Toronto Community Housing Corporation v. Naidoo, 2018 ONSC 2685

CITATION: Toronto Community Housing Corporation v. Naidoo, 2018 ONSC 2685

DIVISIONAL COURT FILE NO.: 009/17

Landlord and Tenant Board File No.: TNL-81455-16 DATE: 20180507

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. Horkins, Conway, Emery JJ.

BETWEEN:

Toronto Community Housing Corporation

Landlord/ Respondent

– and –

Dhaneshwari Naidoo

Tenant/Appellant

Hannah Kohn, for the Landlord/ Respondent

Yodit Edemariam and Lesli Bisgould, for the Tenant Appellant

Eli Fellman and Sabrina Fiacco, for the Landlord and Tenant Board

HEARD at Toronto: April 18, 2018

Corrected reasons for judgment

The text of the original judgment released on May 7, 2018 were corrected on July 10, 2018 and the explanation of the corrections is appended as Corrigendum after the signature page.

C. hORKINS J.

1The appellant Dhaneshwari Naidoo appeals the order of the Landlord and Tenant Board (the “Board”) issued on October 28, 2016 and the review order of the Board issued on December 29, 2016, terminating her tenancy and ordering an eviction on the basis of illegal acts and impairment of safety.

2The respondent, Toronto Community Housing Corporation (the “landlord”) brings a motion to introduce new evidence on this appeal. As I will explain, the evidence meets the test for allowing new evidence on an appeal.

3The appellant has lived in a rent-geared-to-income unit (the “Unit”) for 25 years.

4On September 30, 2015, the police executed a search warrant in the appellant’s Unit. The appellant’s son, Bryan, who was an occupant of the Unit, was charged with a number of offences relating to the unauthorized possession of a firearm and drugs, as a result of items that were found in the Unit.

5On May 2, 2016, the landlord applied to the Board to evict the appellant on the basis of Bryan’s illegal actions and the impairment of safety of others in the residential complex, pursuant to ss. 61 and 66 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

6The Board heard the application on August 31, 2016. Bryan did not testify. The landlord called two witnesses: Detective Ditlof, the second officer in charge of the raid carried out in the residential complex but not directly involved in searching the Unit, and Joan White, the landlord’s local Operating Unit Manager. The appellant, her neighbour and Pastor also testified.

7The Board carefully considered the evidence and rejected the following allegations in the landlord’s Notice of Termination: that Bryan engaged in trafficking guns, was in possession of cocaine or in possession of cocaine for the purpose of trafficking and that Bryan was a member of a criminal gang.

8Based on uncontested evidence, the Board found that Bryan was an occupant of the Unit on September 30, 2015. The Board also found that Bryan committed an illegal act involving the possession of an illegal drug, MDMA, for the purpose of trafficking in the Unit, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To reach this conclusion, the Board considered the quantity of the drug found and the paraphernalia seized (cash, currency, weighing scales and a loaded gun). The Board found that this was all indicia of drug trafficking.

9The Board also accepted the uncontested evidence that Bryan knowingly possessed an unauthorized firearm, loaded with ammunition and carelessly stored in the Unit. This was contrary to ss. 86(1), 91(1) 92(10 and 95(1) of the Criminal Code, R.S.C., 1985, c. C-46.

10The Board found that Bryan’s conduct was serious and had the potential to negatively affect the character of the residential complex, disturb the landlord’s and other tenants’ reasonable enjoyment of the premises and cause disability or death.

11Based on this uncontested evidence, the Board found that Bryan seriously impaired the safety of other persons in the residential complex.

12The appellant sought relief from eviction under s. 83 of the Residential Tenancies Act. The landlord opposed this request. The appellant testified that she would respect a condition that Bryan not be allowed to live in the Unit, if she could continue to reside in the Unit. The appellant’s neighbour testified that she had been in a similar situation with her son two years prior and that instead of evicting her, the landlord imposed conditions to protect the residential complex.

13The Board considered the evidence of the appellant’s personal and medical circumstances that would make eviction difficult for the appellant to handle. The Board noted that the appellant does not condone having guns and drugs in the Unit and was very upset when she found out that Bryan kept a loaded gun in the Unit.

