COURT FILE NO.: 290/04

DATE: 20050715

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

(MEEHAN, MOLLOY and SWINTON JJ.)

B E T W E E N:

LARRY I. MANPEL

Larry I. Manpel, in person

Appellant (Tenant)

• and -

GREENWIN PROPERTY MANAGEMENT, CRISTIAN COCAR and BETTY MARSMAN

Martin P. Zarnett, for the Respondent Greenwin Property Management

Betty Marsman, in person

Respondents

HEARD at Toronto: June 10, 2005

MOLLOY J.:

REASONS FOR JUDGMENT

The Appeal

1Larry I. Manpel has been a tenant at 250 Davenport Road in Toronto since 1983. Greenwin Property Management (“Greenwin”) is the current landlord. In January, 2004, Mr. Manpel filed an application with the Ontario Rental Housing Tribunal (“ORHT”) alleging that the landlord and the landlord’s agents had sent him a form notice dated December 16, 2003, which constituted a threat, intimidation, obstruction and coercion contrary to s. 35 of the Tenant Protection Act, S.O. 1997, c. 24 (“the Act”). Initially, Greenwin was the only named respondent. Subsequently, Mr. Manpel amended his application to add two individual respondents, both of whom had been employed by Greenwin at 250 Davenport in December 2003, Betty Marsman (Community Relations Worker) and Christian Cocar (Property Manager).

2Mr. Manpel’s application proceeded to a hearing before Tribunal Member S. Light on February 18, 2004, at which time a number of procedural matters were dealt with. The hearing on the merits of Mr. Manpel’s application proceeded before the same Tribunal Member on April 15, 2004. Mr. Manpel was not represented by counsel. Greenwin was represented by an agent, Mr. Paine. Mr. Manpel was the first witness, testifying on his own behalf. At the conclusion of his evidence, the Tribunal Member found that he had failed to establish a prima facie case and dismissed his application. She subsequently issued a formal Order and written Reasons dated April 26, 2004.

3Mr. Manpel appeals to the Divisional Court from the Member’s decision dated April 26, 2004. He submits: (i) that he did not receive a fair hearing; (ii) that the Member had no jurisdiction to dismiss an application for failing to establish a prima facie case; and (iii) that in any event the evidence did establish a prima facie case.

Background Facts

4On December 12, 2003, Mr. Manpel distributed a letter to all tenants at 250 Davenport stating his belief that Betty Marsman had committed a provincial offence by improperly holding herself out as being a social worker. His purpose in sending the letter was to seek information from other tenants on this issue to assist him in swearing a private information before a Justice of the Peace.

5On December 16, 2003, Greenwin’s property manager, Christian Cocar sent a notice to Mr. Manpel. It was a form letter on Greenwin letterhead, and stated as follows (the underlined words being the customized portion of the form letter):

An appointment has been scheduled with the Property Manager in the Community Office located at 250 Davenport Road on the main floor.

This appointment will be held on Thursday (Dec/18th/2003) at 4:00 p.m. regarding the following matter:

Regarding the letter re - social worker

If you are unable to attend, please call the Office at 416-902-3393 to set up a more convenient time.

6Upon receipt of this notice, Mr. Manpel consulted a lawyer. The lawyer responded to Greenwin on his behalf indicating that Mr. Manpel would not be attending such a meeting, and in fact Mr. Manpel did not attend.

The Proceedings Before the Tribunal

7There are three transcripts of the proceedings before the Tribunal: two from February 18th and one from April 15th.

8The first transcript from February 18th covers 22 pages and consists almost entirely of strenuous and repetitive objections by the landlord’s agent, Mr. Paine, with respect to Mr. Manpel’s request to have the proceedings transcribed by a qualified verbatim reporter from Graham Verbatim Reporting Limited whom he had hired for this purpose. It is difficult to understand why the landlord would be opposed to a verbatim transcript being available in the event it might be needed for subsequent proceedings. However, the objection was put forcefully and repeatedly, even after the Tribunal Member had ruled in Mr. Manpel’s favour on the point.

9Mr. Manpel’s decision to hire a court reporter was a wise one. This Court is all too aware of the inadequacies of the Tribunal’s tape recording system, which it uses instead of hiring court reporters. Frequently the tape recordings are so poor that no transcript can be prepared at all. Even when transcripts can be prepared, they are often full of inaccuracies and blank spots where the recording is inaudible. The Board Member herself noted (at Transcript 1, p. 17), “I know that our recordings here aren’t that great. So, I can’t really force him to rely on it.” Indeed, a comparison between the first transcript in this proceeding (which is taken from the Tribunal’s tape recording system) and the two subsequent transcripts (which were produced by the court reporter) is telling. The first transcript is replete with blank spaces marked “Inaudible” such that hardly anything Mr. Manpel said is transcribed; the other two transcripts are complete verbatim transcriptions.

