



COURT OF APPEAL FOR ONTARIO

CITATION: Bernard Property Maintenance v. Taylor, 2019
    ONCA 830

DATE: 20191021

DOCKET: C66638

Juriansz, Benotto and Miller JJ.A.

BETWEEN

Bernard Property Maintenance

Applicant/Respondent

(Respondent)

and

Paul Taylor

Respondent/Appellant

(Appellant)

Paul Taylor, acting in person

David S. Strashin, for the respondent

Heard: September 26, 2019

On appeal from the order of Justice David Price of the
    Divisional Court, dated July 16, 2018, with reasons reported at 2018 ONSC 4390,
    affirming two decisions of the Landlord Tenant Board, dated July 18, 2017 and
    July 25, 2017.

Juriansz J.A.:


A.

Appeal Improperly Brought in this Court

[1]

This appeal from a single judge of the Divisional Court came before us
    sitting as a panel of the Court of Appeal. At the outset we asked the parties
    to address the jurisdiction of this court to hear the appeal. Mr. Taylor argued
    that appeal lay to this court pursuant to s. 6(1) of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43.

[2]

I disagree. A line of authority establishes that the proper process to
    set aside or vary a decision of a single judge of the Divisional Court is a
    motion pursuant to s. 21(5) of the
CJA

before a panel of the Divisional
    Court. Mr. Taylors appeal was improperly filed in this court.

[3]

In
Overseas Missionary Fellowship v. 578369 Ontario Ltd
. (1990),
    73 O.R. (2d) 73, Morden A.C.J.O. held the appeal routes within the Divisional
    Court should take precedence over and exclude the general terms of the provisions
    governing appeal to this court, currently at s. 6(1) of the
CJA
: at p.
    75. More recently, in
Alliance to Protect Prince Edward County v. Ontario
    (Environment and Climate Change)
, 2018 ONCA 576, 17 C.E.L.R. (4th) 167, Lauwers
    J.A. observed that the structure of the [
CJA
] requires a person to
    exhaust the remedial jurisdiction of the Divisional Court before coming to the
    Court of Appeal: at para. 13. In
Coote v. Ontario (Human Rights
    Commission)
, 2010 ONCA 580, this court summarily quashed an appeal of an
    order of a single judge of the Divisional Court to the Court of Appeal,
    stating, The appellants proper appeal route is to a panel of the Divisional
    Court on a motion under s. 21(5) of the
Court of Justice Act
: at para.
    2.

[4]

The reconstitution of a panel of this court as a panel of the
    Divisional Court is an action that is practically abandoned:
P.M. v.
    M.A
., 2017 ONCA 6, at para. 6. However, in the unusual circumstances that
    this court granted Mr. Taylor leave to appeal, a stay of the order
    below, and an extension of time, we reconstituted ourselves as a panel of
    the Divisional Court to hear and determine the matter as if it were a motion
    brought under s. 21(5) of the
CJA
with the assent of the Chief Justice
    of the Superior Court of Justice and the consent of the parties.

B.

Merits of the Present Appeal

(1)

Procedural History

[5]

Mr. Taylor is a tenant in a property that was managed by the responding
    party, Bernard Property Maintenance (Bernard Property). On June 7, 2017 Bernard
    Property commenced applications before the Landlord and Tenant Board the
    Board) to end Mr. Taylors tenancy, evict him, and collect unpaid rent. On
    June 12, 2017, the Board gave notice that the applications would be heard on
    July 17, 2017. Mr. Taylor did not attend on that day, and the Board Member granted
    the applications and made an eviction order.

[6]

Mr. Taylor sought a reconsideration, submitting that the Member failed
    to accommodate his disabilities by not granting an adjournment. On July 25, 2017,
    the Board Vice Chair issued a decision denying his request to review the Members
    order. Mr. Taylor then appealed to the Divisional Court on July 27, 2017.

[7]

Bernard Property brought two unsuccessful motions to dismiss Mr.
    Taylors appeal for delay. The first was rejected as it had not been filed and
    served properly. The second was dismissed on terms that Mr. Taylor pay rent and
    take steps to perfect his appeal.

[8]

On June 27, 2018, Bernard Property brought a third motion to dismiss Mr.
    Taylors appeal for delay in perfecting, because the appeal was frivolous,
    vexatious, or an abuse of process, and because Mr. Taylor had not complied with
    the earlier order to pay rent. Price J., sitting as a single judge, granted the
    motion on July 16, 2018 and made an order that, among other things, dismissed
    Mr. Taylors appeal for delay on the ground of his failure to perfect the
    appeal, pursuant to Rule 61.13(1) and (3) of the
Rules of Civil Procedure

    and on the ground that it is manifestly devoid of merit, frivolous and/or
    vexatious pursuant to Rule 21.01(3)(d) of the
Rules of Civil Procedure
.