14The Board also took into account the serious problem that the community has with guns, drugs and shootings. The landlord testified about its efforts to keep the community safe. The landlord explained that orders to exclude the offending family member from the property do not work because the remaining family member is unable to fulfill the condition. As a result, the landlord explained that its only recourse is to apply to the Board to evict the household that brings guns and drugs into the residential complex.

15The Board found that the appellant’s proposal to impose a condition excluding Bryan from the Unit was “not practical or realistic” and compliance with the condition was unlikely because of the appellant’s soft parenting skills. Further, the Board observed that the appellant had put her son’s interests ahead of the safety of the community when she agreed to allow Bryan to live with her while on bail.

16The Board concluded that Bryan had committed illegal acts and impaired the safety of other persons in the residential complex. The Board issued an order terminating the appellant’s tenancy. Relief from eviction was denied. However, the eviction was delayed until December 31, 2016.

17The appellant’s request to review the October 28, 2016 order was denied on December 29, 2016.

Jurisdiction of the Divisional Court and Standard of Review

18Pursuant to s. 210(1) of the Residential Tenancies Act, an appeal from the Board lies to the Divisional Court, but only on a question of law. When a tenant appeals an order of the Board on a question of fact or mixed fact and law, the Divisional Court does not have the jurisdiction to hear the appeal.

19Decisions of the Board are entitled to deference and questions of law are reviewable on a standard of reasonableness, unless they are questions of law of central importance to the legal system and outside the adjudicator's area of specialized expertise: First Ontario Realty Corp. v. Deng, 2011 ONCA 54, at para. 17; Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 at paras. 30-31; Barnum v. Parker, 2014 ONSC 1805 at para. 11; Toronto Community Housing Corp. v. McGowan, 2016 ONSC 172 at para. 4.

20The Board is charged with administering a specialized adjudicative regime for resolving disputes with which it has particular familiarity. When the Board is interpreting its "home statute" or making determinations with respect to its core functions, the standard of reasonableness applies to these determinations.

21If an issue of procedural fairness and natural justice is raised on appeal, then this issue is reviewable on the basis of whether or not the rules of natural justice and fairness were violated: First Ontario v. Deng, at paras. 17 and 20.

Grounds of Appeal

22The appellant’s grounds of appeal as stated at the hearing of this appeal are as follows:

(i) The Board erred in law by misinterpreting and misapplying s. 61 and 66 of the Residential Tenancies Act.

(ii) The Board erred in law in its application of s. 83 of the Residential Tenancies Act when considering relief from eviction.

(iii) The Board denied the appellant natural justice by making a decision based on allegations for which there was no direct evidence.

23It is evident that the first two grounds of appeal are really asking this court to review the Board’s findings of fact. At best, these grounds raise mixed questions of fact and law. Neither ground engages a pure question of law.

24Sections 61(1) and 66(1) of the Residential Tenancies Act give the landlord the right to seek termination of the tenancy when an occupant commits an illegal act or seriously impairs the safety of the community.

25The appellant argues that the Board erred in law because it concluded that an illegal act had been committed without any reference to the definition of “illegal drug”, “possession” and “trafficking” as found in the Controlled Drugs and Substances Act or the definition of “firearm” and its possession as found in the Criminal Code. Further, the appellant argues that the Board erred in law when it relied on hearsay evidence to find that an illegal act was committed that seriously impaired the safety of the community.

26The appellant has not identified an error of law. The Board relied on uncontested evidence to support its findings that Bryan possessed a loaded unauthorized firearm and an illegal drug for the purpose of trafficking. It is clear from the Board’s reasons that the uncontested evidence met the definition of “illegal drugs”, “possession” and “trafficking” in the Controlled Drugs and Substances Act and the Criminal Code. These are findings of fact that are not reviewable on appeal.

27The hearsay evidence of Bryan’s illegal acts was Detective Ditlof’s evidence, supported by his review of photographs he saw, reports he read and conversations he had with the officers involved, and the first page of the Toronto Police Service Prosecution Summary. The fact that the Board relied on hearsay evidence does not raise an issue of law. Hearsay evidence is admissible, pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 that states:

a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, …

The Board’s reliance on hearsay evidence was correct in law. At best, this is a ground that raises a question of mixed fact and law and is not appealable.