10The second transcript covers the period on February 18, 2004 after the court reporter had set up, commencing at 3:30 pm. It is 44 pages in length, the vast majority of which consists of objections by Mr. Paine about the addition of Ms Marsman and Mr. Cocar as parties. At this point, Mr. Manpel had served his amended application on Greenwin and on Ms Marsman, but had not yet served Mr. Cocar. Mr. Paine made repeated objections that the individuals were not proper parties, that Mr. Manpel was not entitled to both add them as parties and summons them as witnesses, and that the entire proceeding was frivolous in any event. The Board Chair had to tell Mr. Paine many times to stop interrupting. Mr. Manpel said very little. In the result, the hearing was adjourned to permit Mr. Manpel to serve the material on Mr. Cocar.

11The next attendance was on April 15, 2004, commencing at 1:45 pm. Mr. Paine attended as agent for the landlord Greenwin. Mr. Manpel was unrepresented. Both Ms Marsman and Mr. Cocar were in attendance and the transcript reflects that both had been served with the Amended Application as well as a Summons to Witness. At the outset, Mr. Paine renewed his objection that Ms Marsman and Mr. Cocar were not proper parties. He advised the Tribunal Member several times, incorrectly, that the individuals had not been served with the Amended Application, but rather were simply attending in response to witness summonses. He also advised the Tribunal Member that Mr. Cocar was no longer an employee of Greenwin. There was considerable debate about this on the record until page 24 when Mr. Paine finally acknowledged that both Ms Marsman and Mr. Cocar had in fact been served with the Amended Application as well as with summonses.

12Mr. Paine nevertheless pressed for a ruling on whether the individuals were proper parties and the Member ruled that Mr. Cocar would only be a party if he wished to be.

13There was some confusion as to whether Mr. Manpel would be given an opportunity to make an opening statement. However, shortly after the ruling that Mr. Cocar would not be a party, Mr. Manpel was affirmed as a witness, rather than presenting an opening statement. His testimony begins at page 37 of the transcript. Cross-examination began at page 50 and continued to page 55 at which point Mr. Paine indicated he wanted to make a motion.

14The Tribunal Member then heard submissions from Mr. Paine that the application should be dismissed because Mr. Manpel had failed to establish a prima facie case. Mr. Manpel was asked for a response to those submissions, but was interrupted in his answer (as more particularly referred to below). The Member then dismissed Mr. Manpel’s application.

Standard of Review

15A person affected by an order of the Tribunal has a right of appeal to the Divisional Court on a question of law: s. 196(1) of the Act. On a pure question of law, particularly one that does not engage any special expertise of the Tribunal, the standard of review is correctness: Dollimore v. Azuria Group Inc., [2002] O.J. No. 4408 (Div.Ct.)

16The Tribunal is required to apply the principles of procedural fairness and natural justice. The parties are entitled to be heard and are entitled to a fair hearing. In determining whether the appellant (tenant) received a fair hearing, there is no need to apply any particular standard of review. Rather, the Tribunal is simply required to comply with the requirements of natural justice appropriate to the nature of the hearing and a failure to do so will result in the Tribunal’s decision being quashed: Baker v. Canada (Minister of Citizenship and Immigration)), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para 18-28. As noted by the Court of Appeal in London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 at para 10:

When considering an allegation of denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances to comply with the duty to act fairly.

Issue One: Jurisdiction to Dismiss for Failure to Demonstrate a Prima Facie Case

17It is not necessarily an error of jurisdiction for a Tribunal Member at a hearing under the Act to dismiss an application upon a non-suit motion by a responding party. However, such a ruling should only be made in the clearest of cases and after the applicant before the Tribunal has been given a full opportunity to present his case and make submissions. Further, where, as here, the party against whom the order is sought is not represented by counsel, the Member must ensure that he understands the process and the test to be applied before dismissing his case.

18In this case, the motion for dismissal was made by Mr. Paine, the agent for the landlord, immediately following Mr. Manpel’s evidence. The Member heard submissions from Mr. Paine on the motion and then stated to Mr. Manpel, “He’s [referring to Mr. Paine] saying that you haven’t even brought up a prima facie case. What is your response?” Mr. Manpel then began to respond, but had not completed his first sentence before Mr. Paine interrupted, began talking at the same time as Mr. Manpel and then asked that the Board Member grant his request. The Board Member then made the following ruling:

Okay, what I’m going to do is – I don’t think you have made out a prima facie case; okay? You haven’t raised enough evidence here that even – that would support a finding. Even if I don’t hear from the landlord’s witnesses the evidence that you’ve presented, without hearing any further, is not enough to support a finding that you requested or the order that you requested. So I will be dismissing your application.

