testified that he thought that welfare would pay everything for him. He testified that they would not because he owned vehicles that he could sell. He claims he could not get proof in since he approached them last year [sic] that he did not own these vehicles.
The Tenant also testified that when he spoke to the worker for assistance, he was told not to pay the Landlord any money.
I do not find it plausible that the Tenant would not provide the evidence required for welfare assistance in such a long period of time and I also find it implausible that he would be told not to pay his rent or anything toward his arrears.
The Tenant’s representative was requested to make submissions on section 78.11(b) of the Residential Tenancies Act regarding relief from eviction. The Tenant testified that his daughter suffers from stress and an eviction would affect her. He also testified that he is part of the community and does not want to move. When asked what steps he has taken in the past year, since the eviction order was sent to him, to find alternative accommodations he testified he has not made any efforts to do so.
[15] On March 15, 2021, the Board dismissed the Tenant’s request for a review of the November 19, 2020 order. In its Review Order, the Board rejected the Tenant’s justifications for failing to pay any rent, reasoning as follows:
Section 78(11)(b) of the Residential Tenancies Act, 2006 provides that the Board shall set aside the eviction order if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so. Based on all the evidence, there is no dispute that the Tenant breached the agreement to pay arrears of $250.00 on a monthly basis starting October 20, 2019, and the monthly rent on the first day of the month starting November 1, 2019.
The Tenant points to two main reasons for this failure: Ontario Works’ decision to find him ineligible for financial assistance, and his daughter’s disability preventing him from obtaining employment. The Tenant’s testimony was that his daughter’s panic attacks were occasional even though in his motion he stated that she ‘suffers from chronic health challenges including significant health difficulties’. The evidence does not demonstrate that the Tenant’s daughter is so disabled that he could not keep a job while attempting to get back on Ontario Works, as this would more likely than not, have resulted in compliance with the agreement.
The Tenant is essentially asking the Board to grant his motion to set aside the order terminating the tenancy for his breach of the agreement to pay rent and arrears when he has no source of income, and no demonstrable means of paying the arrears or ongoing rent. The review decision from the city, even if successful, will not completely eliminate the arrears or cure his lack of employment or income. Waiting until June or possible July 2021 for his Ontario Works eligibility to be possibly reinstated, will be unreasonable in the circumstances.
I have considered all the disclosed circumstances in accordance with subsection 78(11)(b) of the Residential Tenancies Act, 2006 (the ‘Act’), and find that it would be unfair to grant the Tenant’s motion. The Tenant showed a complete disregard for the mediated settlement by failing to pay any portion of the $8,730.00 owed as of July 18, 2019. He signed the mediated settlement knowing he had no income and could not abide by the terms of the settlement.
Proceedings before the Divisional Court
[16] The Tenant appeals the Board’s decisions denying his request to set aside the termination order. His notice of appeal sets out the following grounds of appeal:
a. The Board failed to comply with its mandatory duty, pursuant to s. 83 of the Residential Tenancies Act, to consider all the circumstances and to consider relief from eviction before so ordering.
b. The Board failed to meaningfully consider submissions made by the tenant under the Human Rights Code, particularly regarding disability within the tenant’s household.
c. The Board seriously erred by refusing to grant the tenant’s request to adjourn the matter in order to allow him to obtain and provide relevant information to the presiding Members.
d. The Board failed to apply s. 202(1) in ascertaining “the real substance of all transactions and activities” relating to the matter. In particular, the Board failed to consider the failure of the City of Toronto to correctly review the rent geared to income subsidy.
[17] As a result of the appeal, the Tenant is entitled to an automatic stay of the eviction.
[18] After the Tenant commenced the appeal, the Divisional Court convened a case management conference on June 11, 2021. At the case conference, the parties advised the Court that there was an outstanding decision regarding the Tenant’s rent-geared-to-income, and there was therefore a disagreement over the Tenant’s monthly rent. However, there was no dispute that the Tenant had paid no rent since early 2019. The Court scheduled a motion to compel the Tenant to pay rent pending the appeal for July 23, 2021. In advance of that date, the Tenant was required to pay June and July rent in the amount of $276.
[19] The July 23, 2021 motion was converted to a case conference because of delay in the release of the rent-geared-to-income decision. At the case conference, the parties advised the Court that the decision had been released and that Mr. Mubarak’s rent is $135 per month. Mr. Mubarak had only paid $100 since the last case conference. At the Tenant’s request, the Court scheduled this motion to quash the appeal or, in the alternative, for payment of ongoing rent and some arrears as a condition of proceeding with the appeal. In a case management endorsement dated August 5, 2021, the Court scheduled this motion for September 17, 2021. The Court also directed that the Tenant was required “to pay his minimum rent of $135 per month for August and September 2021, and that he would be well advised to make a contribution to arrears. A failure to do so will likely be taken into consideration on the motion”.
[20] In support of the motion, the Landlord filed an affidavit that sets out the history of these proceedings and includes a calculation of arrears. The arrears at the time the Landlord’s materials were filed were $21,025.00. This calculation is based on rent of $1,465.00 per month from February 2019 to February 2020, and $135 per month from March 2020 to August 2021. It also includes deductions for the amounts referred to above the Tenant paid during that time period.
[21] In response to the motion, the Tenant did not file an affidavit. However, he provided bank documents showing that he paid $135 to the Landlord on August 7, 2021 and on September 7, 2021. He also filed a copy of the transcript from the review hearing held in March 2021.
Issues and analysis
[22] The Landlord seeks an order quashing the appeal on the basis that it is devoid of merit, that it is an abuse of process and that there has been undue delay.
