Decosse v. Miklos, 2019 ONSC 6034
CITATION: Decosse v. Miklos, 2019 ONSC 6034
DIVISIONAL COURT FILE NO.: DC-2101-19
LANDLORD AND TENANT BOARD FILE NO.: NOL-31086-18
DATE: 2019-10-18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. GORDON, LABROSSE, MacLEOD JJ.
BETWEEN:
Rick Decosse Appellant
– and –
Richard Miklos Respondent
Landlord and Tenant Board
Self-represented
Self-represented Jason Tam, for the Landlord and Tenant Board
HEARD at Sudbury: October 15, 2019
DECISION ON APPEAL
THE COURT
Overview
[1] Mr. Decosse (the “Appellant”) appeals to the Divisional Court pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. c.17 (“RTA”). He is appealing a February 25, 2018 review order of the Landlord and Tenant Board (“LTB”) which disposed of multiple applications filed by both parties with respect to the Appellant’s eviction, and a March 29, 2019 refusal to grant review of the order of February 25, 2018.
[2] The Appellant seeks to set aside the eviction order and dismiss the Respondent’s application to end the tenancy. In the alternative, the Appellant asks the court to remit the application to the LTB to be considered by a differently constituted panel.
Background Facts
[3] The Appellant is a 59-year-old man who has been a tenant at 2-217 Riverside Drive in Sudbury since April 1, 2017.
[4] On January 30, 2018, the Respondent served the Appellant with a Notice to Terminate at End of the Term for Landlord’s or Purchaser’s Own Use (N12) pursuant to s. 48 of the RTA to terminate the tenancy because he intended to move into the rental unit. The stated termination date was March 31, 2018. Pursuant to s. 69 of the RTA, which provides that a landlord may apply for an order terminating a tenancy after notice has been given, the LTB heard the Respondent’s application on April 10, 2018, and ordered the Appellant’s eviction effective May 15, 2018. The Appellant had made his own complaints to the LTB of the Respondent’s behaviour and failure to meet maintenance obligations, filing applications on April 6, 2018. His applications were not heard on April 10, 2018.
[5] On May 4, 2018, the Appellant requested a review of the order evicting him.
[6] On June 18, 2018, at the Appellant’s request, the LTB issued further reasons for the eviction order, in which LTB Member Margaret Reynolds wrote that she found the Respondent to be truthful and his rationale for wanting possession of the unit to be credible.
[7] The first review of the LTB eviction order was heard on August 7, 2018 and was held, once again, before LTB Member Reynolds. The Appellant maintained that he was not reasonably able to participate in the initial hearing and that the order contained a serious error. By way of decision issued on August 8, 2018, the review was denied.
[8] On August 23, 2018, the Appellant requested a review of the decision issued August 8, 2018. That review, along with the hearing of the Appellants three applications, was heard on December 18, 2018, again before LTB Member Reynolds.
[9] On February 25, 2019, Member Reynolds issued her decision and reasons arising from the December 18, 2019 hearings. She found that:
a. The Appellant was able to reasonably participate in the hearing because he attended and gave fulsome evidence.
b. The LTB did not err in failing to consider the Appellant’s evidence and submissions.
c. By the time of the December 18 review hearing, she had the Appellant’s full evidence before her and though the Appellant was owed certain remedies, none would cause her to stop the eviction pursuant to s. 83, “due to the need of the Landlord to occupy the Tenant’s unit”.
[10] On March 18, 2019, the Appellant filed an appeal with the Divisional Court. On March 25, 2019, the Appellant requested from the LTB a review of the February 25, 2019 review order.
[11] On March 29, 2019, Vice-Chair Charron denied any further review under r. 26.18 of the LTB’s Rules of Practice (“LTB Rules”), finding that Member Reynolds had responded fully and reasonably to the Appellant’s lengthy submissions, made reasonable determinations based on the evidence she found relevant and had made no error in doing so.
Jurisdiction
[12] This Court has jurisdiction to hear this appeal under s. 210(1) of the RTA, which reads, “[a]ny 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.”
Standard of Review
[13] The standard of review to be applied to LTB decisions is reasonableness. See Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, 132 O.R. (3d) 295.
[14] The Court of Appeal for Ontario in London (City) v. Ayerswood Development Corp, [2002] 167 O.A.C. 120 (ONCA), addressed the standard of review for questions of procedural fairness, at para. 10:
[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 in order to comply with the duty to act fairly.
[15] A similar pronouncement was made by the Supreme Court of Canada in Moreau-Bérubé c. Nouveau-Brunswick, 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74.
