Court File and Parties

CITATION: Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006

DIVISIONAL COURT FILE NO.: DC-17-889 (Hamilton) DATE: 2018-02-09

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MATHESON, GLUSTEIN and DIAMOND JJ.

BETWEEN:

Robert Brewer and Michelle Brewer Appellants

– and –

The Landlord and Tenant Board Southern RO and Marco Faiazza Respondents

Self-Represented The Landlord and Tenant Board Southern RO, Not Appearing Gerry Falletta, Counsel for the Respondent Marco Faiazza

HEARD at Hamilton: February 9, 2018

Oral Reasons for Judgment

GLUSTEIN J. (ORALLY):

Nature of the appeal

[1] The appellant tenants, Robert Brewer (“Robert”) and Michelle Brewer (“Michelle”) appeal from two orders – the first of Member Petar Guzina of the Landlord and Tenant Board (the “LTB”) dated July 24th, 2017 in file number SOL-81422-17 (the “Guzina Order”) and the second a review order of Member Sean Henry of the LTB dated August 3rd, 2017 in file number SOL-81422-17-RV upholding the Guzina Order (the “Review Order”). The orders were made with respect to Robert but there is no issue raised as to Michelle’s standing on this appeal.

[2] The respondent, Marco Faiazza (“Faiazza”), is the landlord.

[3] The appeals are brought under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).

[4] While the notice of appeal refers only to the Guzina Order, the factum and submissions challenge both orders.

Background

[5] There have been several hearings in relation to this matter.

[6] At an initial hearing on May 25th, 2017, Faiazza sought (i) to terminate the tenancy and evict Robert for being persistently late in paying rent and (ii) compensation for each day Robert remained in the unit after the termination date. At that hearing, Faiazza’s legal representative requested an adjournment since he felt “overwhelmed” by the issues Robert raised under s. 82 of the RTA about the condition of the premises.

[7] That application by Faiazza was dismissed by Member Henry by reasons dated May 30th, 2017 in File No. SOL-81911-17. Member Henry held that the Notice of Termination was “fatally defective” since “it does not set out sufficient detail to give the tenant adequate notice of the case he is required to meet” and only stated that “The tenant is always late on their rent every month”.

[8] On the same day, Member Henry conducted a hearing in File No. SOL-81422-17-IN in which Faiazza sought to terminate the tenancy and evict Robert because “the Tenant did not pay the rent that the Tenant owes”. At that hearing, Robert raised the same issues about the premises. The complaints related to various matters, including the condition of appliances, bathroom fixtures, a water tap, a fan, and the cost of a replacement garage door opener.

[9] That hearing was adjourned so that Faiazza could respond to Robert’s claims. The new hearing date was made peremptory to both parties. The decision was dated May 30th, 2017.

The Guzina Order

[10] The hearing was returned on July 20th, 2017. The Brewers, and Faiazza’s representative, attended at the hearing for the scheduled time in the morning. However, Member Guzina held down the hearing so that Faiazza’s legal representative could deal with an unopposed matter in another hearing room and so that Robert could have the opportunity to obtain legal advice from duty counsel. At some point, Member Guzina advised the Brewers to return at approximately 1:10 pm after the lunch break.

[11] The Brewers did not return after the lunch break. In his order dated July 24th, 2017, Member Guzina found that Robert had “abandoned” the issues he raised about the premises since:

a. Robert did not appear to make submissions at the hearing after “being advised prior to the lunch break to return at approximately 1:10 pm”; and

b. Although Member Guzina waited an additional 45 minutes due to a “slowdown in the elevator service”, Robert “was nowhere to be found after the security guard searched the floor, the lobby, and directly outside of the entrance to the building”.

[12] Member Guzina found that Robert’s behaviour was “unreasonable”.

[13] Member Guzina ordered that the tenancy be terminated and that Robert vacate the rental unit by August 4th, 2017. Member Guzina ordered that Robert pay the following amounts:

a. $2,530.80 for rent owing and compensation up to July 24th, 2017, less the rent deposit and interest Faiazza owed to Robert on the rent deposits;

b. $37.81 per day for compensation for the use of the unit starting on July 25th, 2017 to the date Robert moved out of the unit;

c. $190 for the costs of Faiazza filing the application, and

d. $300 in costs for the attendance of Faiazza’s legal representative at the hearing.

[14] Member Guzina further ordered that Robert could void the order by paying the arrears and costs, less the rent deposit Robert paid to Faiazza and the amount owed to Robert as interest on the rent deposit. Member Guzina also made ancillary orders relating to enforcement and interest owed on outstanding amounts.

