[2] Because of the need for an expeditious decision on this review motion, the moving party requested that it be heard in writing, to be based on the materials before the motion judge and her additional written submissions delivered by email. The responding party elected not to file responding submissions on the review motion, thus leaving it to the court to decide the motion on the basis of the materials that had been before the motion judge, the motion judge’s decision, and the additional material sent by the moving party.
[3] Upon reviewing the materials, as described above, the panel was satisfied that it could adjudicate the review motion fairly without oral submissions.
Review of an order of a single judge of the Divisional Court
[4] This is a motion to set aside or vary an order of a single Divisional Court motion judge pursuant to s. 21(5) of the Courts of Justice Act. The test on such a review is well established in this court: a motion to review is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact: Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div. Ct.), at para. 2; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518, at para. 7 (Div. Ct.). Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations”: Franchetti v. Huggins, 2022 ONCA 111, at para. 5.
The motion judge’s decision
[5] The motion judge’s decision was an exercise of discretion. Although she declined to order that Ms. Guillaume be permitted to occupy the premises pending the appeal to this court, she ordered the appeal expedited and she ordered that the landlord not be permitted to re-lease the premises pending determination of the appeal. This order balanced the interest of the parties in a manner consistent with equity and limited the period of potential prejudice to both parties to the time required for the expedited appeal.
[6] The underlying purpose of an interim order, such as the one sought in this case, is not to vindicate rights pending the hearing of the appeal, but to preserve the court’s ability to do justice at the end of the case, and to limit or eliminate prejudice to both parties pending completion of the proceedings in this court.
The issue on appeal
[7] The Landlord and Tenant Board (“LTB”) found that Ms. Guillaume was not a tenant and thus was not entitled to the protection afforded tenants under the Residential Tenancies Act. Ms. Guillaume has been out of the premises since the summer of 2021. The appeal to this court is from that LTB decision.
[8] As a consequence of the decision of the motion judge, the appeal is scheduled for hearing on April 13, 2022 – which expedites the appeal process in this court to roughly four months from commencement of the appeal to the hearing date.
The issue before the motion judge
[9] The motion judge correctly characterized the issue before her as requiring her to apply the test in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. She found that the appeal meets the low bar to establish a serious issue to be tried but concluded that the tenant did not establish irreparable harm. This is a factual finding, rooted in the record, and discloses no error. The motion judge also found that the balance of convenience weighed against placing the moving party in the premises, but also weighed in favour of prohibiting the landlord from leasing the premises to anyone else pending the determination of the appeal. As the motion judge expressed, this balance limited the risk of changing the status quo in a way that could lead to complications upon disposition of the appeal in this court.
[10] The motion judge applied the correct legal test, made no palpable and overriding error of fact, and her exercise of discretion discloses no basis for this panel to intervene
The moving party’s argument
[11] The moving party’s argument is largely premised on two points. First, she argues that on the merits she was a tenant and so her rights as a tenant should be vindicated. Second, she argues that the LTB found that she was a tenant in a prior interim ruling. Neither of these arguments discloses a basis to interfere with the motion judge’s decision.
[12] In respect to the first argument, it is encompassed in the motion judge’s finding that there is an arguable appeal. The moving party’s authorities – cases in which opportunities were given to tenants by the LTB to “preserve” their tenancies – are distinguishable, as involving situations in which there was no dispute that there was in fact a “tenancy”, which is not the situation here. The second argument is without merit for the reasons expressed by the motion judge. The prior ruling did not establish that the moving party was a tenant, but merely preserved her rights to make that argument in a subsequent hearing before the LTB.
[13] A motion for interim relief is not a motion for summary judgment. The motion judge did not err in limiting her assessment of the merits to her finding that there is an arguable appeal. The moving party’s arguments on the review motion do not raise an issue on review in respect to the motion judge’s application of the test for interim relief to the facts as she reasonably found them to be.
Disposition
[14] The review motion is dismissed. Since the responding party chose to file no responding submissions on the motion, there shall be no order as to costs. [...]"
[2] On this motion, the appellant seeks an order permitting her to live in the rental unit pending her appeal or stay the LTB decision (meaning that the unit could not be re-rented pending the appeal).
Brief background
[3] In 2016, the respondent landlord rented the premises to a third-party, referred to in this endorsement as Ms. O. In June 2021, Ms. O gave notice to the landlord that she intended to move out at the end of June. In response, she was told that she needed to give 60 days’ notice. She then provided a Form N9 indicating that she was terminating her tenancy effective August 31, 2021.
[4] Ms. O moved out, and she returned her keys on July 28, 2021. On August 4, 2021, an employee of the landlord inspected the unit, finding little there except several cats. There was no furniture. After inquiry, Ms. O said that the cats had likely been abandoned by her former roommate (the appellant). The landlord ensured that the cats were given shelter and changed the locks.
[5] On this motion, there are factual disputes about several matters, including whether there was food and other items for the cats left in the rental unit, whether the appellant had paid a month’s rent just before she was locked out and whether the landlord knew the appellant had been living there.
[6] After the locks were changed, the appellant recovered her cats and brought a T2 Application about Tenant Rights, seeking an order determining that she had been wrongfully locked out. She listed herself and Ms. O as the applicants, but Ms. O later confirmed that she did not bring the application and was not pursuing it.
[7] The appellant sought interim relief from the LTB. She filed an urgent ex parte motion, resulting in an interim order dated September 22, 2021 that expedited the hearing and prohibited the landlord from re-renting the unit in the meantime. The appellant requested, but was not given, interim possession of the unit.
[8] In October, Ms. O provided a letter confirming that she had not brought the application, had been the only tenant and did not wish to continue the tenancy. The appellant challenges the authenticity of this letter.
[9] The appellant’s application was heard by LTB Member Morris on November 10, 2021. The LTB decision, challenged on this appeal, was released on November 22, 2021.
[10] Member Morris addressed the preliminary issue of whether the appellant was a tenant. If not, the LTB did not have jurisdiction to give the requested order.
[11] Member Morris heard evidence from the appellant and the landlord, and from Ms. O.
[12] The appellant relied on s. 104(4)(b) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, submitting that her occupation was deemed to be an assignment of the rental unit in her circumstances. Member Morris considered the facts, finding that the appellant was a roommate, not a tenant, that roommates were permitted, and that the landlord was unaware that there was an “authorized occupant” for whom the landlord would be obliged to make an application to the LTB of an unauthorized assignment of the lease. Member Morris found that there was no deemed assignment of the rental unit.
[13] Given the finding that the appellant was not a tenant, her application was dismissed. The appellant then brought her appeal to this court. The appellant raises procedural fairness issues in her appeal, submitting that the LTB member did not allow her evidence to be heard, as well as other issues.
[14] The appellant now seeks interim relief pending the hearing of her appeal.
Issues
[15] The test for interim relief is set out in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. Three factors must be considered:
(1) whether there is a serious issue to be decided on the appeal;
(2) whether the appellant would suffer irreparable harm if the interim relief is not granted; and
(3) whether the balance of convenience favours granting the motion.
[16] The threshold for the first factor is low. The starting point is the Residential Tenancies Act, which limits appeals to questions of law only. Although the appellant frames her appeal as breaches of procedural fairness (which are questions of law in this context) a number of her grounds are actually challenges to the fact-finding by the LTB. Those matters fall below the low threshold for serious issues because they are not questions of law.
[17] The grounds that may be characterized as questions of law are as follows:
(i) that the member wrongly reversed the September 22, 2021 interim order because that interim order viewed the appellant as a tenant;
(ii) that the member acted outside her jurisdiction because the landlord was required to file A1/A2 applications to challenge the appellant’s tenancy and did not do so, and erred in not finding that the tenancy had been assigned to her under ss. 100 and 104 of the Act; and,
(iii) that there is a reasonable apprehension of bias and breach of procedural fairness because the member did not accept two audio recordings (between the appellant and Ms. O) into evidence, as well as other conduct at the hearing.
[18] There is no serious issue of law about reversing the prior interim order. The prior order made no finding about the appellant’s alleged tenancy. It preserved the issue pending the LTB hearing. Similarly, there is no serious issue that an A1 or A2 was required. It was open to the LTB member to consider the tenancy issue on the appellant’s application as a preliminary matter. Further the conclusion under the Act was based on findings of fact.
[19] However, I am prepared to assume that the procedural fairness issues are sufficient for the low threshold on the question of whether there is a serious issue raised on the appeal.
[20] On the second question, irreparable harm, the appellant has said that she suffered harm when the LTB disregarded her rights at the hearing by denying her the opportunity to be heard and by acting with bias. These are grounds of appeal and more properly dealt with under the first factor, above. I have accepted that there are procedural fairness issues that raise a serious issue to be tried.
[21] In addition, the appellant says that she has suffered financial harm. This is not irreparable harm. Further, if she succeeds on her appeal, and the matter is remitted back to the LTB to be heard again, she may seek damages up to $35,000. The evidence does not suggest a damage claim in excess of that amount.
[22] The above interim order of the LTB has now expired. It dealt with any possessions of the appellant and there is no evidence of an issue in that regard. It also precluded the landlord from re-renting the premises until the time of the hearing. The landlord confirms that the unit remains vacant. If the premises were re-rented, and the appeal is successful, there is the possibility of irreparable harm.
[23] The respondent acknowledges that the other relief sought on the appellant’s motion, to stay the LTB order appealed from, would mean prohibiting the landlord from re-renting the premises pending the appeal.
[24] On the third question, the balance of convenience, the appellant submits that she is working on the preparation of her appeal materials to meet the schedule that the court has set for the delivery of her materials.
[25] The landlord notes that permitting the appellant to occupy the rental unit on an interim basis creates a problem. Specifically, if issues arise, the landlord would be constrained because under the Residential Tenancies Act it can only seek relief against tenants and unless and until the appeal is granted, the Act does not apply. Further, continuing the interim order to keep the unit vacant could mean that the unit is left vacant for an additional long period of time.
[26] Considering all of the above factors, the request to occupy the rental unit pending appeal is not granted, however, the respondent shall not re-rent the premises pending the hearing of the appeal. Given this order, the appeal shall be expedited. The court office will be in touch with the parties about the date for the expedited appeal.
[27] Given that there was divided success on this motion, there shall be no order as to costs. [...]"
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