Analysis
[16] The Appellant raises the following arguments on this appeal: (1) The LTB failed to properly consider s. 83 of the RTA – specifically, that the Respondent’s notice to terminate the tenancy was initiated as a result of the Appellant having had the unit inspected by the Electrical Safety Authority and insisting on proper maintenance: (2) The LTB erred by considering the affidavit of the Respondent which he says improperly stated that he was a Sudbury resident and failed to an address or unit number; (3) The LTB was in breach of its duty of procedural fairness by allowing for reviews of orders by the same LTB member who made the orders in the first instance; (4) The LTB erred in completing its initial review of the eviction order on August 7, 2018, by failing to consider all of his outstanding applications at the same time; (5) LTB Member Reynolds abused her authority by being biased against him and disregarding previous orders and directions from the Vice-Chair of the LTB; and (6) The Respondent improperly communicated with the LTB during the course of the hearings.
The s. 83 Issue
[17] It is clear from the reasons of LTB Member Reynolds dated February 25, 2019, that s. 83 was specifically considered, as was the electrical inspection alleged by the Appellant and the various maintenance issues raised by him. She found that none of the allegations, even if proven, would cause her to invoke s. 83 as the Respondent had established that he, in good faith, required possession of the rental unit for his own residential occupation. Clearly, she did not consider any breach of the Respondent’s maintenance obligations to be serious; and her express finding that the Respondent had a genuine and good faith intention to occupy the unit negated the possibility of a finding that his application was retaliatory, as required for the application of s. 83(3)(b) or (c). Even if we were to disagree with the LTB on applicability of section 83, these were findings of fact and are not subject to appeal.
The Respondent’s Affidavit
[18] When the Respondent filed the N12 Notice to End the Tenancy he specifically identified the unit in question. Along with this notice, he was required to file an affidavit setting out, under oath, the facts in support of his notice. The affidavit read as follows:
I, Richard Miklos, of the City/Town/Municipality of Sudbury make oath and say as follows:
That I Richard Miklos will be residing in the unit for one year once the unit becomes vacant.
[19] The Appellant complains that Mr. Miklos was not a resident of Sudbury at that time, and that he failed to identify the unit he intended to occupy.
[20] In our view, that Mr. Miklos was or was not a resident of Sudbury when the affidavit was sworn is of no consequence. He works in Sudbury, owns property in Sudbury and although he resides in Alban outside the municipal boundaries, there was no doubt about the identity of the landlord and who was swearing the affidavit.
[21] Similarly, that the affidavit contained no specific reference to the unit in question could not have been misleading to anyone. It accompanied a N12 Notice to End the Tenancy that specifically referenced the unit in question and named the Appellant as the tenant. There could be no mistake as to which unit the affidavit was referring to. To the extent the affidavit was defective the Appellant suffered no prejudice.
[22] While the Appellant relies on Rule 1.4 of the LBT Rules, that rule was part of a previous version of the LBT Rules and was not in effect in 2018.
Review by the Same LTB Member
[23] The Appellant argues that assigning the same LTB Member to review her own order is a breach of procedural fairness.
[24] It is true that a previous version of the rules of the tribunal had contained a prohibition on the member reviewing her own decision but this had been repealed and replaced with a rule specifically permitting such a review. When this matter proceeded before the LTB, Rule 29.13 of the LTB’s Rules provided specifically that any member, “including the member whose order is the subject of the request to review, may be assigned to conduct the review hearing”. The current Rule 26.13 is largely the same.
[25] The LTB receives many thousands of applications each year and is required to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all parties an adequate opportunity to know and address the issues being heard. To that end, s. 25.0.1 of the Statutory Powers Procedure Act gives the LTB the power to determine its own procedures and practices and to establish its rules.
[26] Given the nature of a review, that there is a right of appeal from the LTB (albeit restricted to questions of law) and the LTB’s ability to establish rules to ensure that reviews are handled expeditiously, we see no breach of procedural fairness or natural justice in having an LTB Member review her own decision. We note that a similar conclusion was reached by this court concerning reconsiderations conducted by the Human Rights Tribunal of Ontario in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 and Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604.
Failure to Consider All Outstanding Applications
[27] The Appellant argues that the LTB improperly failed to consider his applications when it rendered its decision on August 8, 2018 and dismissed the review. He is correct. Indeed, this was specifically considered and determined when the subsequent review was conducted on December 18. LTB Member Reynolds made the following findings in her decision dated February 25, 2019:
On April 10, 2018 the Landlord’s L2 application was heard. The Tenant brought forward a T6 application and this was heard on August 10, 2018. Due to time constraints the Tenant’s remaining T2 and T3 applications were not heard. The Tenant has properly sought a review on the basis that his rights under s. 83 could not have been properly considered because all of his position was not considered at the hearing on April 10, 2018.
By December 18, 2018, I had heard the Tenant’s full evidence with respect to his T2, T3 and T6 applications. Having now done so, I have turned my mind back to whether relief from eviction pursuant to s. 83 ought now to be granted.
[28] The error of failing to consider all of the Appellant’s applications on August 7, 2018, was cured by their consideration on December 18, 2018. The decision of the LTB Member that none of those applications would cause her to invoke s. 83 does not raise a question of law, and in any event was a reasonable decision, available on the facts and law before her.
Abuse of Authority
[29] The Appellant argues that Member Reynolds abused her authority by proceeding without regard to the previous orders and directions from the Vice-Chair of the LTB. In particular, the Vice-Chair noted that the review should be heard by “anyone but the northern members” and should be scheduled for hearing “with out of town member”.
[30] Member Reynolds is an LTB member from North Bay and would be considered a northern member.
[31] The Vice-Chair made no order or direction prohibiting Member Reynolds form hearing the review. The record does not disclose why the Vice-Chair identified that someone other than a northern member should hear the review, what if any circumstances arose that may have changed that view, or what led to the eventual appointment of Member Reynolds to hear the review. We are not prepared to second guess that appointment and defer to the right of the LTB to control its own procedure.
[32] The Appellant also alleges bias on the part of Member Reynolds, based on her comments at paras. 98 and 99 of the February 25, 2019, decision. There is a strong presumption of judicial or quasi-judicial impartiality and the party alleging bias must establish serious grounds to overcome that presumption (Wewaykum Indian Band v. Canada, 2003 SCC 45). The test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and a decision maker’s individual comments, conduct or decisions during a hearing should not be assessed in isolation, but rather their cumulative effect must be assessed to rebut the strong presumption of impartiality (Hazelton Lanes Inc. v. 170790 Ontario Limited, 2014 ONCA 793).
[33] The Appellant did not obtain transcripts of his various appearances before the LTB. Without those transcripts we are without a record that would allow us to properly assess the allegation of bias that has been made. The Appellant acknowledged that without transcripts he would limit his appeal to those matters that could be argued without a transcript. No reasonable apprehension of bias is established on the record before us.
[34] Although the Appellant says he had never laid eyes on the member before this hearing, it is not clear which hearing he is referring to. It seems that in addition to having adjudicated two unrelated matters involving the Appellant where he failed to attend a scheduled hearing and failed to pay costs owing to the LTB, the Appellant was before Member Reynolds on April 10, 2018, August 7, 2018, and December 18, 2018. Without transcripts from each of these appearances we are unable to determine whether her comments concerning his conduct were improper or unwarranted or completely justified.
Improper Communications with the LTB
[35] On June 11, 2018, the Respondent emailed LTB Member Reynolds inquiring about the status of the Request for Review filed by the Appellant on May 4, 2018.
[36] On June 15, 2018, the Respondent attended the LTB office inquiring again about the status of the Request for Review submitted on May 4, 2018, and when it would be determined.
[37] The Appellant perceives something nefarious in these communications. We do not. In our view, these are simply inquiries to indicate his concern with the delay in having the matter determined.
Conclusion
[38] Although the hearings and reviews in this matter before the LTB did not proceed as a model of efficiency, it is clear that the Appellant was given the opportunity to be fully heard, there was no error of law and no breach of natural justice or procedural fairness. It follows that the appeal is dismissed, and the stay of the eviction order is vacated.
[39] To allow the Appellant a reasonable amount of time to find alternate accommodation the requisition to the Sheriff to carry out the eviction shall not be made before November 15, 2019.
[40] If the parties are unable to agree on costs, they may make written submissions to this court, limited to three pages plus attachments each, within 30 days of release of this decision.
R.D. Gordon, J.
I agree _______________________________
Labrosse, J.
I agree _______________________________
MacLeod, J.
Released: October 18, 2019
CITATION: Decosse v. Miklos, 2019 ONSC 6034
DIVISIONAL COURT FILE NO.: DC-2101-19
LANDLORD AND TENANT BOARD FILE NO.: CEL-77283-18
DATE: 2019-10-18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.D., LABROSSE, MacLEOD JJ.
BETWEEN:
Rick Decosse Appellant
– and –
Richard Miklos Respondent
Landlord and Tenant Board
DECISION ON APPEAL
The Court
Released: October 18, 2019