28As Detective Ditlof stated, a “real firearm” was found in Bryan’s room. It was loaded and Bryan did not have a licence to possess a firearm. As well, the police seized the illegal drug, MDMA, and various drug paraphernalia that the police believed was used for the purpose of packaging and selling drugs. Bryan gave a statement to the police on the day of his arrest, stating that the firearm and drugs belonged to him.

29Detective Ditlof testified that there is a concern for the safety of the neighbourhood because of drugs and gun violence in the area. Specifically, he stated that Bryan’s continued presence in the community was a safety concern because of his “criminal lifestyle”. The appellant’s Pastor also testified about the safety concerns in the community due to drugs, gangs and guns.

30Section 83 involved the Board’s consideration of the appellant’s request for relief from eviction. The appellant’s argument focuses on the Board’s review of the evidence. She argues that the Board did not consider all of the circumstances in support of her request and states that relief should have been granted. The Board clearly considered the sympathetic circumstances of the appellant and weighed this against the community’s need for safety. The Board found on the facts that it was not practical or realistic to impose a condition excluding Bryan from the Unit, while allowing the appellant to stay. These are matters of fact that are not reviewable on appeal.

31Furthermore, the fresh evidence that the landlord seeks to introduce is direct evidence of Bryan’s criminal conduct that impaired the safety of the community. On March 21, 2017, Bryan pled guilty to possession of a loaded firearm without being the holder of an authorized licence and possession of a Schedule II substance (MDMA) for the purpose of trafficking.

32This fresh evidence meets the test in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at p. 11 and is admitted on this appeal. The evidence could not have been obtained and adduced at the hearing. It is relevant because it supports and confirms the hearsay evidence that the Board relied upon and it is capable of belief because Bryan pled guilty to these offences. Finally, if it had been available at the hearing it would have supported the result.

33While the third ground of appeal is framed as a denial of natural justice or procedural fairness, it is a complaint that focuses on the Board’s reliance on hearsay evidence.

34The appellant states that she was denied natural justice because there was no meaningful opportunity for her to challenge the hearsay evidence that the respondent presented. She also claims that natural justice was denied because the Board reversed the landlord’s onus by drawing an adverse inference from Bryan’s failure to testify, but not from the landlord’s failure to call any of the police officers with direct knowledge of the search warrant.

35As I have explained, the Board is entitled to rely on hearsay as it did in this case. The fact that it did, cannot give rise to a claim that the appellant was denied natural justice. Further, we are not persuaded that the Board drew any adverse inference from Bryan’s failure to testify.

36In conclusion, the appellant’s appeal is dismissed.

37The landlord seeks costs of $883.77 as reimbursement for the disbursements incurred on this appeal. The Board does not seek costs. Given the appellant’s circumstances, I make no costs order.

___________________________ C. Horkins J.

Conway J.

Emery J.

Released: May 7, 2018

Date of corrected reasons for judgment: July 10, 2018

CITATION: Toronto Community Housing Corporation v. Naidoo, 2018 ONSC 2685

DIVISIONAL COURT FILE NO.: 009/17

Landlord and Tenant Board File No.: TNL-81455-16 DATE: 20180507

DATE OF CORRECTED REASONS FOR JUDGMENT: 20180710

CORRIGENDUM

A clerical error in the citation line at the top right hand corner of the first page as well as the back page of the reasons has been corrected (the word “Dhaneshwar” before the word “Naidoo” has been deleted). The citation line now reads as follows:

CITATION: Toronto Community Housing Corporation v. Naidoo, 2018 ONSC 2685

As well, clerical error in the style of clause was made in naming “Landlord and Tenant Board” as “respondent”. The style of clause has been corrected to read as follows:

Toronto Community Housing Corporation

Landlord/ Respondent

– and –

Dhaneshwari Naidoo

Tenant/Appellant

A typographically error was made in the first name of “Fellman”, one of the counsel for the Landlord and Tenant Board which appears on the right hand side of the style of cause on the first page of the reasons. The first name of Fellman has been corrected to read as follows: