Citation and Court Information

CITATION: Guillaume v. Barney Rivers Investments Ltd., 2022 ONSC 2304

DIVISIONAL COURT FILE NO.: 21/908

DATE: 2022/04/13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Valerie Guillaume, Appellant

AND: Barney Rivers Investments Ltd. et Al, Respondents

BEFORE: Sachs, Backhouse and Akbarali JJ.

COUNSEL: Valerie Guillaume, on her own behalf Mark Melchers, for the Respondents Valerie Crystal, for the Landlord and Tenant Board

HEARD at Toronto: April 13, 2022

ENDORSEMENT

[1] This is an appeal from the Order of the Landlord and Tenant Board (the "Board") dated November 22, 2021 in which it found that the Appellant was not a tenant of the rental unit and, therefore, the Residential Tenancies Act did not apply.

[2] Our jurisdiction on this appeal is limited to questions of law. The Appellant alleges that the Board erred in law when it failed to allow her to play certain recordings she had filed that she had made of the witness, Barbara O'Connor. According to the Appellant, this resulted in a denial of procedural fairness.

[3] We disagree. The Board's decision refusing to allow the Appellant to play the recordings in question was the result of an evidentiary ruling. These rulings are discretionary and can only be set aside if they display an error in principle or were clearly wrong. They must be considered in light of the Board's right to control its own process and its mandate to conduct hearings on an expeditious basis.

[4] In this case, the witness in question, Barbara O'Connor, was at the hearing and gave oral evidence under oath or affirmation before the Board. She was questioned by both the Appellant and the Landlord's representative. Given this, it was entirely unnecessary for the Board to accept as evidence audio recordings of previous conversations between the Appellant and Ms. O'Connor. If the Appellant believed that Ms. O'Connor's oral evidence before the Board was inconsistent with some previous unsworn statement made in a conversation, this could have been put to Ms. O'Connor by the Appellant and if Ms. O'Connor denied making the statement the Appellant could have renewed her request to play the recordings solely for the purpose of proving that the statement was made. This was never done.

[5] Not permitting an audio recording of a conversation into evidence when both participants to the conversation are present at the hearing for the purpose of giving oral evidence is not a breach of procedural fairness. Nor does it demonstrate any bias or reasonable apprehension of bias.

[6] For these reasons the appeal is dismissed. The Appellant left the zoom hearing while the reasons in this matter were being delivered and before submissions were requested regarding costs. Attempts to contact her proved fruitless. The Landlord requested its partial indemnity costs fixed in the amount of just over $4800.00. We order the Appellant to pay the Landlord its costs of the appeal fixed in the amount of $1000.00, all inclusive. The Appellant's approval to the order arising out of these reasons is hereby dispensed with.

Sachs, J.

Backhouse, J.

Akbarali, J.

Date: April 13, 2022