Thomson v. Sisters of St. Joseph, 2010 ONSC 2337

CITATION: Thomson v. Sisters of St. Joseph, 2010 ONSC 2337

COURT FILE NO.: 360/09

DATE: 20100426

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: Thomas R. Thomson (Tenant/Appellant)

AND:

The Sisters of St. Joseph for the Diocese of Toronto in Upper Canada, (Landlord/Respondent)

BEFORE: Greer, Swinton and Cullity JJ.

COUNSEL: Thomas R. Thomson, in person

Paula Boutis and Karen Dawson, for the Landlord/Respondent

HEARD at Toronto: April 13, 2010

ENDORSEMENT

Swinton J.:

[1] Thomas Thomson (“the Tenant”) appeals from a decision of the Landlord and Tenant Board (“the Board”) dated July 10, 2009 granting the Landlord’s application to terminate his tenancy for non-payment of rent.

[2] The Tenant had also brought applications before the Board: for an order that the Landlord had collected or retained rent illegally, and for an order that the Landlord failed to meet its maintenance obligations.

[3] There were several appearances before the Board, including an adjournment to attempt mediation and an unsuccessful motion by the Landlord to require the payment of ongoing rent. On March 18, 2009, the Landlord gave notice that it would bring a motion to remove David Audain, another tenant who had been assisting Mr. Thomson, as representative. Apparently, the Board had no time to proceed with the motion or the applications that day.

[4] Motion materials were subsequently delivered which set out the Landlord’s objections to Mr. Audain’s participation. Essentially, the Landlord relied on Mr. Audain’s demonstrated conflict of interest, his refusal to conform to the norms of the administrative hearing process, his lack of skill as an advocate and his demonstrated contempt for the Landlord’s counsel.

[5] At the hearing on July 6, 2009, Mr. Thomson appeared with another representative, Mohamed Nazir. The Landlord then sought to amend its motion to exclude Mr. Nazir as representative.

[6] The Board found that it had jurisdiction to exclude Mr. Nazir based on Rule 2.2 of the Board’s Rules of Practice, which allows members to make procedural directions, and s. 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). It reads:

A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness …

[7] After Mr. Nazir was cross-examined on his qualifications, which included some evidence of legal education outside of Canada, the Board found that “his ability to represent the Tenant was completely inadequate”, and the Board granted the Landlord’s motion to remove Mr. Nazir.

[8] The Tenant then requested an adjournment to obtain new representation, which was denied. The Tenant was urged to consult with duty counsel, but he left the hearing without doing so. The Board dismissed his applications for lack of evidence and then heard evidence from the Landlord on the rent owing and granted the Landlord’s application.

[9] At one point, the Board asked the Landlord’s counsel (who is not counsel in this appeal) to explain “what was really going on here” and “what it was that the tenant was raising about this legal rent issue” (Transcript, p. 57).

[10] Counsel explained that there had been a dispute with the previous Landlord about the lawfulness of Notices of Rent Increase, and that another tenant had raised an issue of overpayment of rent based on invalid Notices of Rent Increase. She did not inform the Board that the Divisional Court had granted the appeal of Mr. Audain, the representative the Landlord had sought to exclude in this case, in a decision dated January 29, 2010 (Audain v. Sisters of St. Joseph for the Diocese of Toronto, 2010 ONSC 719). In that case, the Court stated that there had been a Board decision in 2007 determining the Notices of Rent Increase had been invalid from 1993. The Court held that the Landlord had an obligation to prove the lawful rent owing, given the illegal rent increases in the past, and it had not discharged that onus.

[11] An appeal lies to this Court only on a question of law (Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210).

[12] I see no basis in fact for the Tenant’s allegation of reasonable apprehension of bias on the part of the Board.

[13] While a tribunal has discretion whether to grant an adjournment, it must not act arbitrarily in denying an adjournment. As this Court stated in Kalin v. College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 at paras. 30 and 31:

[30] Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. Generally speaking, decisions made in the exercise of discretion are entitled to considerable deference, provided the discretion is exercised judicially and in accordance with principles of fairness and natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, at para. 18; Baker, supra, at para. 53.

[31] A Tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party: Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 1669 (ON SC), 24 O.R. (2d) 400, 99 D.L.R. (3d) 165 (Div. Ct.). However, in exercising its discretion as to whether to grant an adjournment, a Tribunal is not permitted to act arbitrarily. The Tribunal may take into account the public interest and the interest of the Tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means: Re Flamboro Downs, supra; Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134, 1993 9380 (ON SCDC), [1993] O.J. No. 997, 103 D.L.R. (4th) 437 (Div. Ct.); Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 5198 (Div. Ct.) , affd [2003] O.J. No. 4233 (C.A.).

See, also, Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484 at para. 48.

[14] In my view, the decision of the Board must be set aside on the basis that the refusal to grant the Tenant an adjournment was a denial of natural justice.

[15] Assuming, without deciding, the Board acted reasonably in refusing to allow Mr. Nazir to appear, it was unreasonable for the Board to refuse the adjournment. One of its reasons for doing so was that Mr. Thomson should have been prepared for an unfavourable outcome to the Landlord’s representation motion, and he should have been prepared to proceed.

[16] Mr. Thomson arrived for the hearing on July 6, 2009 with a different representative than Mr. Audain, undoubtedly because of the motion by the Landlord to remove Mr. Audain. The Landlord then changed the basis for its motion and sought to exclude Mr. Nazir. Mr. Thomson only requested the adjournment because of the motion brought that day against Mr. Nazir, of which he had not been given notice or any chance to prepare to meet. Mr. Nazir was removed as his representative because of information elicited by counsel for the Landlord at the hearing that day.

[17] It is noteworthy that the Landlord acknowledged in its motion materials, and repeated in oral submissions, that Mr. Thomson would need assistance in presenting his case. Mr. Thomson informed the Board that he went to George Brown College 30 years ago and had a Grade 7 literacy level.

[18] The stakes were important in this case for Mr. Thomson, as the legality of the rent increases over the years would figure into the determination of whether he was in arrears of rent and in what amount.

[19] It is unfortunate that Mr. Thomson did not consult duty counsel, but the advice provided by duty counsel is described several times in the transcript as “summary advice”. There was no assurance that duty counsel would represent him in the hearing. In any event, he was not required to have duty counsel represent him, as he had did not have confidence in that form of representation, given his past experience at the Board.

[20] The Board made reference to the number of appearances to date in the proceeding (10), without determining whether this was because the Tenant was at fault and attempting to delay. It is clear that the reason for some of those appearances could not be attributed to delaying tactics by the Tenant.

[21] The Board was also concerned about prejudice to the Landlord from the ongoing unpaid rent. If there was such a concern, the Board could have imposed terms of an adjournment, such as payment of rent in the interim. I note, however, that the Landlord’s earlier request for an interim order that the Tenant pay $300 per month was denied by another member of the Board on September 30, 2008. The Board member there noted the Tenant’s application raised a substantive issue of what the legal rent is.

[22] The Landlord submits that the Board’s Interpretation Guideline 1: Adjourning and Rescheduling Hearings (“the Guideline”) provides assistance on this issue. The Guideline provides that the right to representation provided for in s. 10 of the SPPA does not guarantee an adjournment, and the onus is on the party who wishes to be represented to make reasonable efforts to obtain representation and demonstrate that they have made reasonable efforts. The Landlord submits that the Guideline is clear: the Tenant had the onus to obtain representation, and he would not be automatically entitled to an adjournment if he failed to do so.

[23] In this case, Mr. Thomson had attempted to obtain representation and appeared with Mr. Nazir. He only sought an adjournment because of the removal of the representative he had brought to the hearing. Therefore, the Guideline does not apply.

[24] Nor is it determinative that the hearing on July 6, 2009 was peremptory to the Tenant. He appeared for the hearing ready to proceed and only sought the adjournment because of changed circumstances.

[25] In denying the adjournment, the Board acted unfairly and prevented the Tenant from a fair opportunity to present his case. I would allow the appeal, set aside the decisions of the Board granting the Landlord’s application and dismissing Mr. Thomson’s two applications, and refer these applications back to a different member of the Board.

[26] The Tenant seeks costs in the form of disbursements of $1,500.00. This sum seems very high, particularly as the Landlord paid for the transcript. I would order costs of $100.00 for printing, binding and other disbursements, payable by the Landlord.

Swinton J.

Greer J.

Cullity J.

Date: April 26, 2010