19It is clear from the transcript that Mr. Manpel was not given a meaningful opportunity to make submissions on the non-suit motion. The nature of the motion and the test to be applied were never explained to him. When he attempted to respond to Mr. Paine’s argument, he was interrupted by Mr. Paine and the Board Member did not then give him an opportunity to continue. Further, Mr. Manpel was never asked by the Member whether he intended to call further evidence. The Board Member was aware from the outset that Mr. Manpel had not only sought to add Cristian Cocar and Betty Marsman as parties, he had also issued summonses to each of them and had intended to call them as witnesses at the hearing. The Board Member did not ask Mr. Manpel if he intended to call further witnesses before hearing Mr. Paine’s submissions on the non-suit motion, and, even more importantly, before ruling on the non-suit motion. In short, the procedure followed on the motion was unfair to Mr. Manpel and he was not given an opportunity to be heard before his case was dismissed. This was a fundamental error: Felker v. Felker, [1946] O.W.N. 368 (C.A.); Carrier v. Cameron, [1985] O.J. No. 1357 (Div. Ct.).

20Further, it cannot be said that there was no miscarriage of justice as a result of this error. If he had been permitted to call Mr. Cocar and Ms Marsman as witnesses, it is not inevitable that there would be a finding against him on the non-suit motion. His theory of the case was that Mr. Cocar and Ms Marsman were anxious to prevent him from using the courts to expose the fact that Ms Marsman had been misrepresenting herself as a social worker. He wanted to get from Ms Marsman and Mr. Cocar their reasons for sending the December 16th notice. He also took the position that a reasonable person would interpret the December 16th notice as some indication that his continued tenancy was in jeopardy if he failed to respond appropriately. None of these points had been put forward in the one sentence Mr. Manpel was able to utter before the dismissal ruling was made. They were relevant points to be considered and could well have changed the result. Therefore, Mr. Manpel was prejudiced by the fact that he did not have a full opportunity to present his case and to make submissions.

21Thus, while the Tribunal Member had jurisdiction to consider a non-suit motion, the manner in which she considered that motion resulted in a breach of natural justice and procedural fairness and, ultimately, in a miscarriage of justice. That is a reversible error.

Issue Two: Prima Facie Case

22In addition, even on the limited basis of the evidence already heard, the Tribunal Member’s ruling on the non-suit motion was incorrect.

23The Member indicated at the time of her oral ruling on April 15 that she would be issuing written reasons with the Board’s formal order. Those Reasons state in their entirety:

The Tenant presented a notice (Exhibit 1) from the Property Manager dated December 16, 2003 that an appointment had been scheduled to discuss the letter the tenant sent to other Tenants respecting a social worker. The notice indicated that if the Tenant was unable to attend, he could call the office to set up a more convenient time. The Tenant did not respond to this notice or attend a meeting with the Property Manager. The Tenant was never threatened because of his non-attendance for the proposed meeting.

Upon receiving the December 16th notice, the Tenant contacted his lawyer who responded on the Tenant’s behalf to the letter. The Tenant indicated he was not intimidated by the notice he received, since he was able to consult with his lawyer. The Tenant’s lawyer responded on December 18, 2003 by fax to the notice, indicating a concern with the lack of specificity of the proposed meeting.

The evidence presented at the hearing did not support a finding that the Landlord was coercing, threatening or interfering with the Tenant. At most the notice sent to the Tenant was somewhat high-handed. A personal call to the Tenant may have been a more appropriate method to request a meeting and clarify the subject for discussion. However, the notice sent is not enough to justify a ruling in the Tenant’s favour.

(Emphasis added)

24In finding that the Tenant had indicated he “was not that intimidated by the notice he received, since he was able to consult with a lawyer”, the Tribunal Member fundamentally misapprehended the evidence. In fact, Mr. Manpel testified that he was scared by the notice. He further stated that he would not have attended the meeting even if he had not had the advice of a lawyer on the point, but that if so, he would have been even more scared: April 15, 2004 Transcript, p. 3-47. At no time did Mr. Manpel testify that he was “not that intimidated by the notice” as stated in the Member’s Reasons.

25Further, it is not a necessary inference that Mr. Manpel was not intimidated by the notice. He testified that Mr. Cocar, as building manager, had no right to summons him to attend a meeting unless he had done something wrong in an area where Mr. Cocar had jurisdiction. He believed that the fact Mr. Cocar sent the notice was an indication his tenancy was in jeopardy if he did not attend the meeting. He testified that he was “scared” by the notice. Mr. Manpel decided not to attend the meeting because he believed Mr. Cocar had no right to direct him to attend for attempting to use the court. That does not mean that Mr. Manpel was not intimidated by the notice, nor does it establish that the landlord had no intention to coerce or intimidate when it sent the notice.

26Accordingly, the Member’s finding that Mr. Manpel was “not that intimidated” by the notice is a fundamental misapprehension of the evidence on a crucial point, and therefore properly characterized as an error of law.

27However, in any event, whether or not Mr. Manpel was intimidated is not conclusive of the issue. Section 27 of the Act provides that the landlord shall not “harass, obstruct, coerce, threaten or interfere with a tenant”. It is not a necessary precondition to a finding under that section that the tenant be “intimidated” by the landlord’s conduct. Here, Mr. Manpel’s evidence was that he was actually afraid as a result of the notice he received. However, an act by a landlord intended to frighten, obstruct, threaten or coerce a tenant, and which might reasonably be construed as such, will be a breach of the Act even if the tenant is not actually intimidated. The Tribunal Member failed to consider this issue in rendering her decision on the non-suit motion. However, she was alive to that issue earlier in the proceeding. For example, at the hearing on the afternoon of February 18, 2004, when considering the addition of the individual parties, the Board Member noted the importance of considering the context in which the letter was sent in order to understand its impact and that it was relevant to consider whether this was a “tactic to intimidate” on the part of the landlord: Transcript, p. 2-27 to 2-28. The failure to consider the possibility of such intent by the landlord was an error of law.

28There was evidence of what the Member described as a “somewhat high-handed” letter from the landlord in response to an attempt by the tenant to gather information from other tenants to support a prosecution against one of the landlord’s representatives in the building. It was a reasonable inference from the letter that the tenant was being summonsed to a meeting in response to some wrongdoing connected to his tenancy and that his tenancy might therefore be in jeopardy, at least from the perspective of the landlord. The tenant did not attend the meeting, but was “scared” by the letter he received. In my opinion, this is sufficient evidence of intimidation by the landlord to require a defence. It is not possible based on this evidence to conclude that no reasonable person could find in the applicant’s favour. Therefore, even on the limited evidence that was before the Tribunal (and leaving aside whether further evidence from other witnesses to be called by the tenant might have strengthened that case), it was not appropriate to dismiss the applicant’s case without calling upon the defence to present its case. Again, this is an error of law by the Tribunal Member.

Issue Three: Fairness of the Hearing

29Finally, I accept Mr. Manpel’s submission that, looked at as a whole, he did not receive a fair hearing. Examples of that unfairness are set out below, in addition to those already described above.

30Although the Board Member had adjourned the hearing on February 18 to give Mr. Manpel an opportunity to serve the material on Mr. Cocar, whom he sought to add as a party, she ruled at the outset of the return date on April 15, 2004 that Mr. Cocar was not a proper party. Her stated basis for the ruling was that Mr. Cocar was no longer employed by the landlord. She heard no evidence whatsoever on that point, basing her ruling entirely on the submission of Mr. Paine to that effect. This was improper and unfair to Mr. Manpel.

31At the beginning of the hearing on April 15 during the course of an extended debate as to whether the individual parties had been served and whether they were proper parties, Mr. Manpel asked to read an opening statement which he had prepared. This is a perfectly normal request and is almost invariably granted. It would have set the context for what was to follow and explained the basis of Mr. Manpel’s claim. In response to that reasonable request, the Board Member stated, “Don’t read the whole thing, just tell me, what are you asking for as against them?” Mr. Manpel repeated that request later, and stated “You know, I think it would be better if I do it in order.” The Board Member then replied, “Well, I think it would be better if you answer my questions.”: Transcript p. 3-12. After further argument, the Member ruled that Mr. Cocar was not a proper party and Mr. Manpel again returned to the fact that he had not been allowed to make an opening statement. The Board Member then said (at Transcript p. 3-34 – 3-35),

You know what, I will – you’re not allowed to read an opening statement, but let’s just say that I just don’t – also, if I find that there is a party here that’s just trying to spend a lot of time talking and we’re not going to get anywhere because there’s a lot of redundant things, then at the end of the day I may find that the case is frivolous and vexatious.

