Khani v. Zhang, 2019 ONSC 1362

Khani v. Zhang, 2019 ONSC 1362

CITATION: Khani v. Zhang, 2019 ONSC 1362

DIVISIONAL COURT FILE NO.: 376/18 LANDLORD AND TENANT BOARD FILE NOs.: TNL-04214-18 and TNL-04214-18-RV

DATE: 20190226

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MULLINS, MYERS, and FAVREAU JJ.

BETWEEN:

MARAL KHANI Appellant/Tenant

– and –

RONGHUA ZHANG Respondent/Landlord

COUNSEL: Neal Altman, for the Appellant/Tenant Timothy Duggan, for the Respondent/Landlord

HEARD at Toronto: February 26, 2019

Oral Reasons for Judgment

MULLINS J. (Orally)

1The Applicant’s residential tenancy was terminated for failure to pay rent by Order of Member Louise Horton given May 18, 2018. The Applicant brings this appeal from the Order of the Landlord and Tenant Board June 18, 2018, wherein the Board refused to hold a review hearing of the Termination Order of May 18, 2018. The Applicant seeks relief setting aside the Preliminary Review Order and the Termination Order, and, in the alternative, an order that a review hearing take place.

2Before termination, the Applicant lived at 198 York Mills Road in North York as the tenant of Ronghua Zhang, the Landlord/Respondent. The Respondent served Ms. Khani with a Notice of Termination, effective April 17, 2018 based on allegations she had failed to pay rent from January 1, 2018. The Landlord applied to the Landlord and Tenant Board (the “Board”) seeking to terminate the tenancy and evict the Applicant for failure to pay rent pursuant to s. 69 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”). The hearing was scheduled for May 15, 2018.

3The Application was heard by the Board on May 15, 2018. The Landlord/Respondent’s representative attended the hearing. The Applicant did not attend, and so presented no defence.

4Member Louise Horton determined at the hearing of May 15, 2018, that the Applicant had not paid the total rent she was required to pay for the period from January 1, 2018 to May 31, 2018. Member Horton ordered that unless the Applicant voided the order by paying $11,675 to the Respondent before May 29, 2018, the tenancy would be terminated. Should rent not be paid as ordered and the tenancy terminated, the Applicant was obliged to move out of the rental unit on or before May 29, 2018, and was to pay the Respondent $8,177.42. This latter sum was the amount of rent and compensation the Tenant was determined to owe to the Landlord, less her deposit and the interest on her deposit. The Applicant was also ordered to pay the Respondent $175 for the cost of filing the application.

5The eviction was enforceable by the Court Enforcement Office (Sheriff) on or after May 30, 2018.

6The Applicant filed a request for review of the Termination Order dated June 12, 2018.

7The Applicant set out her grounds for the review in a schedule to the request. She explained that she had not received notice of the hearing. She was unable to explain why she did not receive of the notice of hearing, notwithstanding having received a copy of the Termination Order in her mailbox after the hearing.

8The Applicant submitted that she had a valid defence to the Respondent’s claim for unpaid rent, on the basis he was obliged to reimburse her for expenses she had incurred, which she sought to set-off against the rent owing. The Applicant stated that she had incurred $7,242.44 of expenses relating to furnace problems within the rental unit, and replacement of the fridge and television. She said that the Respondent had confirmed he would reimburse her for some of these, but had not done so. The Applicant also asserted that she was entitled to a rent abatement and general damages of $2,500 owing to the unreasonable amount of time the Respondent took to fix other issues with the property, including mould and a lack of a carbon monoxide detector and smoke alarm.

9By the Order of June 18, 2018, Vice Chair on a preliminary review, dismissed the Applicant’s request for review, without holding a hearing. The Vice Chair was not satisfied that a serious error had been made in the original order or the proceedings.