[9]

Mr. Taylor then filed appeal proceedings in the Court of Appeal,
    proceedings that are now being treated as a motion for review under s. 21(5) of
    the
CJA
.

(2)

Grounds of Appeal

[10]

Mr.
    Taylor raises two main grounds of appeal. First, he argues that the motion
    judge lacked jurisdiction to dismiss his appeal. Second, he argues that on the
    merits, the appeal raised the substantial issue of whether the Board failed to
    accommodate his disabilities, contrary to the
Canadian Charter of Rights
    and Freedoms, the Ontario Human Rights Code
, R.S.O. 1990, c. H.19, and
    other legislation.

[11]

For
    the reasons that follow, I would reject these submissions.

(3)

Jurisdiction of the Judge Below

[12]

Mr.
    Taylor argues that the motion judge relied on inapplicable rules to ground his
    jurisdiction to quash the appeal. He points out that r. 61.13 bestows
    jurisdiction to dismiss an appeal for delay on the Registrar of the court, not
    on a judge, and r. 21.01(3)(d) applies to an action before trial. The
    definition of action does not include an appeal: see r. 1.03(1).

[13]

Counsel
    for Bernard Property submits that the motion judge had jurisdiction to quash
    the appeal under s. 134(3) of the
CJA
. He said such orders are made regularly
    by single judges of the Divisional Court. While he did not cite any examples,
    there are many.

[14]

Cases
    in which appeals from the Landlord and Tenant Board have been quashed include
Regan
    v. Ennis
, 2016 ONSC 7143 (Div. Ct.);
Shields v. Lancelotte
, 2016
    ONSC 4433 (Div. Ct.); and
Houle v. Hayes
, 2010 ONSC 924, 91 R.P.R.
    (4th) 285 (Div. Ct.).
Panels of the Divisional Court have upheld decisions
    of single judges quashing appeals under s. 134(3) of the
CJA
: see, e.g.,
Regan v. Latimer
, 2016 ONSC
    4351 (Div. Ct.), affg 2016 ONSC 4132 (Div. Ct.), leave to appeal to Ont. C.A.
    dismissed for delay, M46871 (November 16, 2016);
Bérubé v. Rational
    Entertainment Limited
, 2010 ONSC 5545, 271 O.A.C. 151 (Div.
    Ct.), affg 2009 CarswellOnt 8674 (Div. Ct.), leave to appeal to Ont. C.A. dismissed
    for delay, M39388 (January 19, 2011).

[15]

It
    should be noted that r. 61.16(2.2), which provides that a motion for an order
    that finally determines an appeal should be heard by a panel of not fewer than three
    judges, expressly applies only to the Court of Appeal. Conversely, s. 21(3) of
    the
CJA
provides that a motion in the Divisional Court shall be heard
    by one judge, unless the court provides otherwise.

[16]

The
    motion judge in this case did not specifically state that he was acting under
    s. 134(3) of the
CJA
. However, Mr. Taylor was put on notice that the
    respondent was applying for an order dismissing his appeal because it had no
    merit. That issue was fully argued before the motion judge. I am satisfied that
    he had jurisdiction to quash the appeal as devoid of any merit and his order is
    not rendered a nullity simply because he did not cite s. 134(3).

(4)

Merits of the Appeal, Under s. 21(5) of the
CJA

[17]

Mr.
    Taylor submits that his appeal had merit because it raised the substantial
    issue of whether the Board had failed to accommodate his disabilities. He telephoned
    the Boards offices on July 17, 2017, the morning of his hearing, to indicate he
    could not attend the hearing because of disability. He says he was told that
    the Board does not grant adjournments to tenants.

[18]

This
    submission requires a review of what transpired before the Board and what the Board
    decided.

[19]

The
    Boards Notice of Hearing was issued on June 12, 2017 for the hearing date July
    17, 2017. The Notice stated: It is very important for you to attend the
    hearing. If you are late, or if you do not attend your hearing, it may take
    place without you. For tenants who could not attend the hearing, the Notice
    provided the following advice: you should send someone who has your written
    permission to represent you. If you or your representative do not attend, the
    Board may hold the hearing without you and you will not be sent any further
    notice of the proceedings.

[20]

In
    his reasons dated July 18, 2017, the Member noted that Mr. Taylor did not
    attend the hearing and the hearing proceeded in his absence. The Member later
    learned that Mr. Taylor had called the Boards hotline to advise he would not
    be attending, but the Member indicated he would not have granted an adjournment
    had he known of the call. The Member observed that Mr. Taylor had prior notice
    of the hearing, that he did not contact the landlord in advance to request an
    adjournment, that he did not avail himself of the Boards rescheduling procedures,
    that he did not send an agent, and that he simply called minutes before the
    hearing was scheduled to begin to advise he would not attend. The Member noted
    that Mr. Taylor had requested similar adjournments in the past and concluded
    that he was gaming the system and abusing procedure for the purpose of delay.