32There was then some confusion as to the nature of an opening statement as opposed to evidence under oath. The Member objected to hearing things twice, first in an opening statement and then as oral evidence: Transcript, p. 3-38. Ultimately, the Member permitted Mr. Manpel to give his oral testimony with the assistance of the notes he had prepared as an opening statement, rather than making an opening statement. However, at the same time she warned Mr. Manpel that if he did simply read from his notes, this would take away from his credibility, and that it would be better if he did not do so. Mr. Manpel alleges that this was confusing and disorienting for him, which I do not find surprising.

33While the Member’s advice with respect to the use of notes was not necessarily wrong, the whole tenor of the hearing and the interactions between the Board Member and Mr. Manpel were not conducive to getting his evidence fairly and fully before the Tribunal. There were repeated interruptions and interjections and many indications of annoyance and impatience on the part of the Board Member. The difficulty about reading the opening statement is a good illustration of that problem. I recognize the difficulty of dealing with an unrepresented party who is uncertain of the procedures, particularly when the Tribunal has a busy schedule and limited time available. However, it is apparent from the Transcripts that Mr. Manpel was not the problem and ultimately, at the end of the hearing when dealing with costs, the Tribunal Member acknowledged that fact, stating that his complaint was genuine and not frivolous and that “he didn’t do anything that prolonged the case”: Transcript, p. 3-62.

34Part of the problem with the hearing was the conduct of the agent for the landlord, which the Tribunal Member failed to properly curtail or restrain. Mr. Paine repeatedly interrupted and monopolized the proceedings. Much of his cross-examination was unduly abusive, and the Member failed to control it. For example, at page 3-54 of the Transcript, Mr. Paine asked Mr. Manpel if he called the landlord’s office to advise them he would not be attending the scheduled meeting. Mr. Manpel started to answer, stating “Well, my lawyer . . .”, at which point Mr. Paine interjected with “No, just a yes-or-no question. Yes or no, did you call the office to advise them that you would be attending? Yes-or-no answer is what I require.” The Member then directed Mr. Manpel to answer the question yes or no, but said that if he then wanted to explain, he could. Mr. Manpel then answered “No” to that question and Mr. Paine immediately proceeded to ask six more questions, which he demanded be answered by “Yes” or “No”, following which he stated, “Okay, I have nothing further. I would like to make a motion at this time.”

35Mr. Manpel asked if he could explain the reasons for the answers he had given. The Board Member indicated he could but was immediately interrupted by repeated objections from Mr. Paine that Mr. Manpel had his opportunity to answer questions and should not be permitted to say anything further. The Board Member allowed Mr. Manpel to continue and he stated that although he had not called the landlord’s office, his lawyer sent a fax to the office and advised him not to attend. Mr. Paine then interjected again and asked, “May I retort [sic] that question?” The Board Member then permitted Mr. Paine to further cross-examine Mr. Paine for reasons that are unclear. The Member did not give Mr. Manpel any a further opportunity to add evidence by way of clarification, as he should have been permitted to do by way of, in effect, re-examination of himself. Instead, the Member invited Mr. Paine to proceed with his motion for dismissal.

36Any one of these matters might not be sufficient in and of itself to vitiate the entire hearing. However, after reading the transcripts of the proceeding in their entirety, it is apparent that the applicant simply did not receive a fair hearing. The cumulative effect of the impatience of the Tribunal Member, her frequent interjections, the rulings made without an evidentiary basis, the constant uncontrolled interruptions by Mr. Paine and the nature of the cross-examination conducted by Mr. Paine, leads to the inevitable conclusion that Mr. Manpel was simply not treated fairly. The hearing itself was unfair and a breach of natural justice.

Conclusion and Order

37Notwithstanding the very able submissions on behalf of the landlord by Mr. Zarnett (who it should be noted was not counsel at the hearing), it is not possible to say the result would have been the same if Mr. Manpel had been dealt with more fairly and if the Member had not erred in respect of the non-suit ruling. The hearing was fatally flawed. Therefore, the Order dated April 26, 2004 is quashed. A new hearing is directed before a different Board Member. Mr. Manpel shall be entitled to his reasonable costs, including any filing fees and photocopying expense throughout, the cost of transcripts and the fees of the court reporter at the original hearing. Mr. Manpel shall first submit his claim for costs in writing to Mr. Zarnett, together with receipts if available, within 30 days of the release of these Reasons. If the parties are not able to resolve the quantum of costs between them, Mr. Zarnett shall forward Mr. Manpel’s costs submissions and any response thereto on the part of the landlord to this court within 30 days after receipt of Mr. Manpel’s submissions, with a copy to Mr. Manpel. Mr. Manpel shall then have an additional 7 days to reply to Mr. Zarnett’s cost submissions by letter addressed to the Divisional Court.

MOLLOY J.

I agree:­­_______________________

MEEHAN J.

I agree:­­_______________________