Devoid of Merit (Appeal - LTB)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-10-07
CLNP Page ID: 1898
Page Categories: [Appeals]
Citation: Devoid of Merit (Appeal - LTB), CLNP 1898, <>, retrieved on 2022-10-07
Editor: Sharvey
Last Updated: 2022/04/03


Capreit v. Veiga, 2022 ONSC 958 (CanLII)[1]

[36] An appellate court may quash an appeal where it is manifestly devoid of merit: Leysork Holdings Ltd. v. Munden Acres Ltd. (1976) O.R. (2d) 430, 1976 CarswellOnt 300 (CA) at para. 18; Solomon v. Levy, 2015 ONSC 2556 at para. 34.[2]

...

[39] I find that the Tenant’s appeal is devoid of merit. I further find that it does not raise a question of law, which is required in order to appeal under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. I explain my reasons for this finding below.

...

[46] Section 210 of the Residential Tenancies Act, 2006 provides that appeals from the LTB may be brought “only on a question of law”. A question of law is a question about what the correct legal test is. A question of fact is about what actually took place between the parties. A question of mixed fact and law is a question about whether the facts satisfy the legal tests. Only questions about whether or not the LTB applied the correct legal test can be appealed to this court. Questions about whether the facts determined by the LTB satisfy the applicable legal tests are questions of mixed fact and law, and cannot be appealed: Solomon at paras. 31-33; Lafontaine v. Grant, 2019 ONCA 552 at paras. 6-7[3]; Regan v. Ennis, 2016 ONSC 7143 at para. 23.[4]

...

[53] An appeal will be an abuse of the court’s process where it is brought seeking solely to delay: Solomon at para. 34; Regan at paras. 24 and 26.

...

[59] The Tenant owes approximately $45,000 in rent arrears. She has not paid rent since mid-2020. There is no prospect of her ability to pay rent or rent arrears. When the LTB set terms for the Tenant to pay her rent and rent arrears in December 2020 (set out in the January 29, 2021 LTB order), it was based on her assurance that she could meet the schedule set at that time. However, she almost immediately breached that order in relation to payment of rent and arrears. Although the Tenant still has an application proceeding before the LTB, there is no basis to believe that any relief she might obtain from that application would be anywhere near sufficient to address her rent arrears.

[60] Further, as noted above, to the extent that the substance of the Tenant’s appeal is from the eviction order of February 12, 2021, it was filed long out of time.

[61] I agree with Justice Corbett’s conclusion in his case management order dated June 25, 2021. Based on the record in this motion, in particular the history of proceedings, I find that the appeal is an abuse of the court’s process, brought solely to delay, and to take advantage of the automatic stay of the eviction order pending appeal. Justice Corbett’s order lifted that stay on the LTB order, such that the respondent was able to move forward with the eviction. But the respondent should not be required to further respond to this appeal.

[1] [2] [3] [4]

Zareski v. Umar, 2022 ONSC 356 (CanLII)[5]

[9] The appellant has not demonstrated any error of law. The Board reasonably refused to grant an adjournment in the circumstances, given the lack of documentary evidence respecting the appellant’s employment situation and the timing of both his retention of a representative and the filing of his application against the respondent. The Board also reasonably concluded that the appellant’s application did not overlap with the respondent’s applications.

[10] There was no denial of procedural fairness. The Board offered to let the appellant participate by telephone, and this was refused. The appellant also had a legal representative who participated on his behalf.

[11] The appellant has not shown that the Board made any legal error when it granted the respondent’s applications to terminate the tenancy. While the appellant argues that the respondent was acting in bad faith, there was no evidence before the Board to support this allegation, nor was there any evidence to counter the respondent’s evidence concerning the late payment of rent. While the appellant made submissions before this Court about the respondent’s past behaviour, which he characterizes as harassment, that evidence was not before the Board, and it is not properly before this Court.

[12] As the appellant has demonstrated no error of law by the Board, the appeal is dismissed. While the stay of the Board’s order is now lifted, the Court will exercise its discretion to delay the enforcement of the eviction order until March 1, 2022, given that the rent is current, a young child will be affected by the eviction, and the present public health circumstances create difficulties for all.


[5]


References

  1. 1.0 1.1 Capreit v. Veiga, 2022 ONSC 958 (CanLII), <https://canlii.ca/t/jmkdf>, retrieved on 2022-04-03
  2. 2.0 2.1 Solomon v Levy, 2015 ONSC 2556 (CanLII), <https://canlii.ca/t/gh8jg>, retrieved on 2022-04-03
  3. 3.0 3.1 Lafontaine v. Grant, 2019 ONCA 552 (CanLII), <https://canlii.ca/t/j17m6>, retrieved on 2022-04-03
  4. 4.0 4.1 Regan v Ennis, 2016 ONSC 7143 (CanLII), <https://canlii.ca/t/gvnws>, retrieved on 2022-04-03
  5. 5.0 5.1 Zareski v. Umar, 2022 ONSC 356 (CanLII), <https://canlii.ca/t/jltjb>, retrieved on 2022-04-03