[23] As set out below, I agree that the appeal is an abuse of process and that it is devoid of merit. In the circumstances, I do not need to address the issue of delay.
The appeal is an abuse of process
[24] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.
[25] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye, at para. 27.
[26] The Tenant paid no rent at all between April 2019 and June 2021. Once he commenced these proceedings, despite the Court’s directions, he has only paid minimal amounts towards his rent and no amounts towards his arrears. He also has not put forward any plan for paying outstanding arrears. While I appreciate that the Tenant may be in a difficult financial situation, he is not entitled to live in his apartment without paying any rent or without making efforts to pay his arrears. The Landlord provides public housing to low income people in Toronto. It has a long waiting list. It is unfair to allow the Tenant to ignore his obligations to pay rent and arrears while others who will meet their obligations await a rental unit.
[27] In my view, given the long history of non-payment of rent and the lack of real effort to remedy the situation, this appeal is an abuse of process and should be dismissed on that basis alone.
The appeal is devoid of any merit
[28] Whether an appeal has merit appears not to be relevant to the issue of whether the appeal is an abuse of process: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 (Div. Ct.), at para. 25. In any event, in my view, in this case lack of merit is a separate ground on which the appeal should be quashed.
[29] As referred to above, section 134(3) of the Courts of Justice Act gives a court to which an appeal is brought the power to quash the appeal. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal".
[30] Pursuant to section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: see, for example, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8.
[31] In Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada explained that “questions of law are questions about what the correct legal test is”.
[32] In my view, the grounds of appeal raised by the Tenant in his notice of appeal do not raise questions of law or are otherwise clearly devoid of merit.
[33] The first ground of appeal is that the Board failed to consider section 83 of the Residential Tenancies Act, 2006, and specifically whether the Tenant should be granted relief from eviction. However, as reviewed above, the proceedings before the Board dealt with the issue of whether the order terminating the tenancy on the basis that the Tenant did not comply with the mediated settlement agreement should be set aside. The Tenant’s motion to the Board was brought pursuant to section 78(9) of the Residential Tenancies Act, 2006. As part of the initial motion and on review, the Board considered whether it would “not be unfair” to set aside the order pursuant to section 78(11) of the Act. This is essentially the same exercise the Board is to perform under section 83 of the Residential Tenancies Act, 2006 when deciding whether it would be unfair to grant an eviction order. In this case, in its initial order, the Board found that it would be unfair to set aside the termination order because the Tenant took no steps to find alternative accommodation. In its review order, the Board held that it would be unfair to set aside the order because the “Tenant showed a complete disregard for the mediated settlement by failing to pay any portion of the $8,730.00 owed as of July 18, 2019. He signed the mediated settlement knowing he had no income and could not abide by the terms of the settlement.” These were findings of fact. Accordingly, the Board considered the fairness of the order, as it was required to do, and made factual findings. This proposed ground of appeal does not raise any legal issues and is therefore devoid of merit.
[34] The Tenant’s second ground of appeal is that the Board did not address matters arising from the Human Rights Code, and in particular arguments about his daughter’s disability. Again, this does not raise an issue of law. In its review decision, the Board considered the disabilities of the Tenant’s daughter and made a finding of fact that the “evidence does not demonstrate that the Tenant’s daughter is so disabled that he could not keep a job while attempting to get back on Ontario Works, as this would more likely than not, have resulted in compliance with the agreement.” This was a finding of fact and therefore not a proper ground of appeal.
[35] The third ground of appeal is that the Board erred in failing to grant the Tenant an adjournment to obtain more evidence. While the issue of procedural fairness is a question of law, I see no basis here for the Tenant’s claim that the Board erred in not granting him an adjournment. The Tenant asked for an adjournment at the beginning of both proceedings on the basis that he was awaiting a ruling on his rent-geared-to-income subsidy. The Board denied both requests. In my view, there was no procedural unfairness. The issue before the Board was whether the termination order should be set aside. The Tenant admitted breaching the settlement agreement and paying no rent for over two years. The rent-geared-to-income subsidy could have no bearing on the outcome of the proceeding because, even if the Tenant was entitled to a subsidy, this would not result in an excuse to pay no rent whatsoever. In addition, the Board deals with a high volume of proceedings and is entitled to control its own process to make sure matters are dealt with efficiently.
[36] Finally, the fourth ground of appeal is that the Board failed to consider the “real substance” of the matter because the Board failed to consider that the Tenant was entitled to a rent-geared-to-income subsidy. Again, as mentioned above, while the rent-geared-to-income subsidy may affect the amount of monthly rent the Tenant owed, it would not excuse the Tenant from paying any rent, especially where he had agreed to do so and made no efforts to comply with the settlement agreement. The Board was aware that the Tenant was awaiting a ruling on the rent geared to income subsidy but made no legal error in refusing to set aside the order terminating the tenancy on the basis that he breached the mediated settlement agreement.
Conclusion
[37] For the reasons above, the motion is granted and the Tenant’s appeal is dismissed.
[38] Given the Tenant’s personal circumstances and the current state of the COVID-19 pandemic, I am delaying enforcement of the termination of the tenancy for an additional four weeks. The Landlord can request that the Sheriff’s Office enforce the termination as of February 14, 2022.
[39] As the successful party on the motion, the Landlord is entitled to its costs. The Landlord seeks $1,837.20 on a partial indemnity basis. This amount is reasonable. The Tenant is to pay costs of $1,837.20 all-inclusive to the Landlord within 90 days.
[40] The Landlord can send a draft order to the Divisional Court, including a Word version, without the need for the Tenant’s approval as to form.
___________________________
Favreau J.
Date: January 17, 2022"
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