10The Vice Chair found that the Applicant had been given a reasonable opportunity to participate in the initial hearing, but either did not exercise due diligence in checking her mail or chose not to attend. The Notice of Hearing was mailed to the Applicant on May 15, 2018 and by operation of the Statute was deemed to have been be received five days following mailing. The Vice Chair reflected on the circumstances that the rental unit was a house and the mailbox not shared. He considered the circumstance that the Applicant had no apparent difficulty receiving the Termination Order at that same address.

11With respect to the Applicant’s claims against the Respondent for rent abatement, damages and costs of repair, the Vice Chair noted that the Applicant was free to pursue these claims by filing her own Application.

12The Termination Order was enforced by the Court Enforcement Office (Sheriff) on or about June 20, 2018. The Applicant no longer resides in the unit.

13The Applicant relies on section 210(1) of the Residential Tenancies Act with regard to the Divisional Court’s jurisdiction.

14This provides that any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

15Section 209(2) of the Residential Tenancies Act gives the Board the power to review its decisions where a party to a proceeding was not reasonably able to participate.

16The parties agree that the standard of review of the decision of the Vice Chair is reasonableness.

17Rule 29.11 of the Landlord and Tenant Board’s Rules of Practice states that the Board will conduct a preliminary review of the request for review and may dismiss the request if the grounds for considering a review are not satisfied, among other grounds.

18The Applicant states that the Board’s dismissal at the preliminary review stage without hearing the Tenant’s evidence was a denial of natural justice, violated the Board’s Rules as neither Rule 29.11(a) or (c) were satisfied, and ignored previous Board decisions granting reviews on the basis that mailed notice was not received by the responding party to the application. For this last submission, the Applicant refers to the Board’s decision in Re SWL-38942-12-RV, 2012 85336 (ON LTB), in which the Board found that the Landlord did not receive notice of hearing that was mailed to him and was not reasonably able to participate.

19The Respondent submits that the Board evaluated the evidence provided in the Request for a Review to the effect that the Appellant did not receive notice and found that it did not constitute a reasonable excuse for not participating. The Respondent points out that the Applicant stated in the Request for a Review that she had no explanation for her failure to receive the Notice of Hearing.

20The failure of the Board to conduct a full hearing in circumstances where the issue is one of credibility was, submits the Appellant, an error in law. The Appellant draw analogy to the circumstances before the court Khan v. University of Ottawa, 1997 941 (ON CA), 34 O.R. (3d) 535, (CA).

21In Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.), where circumstances where a landlord failed to appear at a Board hearing and sought a review on the basis that it did not have a reasonable opportunity to participate, this Court held that it was not an error in law for the Review Board to find that a lack of diligence constituted a reason not to grant the landlord a re-hearing. The Divisional Court accepted that the Board in that case had an evidentiary basis for its finding, as the Notice of Hearing was mailed to the landlord’s correct address, mail is deemed to be received five days later under the Act, and the Notice of Hearing was not returned to the Board by Canada Post.

22S. 191(1)(f) of the Residential Tenancies Act provides that a notice or document is sufficiently given to a person other than the Board “… (f) by sending it by mail to the last known address where the person resides or carries on business”. It provides that a notice sent by mail is deemed given on the fifth day after mailing.

23In conducting a preliminary review of the Applicant’s request for a review, the Board conducted itself in accordance with the provision of the governing statute. The Vice Chair considered the Applicant’s submissions as to why she did not receive notice of the hearing that resulted in the termination order. In so doing, the Vice Chair made findings of fact in respect of which he is entitled to deference. In interpreting the statutory provisions governing service of the Notice of Hearing, the conduct of a preliminary review of the Applicant’s request for a review, the decision given by the Vice Chair falls within the range of outcomes that was open to him on the evidence and the applicable law.

24Despite the able arguments of counsel for the Appellant, we do not agree that it was an error in law in the exercise of decision making before the Tribunal without having conducted an oral hearing in all of the circumstance.

25Wherefore, the appeal is dismissed.

26I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed for oral reasons given. The Respondent shall have costs fixed at $5,000.00 (inclusive of HST) payable within 120 days.”

MULLINS J.

I agree _______________________________

F.L. MYERS J.

I agree _______________________________