[15] Member Guzina further held that “I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the “Act”), and find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act”.

The Review Order

[16] Robert sought a review of the Guzina Order.

[17] In the Review Order dated April 3rd, 2017, Member Henry denied Robert’s request for a review of the Guzina Order. Member Henry stated that “a preliminary review of the review request was completed without a hearing”.

[18] Robert raised two grounds in his request for review before Member Henry.

[19] The first ground was that the elevator was not in a “slowdown”, but rather was not functioning. Robert asserted that he and Michelle were in the third floor underground parking garage and could not attend given the 18 flights of stairs to the LTB hearing room and Michelle’s disability.

[20] Member Henry set out Robert’s assertion in his request for review that:

I was unable to participate in this Hearing because my wife (co tenant and witness) and I were on the P3 parking level which had no elevator service at the time of the hearing. My wife/witness and I were attempting to return from the lunch when we met up with Christina Oliveria caseworker #7361 (see attachment) and her co worker in front of the elevator entry. They informed us the elevators had in-fact been shut down and that there were 9 floor or 18 flights of stairs to Floor 6 and the ground floor access elevators that were running at “Use your own risk”. I did not feel this was acceptable or reasonable to my wife or myself. This was especially harmful to my wife/witness/co tenant because she is disabled and was still nursing a sprained knee…It was at this time I decided I could not wait any longer, I was unwilling to leave my wife who was having trouble breathing and I was also missing work…

[21] Member Henry rejected this ground of review. Member Henry agreed with Robert that it was reasonable for him not to attend at the hearing. Member Henry held:

It was appropriate for the Tenant to decline taking an elevator to the floor where the hearing room is located at a time when the functionality of the elevator was in question. It was appropriate for the Tenant to decline taking several flights of stairs where the hearing room is several stories up from ground level and the Board has established an [sic] reasonable expectation in the mind of the public that it will facilitate access by providing an elevator service. It was appropriate for the Tenant to have declined taking the stairs out of concern of abandoning his spouse who was having trouble breathing and who was physically unable to take the stairs.

[22] However, Member Henry held that Robert “simply walked away from the hearing” and that Robert’s conduct was “not appropriate”. Member Henry held:

However, it was not appropriate for the Tenant to have simply walked away from the hearing. He bore a positive obligation to contact the Board at that time, perhaps by telephone, to advise of his circumstances. This would have allowed the hearing Member to consider appropriate ways to accommodate him, such as holding down the hearing until later in the day when the elevator issue was resolved, allowing the Tenant and his witnesses to participate in the hearing by telephone, or, in the most extreme circumstance, adjourning the hearing to another day. Importantly, in his request, the Tenant neither indicates that his spouse required immediate medical attention for her breathing problem nor that he was unable to access a telephone to contact the Board.

[23] The second ground relied upon by Robert for review was that Member Guzina erred by awarding costs to Faiazza in the amount of $300 for the attendance of his legal representative at the hearing. Member Henry set out Robert’s submission in his review request that:

I see the $470 dollars he awarded my landlord to be unprecedented and an amount not given in the Superior Court for an actual lawyer versus the Paralegal my [landlord] had….

[24] Member Henry dismissed this ground of review. He held that Robert’s “disagreement with the costs awards of $300 does not give rise to an apparent serious error”. Member Henry held:

This involves an exercise of the Member’s discretion, which is entitled to deference. The Board will not exercise its discretion to review these types of decisions where the result is within the range of reasonable, acceptable outcomes. Here, there is a logical connection between the award and the reason the Member provides for making the award and the award is within the range of amounts permitted under Rule 27 of the Board’s Rules of Practice, “Ordering Costs to a Party or LTB Costs”.

[25] On August 4th, 2017, Michelle also made a request to review the Guzina Order, but her request was denied by letter from the LTB dated August 11th, 2017, as Robert had already made a request for review of that order.

Position of the Appellants

[26] The Brewers rely on two grounds of appeal.

[27] First, they submit that that it was not fair that they were (i) denied the opportunity to make submissions before the LTB at the hearing before Member Guzina, and (ii) denied a review hearing by Member Henry.

[28] Second, they submit that (i) the order of Member Guzina that Robert pay costs of $300 for the attendance of Faiazza’s legal representative and (ii) the Review Order which upheld the Guzina Order on that issue, constitute reviewable error.

[29] The Brewers ask the court to set aside the orders and provide for a new hearing.

The review process under the RTA

[30] A review hearing under s. 209(2) of the RTA is available if a party was not reasonably able to participate in a hearing. Under the heading “Power to Review”, the section provides:

Power to review

(2) Without limiting the generality of section 21.2 of the Statutory Powers Procedure Act, the Board’s power to review a decision or order under that section may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding. 2006, c. 17, s. 209 (2).

[31] Similarly, under Rule 29.2 of the Landlord and Tenant Board Rules of Practice:

The LTB may exercise its discretion to review where satisfied the order contains a serious error, a serious error occurred in the proceeding or the person making the request was not reasonably able to participate in the proceeding.

[32] Under Rule 29.8, the request must be made and include “a detailed description of the alleged serious error or explanation why the requestor was not reasonably able to participate in the hearing”.

[33] The steps to a review are summarized in Interpretation Guideline 8 – Review of an Order (the “Guideline”). There are two steps to a review. First, there is a “preliminary review”, where:

a. The reviewing adjudicator decides if the order may contain a serious error or whether the requestor may not have been reasonably able to participate.

b. The request may be dismissed at this point because all the information required by Rule 29.8 has not been provided or the request does not provide enough detail in its support or if it does not meet the tests for review.

[34] Under the Guideline, if the request is not dismissed at the preliminary review, the LTB will “send it to the second stage: the review hearing”, where the LTB “considers the parties’ positions and decides the request to review.” Unless there are “very complex” issues, where the review hearing is held in person, “the LTB will make its decision on the request to review immediately and the re-hearing will follow the same day. Therefore, parties should bring their witnesses and all relevant evidence with them to the review hearing.”

[35] In the Guideline, the LTB states that it “will refuse requests where the requestor’s absence was the result of negligence or it finds no reasonable explanation for the failure to attend.”

[36] The LTB also gives examples in the Guideline of cases where a party was found “not reasonably able to participate”, including that the “Requestor was at the LTB but provides a reasonable explanation why he or she was not present in the hearing room when the application was decided.”

Natural justice

[37] It has been repeatedly held that a failure of natural justice is reviewable on appeal by this court (see Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (Div. Ct.) (“Decosse”); and Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) (“Duncan”)).

[38] I adopt the following summary of the requirement for natural justice from Decosse (at paragraphs 6-8):

A Tribunal is required to comply with the requirements of natural justice. There is no standard of review. On appeals on questions of law, the standard of review to be applied is correctness.

Failure to meet the standards will result in a Tribunal's order being quashed.

Under the Residential Tenancies Act, 2006, S.O. 2006 c. 17, there is a statutory right of appeal on questions of law alone, a factor suggesting a more rigorous standard of review. Further, the Court has wide powers on appeal, and may affirm, rescind, replace, or amend the decision below, remit the matter back with the opinion of the Court, and make any other order that it considers proper. It may substitute its own opinion for that of the Tribunal.

Decisions of the Divisional Court addressing whether a party was not reasonably able to participate at the hearing

[39] In Decosse, the court set aside both the eviction order and the request for review order and remitted the matter to the LTB differently constituted for a rehearing of the landlord’s application for eviction. The proceeding had taken place in the absence of the tenant and an eviction order had been issued.

[40] The court noted the tenant’s prior attendance before the LTB and his clear intention to dispute the landlord’s application (at paragraph 2). The request for review had been denied on the basis of the Member’s conclusion that “the tenant provided no evidence to support his statement that road construction caused his bus to be late” (at paragraph 5).

[41] In Duncan, the court held that it was a denial of procedural fairness for the LTB to dismiss a request for review when the LTB ought to have heard evidence as to the reasons why the tenant did not attend the hearing. In Duncan, the tenant stated in his request for review that “he had been unable to attend because he had a substance abuse problem” and that “his abuse issues ‘may’ have led to his failure to attend the hearing” (at paragraph 1).

[42] The court held (at paragraphs 2-5):

We take seriously the right of parties to be heard. It is a fundamental precept of our system of justice. The process of review is important. Appeals are limited.

The issue is a matter of natural justice (audi alteram partem). As such it is generally understood that there is no standard of review to be applied. With the prospect of the issue of drug abuse having been raised and the presence of the concern having been referred to by witnesses called by the landlord at the hearing before the Landlord and Tenant Board it was incumbent on the member who undertook the review to conduct a further inquiry, to hold a hearing, to determine if there was a substantive reason why the tenant had failed to attend.

The review Board did not properly account for and consider the importance of the right to be heard. The obligation of the review Board in this case is consistent with the values expressed in the Human Rights Code and its quasi-constitutional status.

The appeal is allowed. The matter is remitted to the Landlord and Tenant Board to hold a review hearing to determine if there was a reason the tenant failed to attend that would justify and support a fresh hearing.

Analysis

[43] Member Henry on the request for review held that Robert “bore a positive obligation to contact the Board at that time, perhaps by telephone, to advise of his circumstances”. Member Henry made that finding without hearing any evidence as to (i) whether the Brewers had a cell phone, (ii) whether there was a telephone number that existed to reach the local office of the LTB on such short notice in an effective manner to advise that the Brewers could not attend, or (iii) whether cell phone service, or such a telephone number for the LTB, if it existed, was readily available to the Brewers in a parking garage three floors below ground when the Brewers asserted that they had been told by workers in the building that the elevators had shut down.

[44] Member Henry made the decision to deny the review without hearing evidence on any of those issues, after accepting that (i) it was reasonable for the Brewers not to try to take the elevator given that the functionality was in question and (ii) it was reasonable for the Brewers not to climb the 18 flights of stairs to the 6th floor given (a) there was an expectation elevator service should have been available and (b) Michelle’s disability.

[45] Member Henry also dismissed the review without hearing evidence from the Brewers about their submissions that the case workers who worked in the building, including one who gave the Brewers her business card, told the Brewers that the elevators were shut down. Member Henry dismissed the review without hearing evidence as to the condition of Michelle, who Robert advised was “disabled”, “still nursing a sprained knee” and faced a walk of 9 floors (or 18 flights of stairs) to get to the hearing.

[46] Member Henry concluded that Robert “simply walked away from the hearing” and “bore a positive obligation to contact the Board at that time, perhaps by telephone, to advise of his circumstances”, even though Member Henry did not give the Brewers an opportunity to present evidence relevant to those submissions.

[47] Robert’s request set out circumstances that demonstrated he may not have been reasonably able to participate, and natural justice required a hearing to address those issues. This is even more so given that the Brewers (i) expressed a clear intention to oppose the relief sought, which was known to the landlord and (ii) attended at all prior hearings, including on the day of the hearing at the scheduled time, which did not proceed at that time at least in part because of a request from Faiazza’s representative to attend an unopposed matter in another hearing room.

[48] In Duncan, the remitting of the matter to the Board to hold a review hearing was ordered in circumstances when the appellant (i) did not even attend the hearing and (ii) submitted that he may have missed the hearing due to substance abuse, circumstances much less compelling than in the present case, and consistent with the broad view of procedural fairness required by this court.

[49] The landlord’s oral submissions focused on two matters: (i) unpaid rent, which is disputed and not relevant to the issues on this appeal; and (ii) alleged delay tactics by the appellants, which is contrary to the evidentiary record. Neither of these issues warrant dismissing the appeal.

[50] For the reasons I discuss above, I grant the appeal and remit the matter to the LTB, to a different Member, to hold a review hearing to determine if the Brewers were reasonably unable to attend the hearing, and if so, to conduct the fresh hearing. As a result, the Review Order is set aside, and the LTB at the subsequent review hearing will consider whether the decision in the Guzina Order is to be maintained.

MATHESON J. ENDORSEMENT:

[51] For reasons given orally, this appeal is granted, and we remit the matter to the Landlord Tenant Board to hold a review hearing before a different Member to determine if the appellants were reasonably unable to attend the hearing, and if so, to conduct a fresh hearing. The order of Member Henry, dated August 3, 2017, is set aside.

[52] The respondent landlord, who unsuccessfully opposed this appeal, shall pay costs fixed at $150 all-inclusive.

Glustein J.

I agree

Matheson J.

I agree

Diamond J.

Date of Reasons for Judgment: February 9, 2018 Date of Release: February , 2018

CITATION: Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 DIVISIONAL COURT FILE NO.: DC-17-889 (Hamilton) DATE: 2018-02-09

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MATHESON, GLUSTEIN and DIAMOND JJ.

BETWEEN:

Robert Brewer and Michelle Brewer Appellants

– and –

The Landlord and Tenant Board Southern RO and Marco Faiazza Respondents

ORAL REASONS FOR JUDGMENT

Glustein J.

Date of Reasons for Judgment: February 9, 2018 Date of Release: February , 2018