[21]

The
    Member ruled in favour of the Landlord and terminated the tenancy, ordering Mr.
    Taylor to move out by July 31, 2017 and pay $2,869.39, a sum representing his rent
    owing and Board fees, less his rental deposit.

[22]

Mr.
    Taylor subsequently requested review of the Boards decision, which was denied
    on July 18, 2017. The Vice Chair of the Board was not satisfied that there was
    a serious error in the order or that a serious error occurred in the
    proceedings. She stated that the Member clearly and completely gave solid
    reasons as to why the adjournment was not granted, noting that the Boards
    records of Mr. Taylors phone call made no mention of the disability he says
    required adjournment. The Vice Chair concluded that given the Members
    knowledge of Mr. Taylors past interactions with the Board, the Member
    exercised his discretion reasonably.

[23]

In
    the Divisional Court, the motion judge began by noting that in order to have
    merit, an appeal from the Board must be based on a ground of law. At para. 33,
    he explained the scope of the Divisional Courts powers of review:

The Divisional Court is not a venue where a Tenant is entitled
    to have the facts of his case re-litigated. In the present case, where the Tribunal
    has found as a fact that Mr. Taylor repeatedly failed to pay his rent, and that
    finding of fact was within the scope of his authority and jurisdiction, an
    appeal based on a dispute that fact has no merit.

[24]

The
    motion judge went on to find that there was no evidence in the material before
    him to support a finding that the Board discriminated against Mr. Taylor on the
    ground of disability by failing to adjourn the hearing on July 17, 2017: at
    para. 37. The Board offered accommodations for those who could not attend
    hearings, namely a procedure for rescheduling hearings and the ability to send
    an agent to a hearing on a tenants behalf: at para. 39. The motion judge noted
    that Mr. Taylor offered no evidence that he was not able to attend the hearing
    himself to argue for an adjournment on the ground of disability, reschedule the
    hearing in compliance with the Boards procedures, or send an agent on his
    behalf: at para. 40. The motion judge held that in failing to provide such evidence,
    Mr. Taylor failed to establish a
prima facie
case of discrimination: at
    para. 43.

[25]

The
    motion judge found that Mr. Taylor had breached an earlier order of the
    Divisional Court by failing to pay his rent from August to December 2017, and
    for June and July 2018. He was $9,975 in arrears of his rent for seven months:
    at para. 44. The motion judge noted that Mr. Taylor provided no evidence to
    support his claim that he had complied with the order and paid his rent: at
    para. 45.

[26]

In
    challenging the decision of the motion judge under s. 21(5) of the
CJA
,
    Mr. Taylor has the burden of establishing that the single judge made an error
    of law or a palpable and overriding error of fact: see

Marsden v.
    Ontario (Minister of Community Safety and Correctional Services)
, 2012
    ONSC 6118 (Div. Ct.).

[27]

Mr.
    Taylor has failed to satisfy that burden. Mr. Taylor does not point out any
    error of law in the motion judges reasoning. Moreover, the motion judges
    decision dismissing Mr. Taylors appeal for lack of merit is amply supported by
    the record. The motion judge could interfere only if the Members refusal to
    grant an adjournment was an unreasonable exercise of the Members discretion.
    The Members finding that Mr. Taylor failed to pay rent and was gaming the
    system for delay is a finding of fact. Given that finding of fact, the
    Members refusal to grant an adjournment was an entirely reasonable exercise of
    his discretion. The Vice Chair reasonably concluded Mr. Taylor had failed to
    show a serious error in the Members reasoning. As she stated, [a]bsent a serious
    error, a review is not an opportunity to extend time and permit the Tenant to
    occupy a rental unit for a longer period, especially if rent is not being
    paid.

[28]

There
    is no basis to set aside or vary the order of the motion judge dismissing Mr.
    Taylors appeal for lack of merit.

[29]

I
    consider it unnecessary to discuss other matters Mr. Taylor raised in his
    written argument. The substitution of the landlord as respondent in place of
    the landlords agent was inconsequential and it was within the motion judges
    discretion to admit fresh evidence.

[30]

The
    motion to set aside or vary the order of the motion judge is dismissed.

[31]

The
    respondent does not seek costs.

Released: RGJ OCT 21 2019

R.G. Juriansz J.A.

I agree. M.L. Benotto J.A.

I agree. B.W. Miller J.A.


