Court Information and Parties
DIVISIONAL COURT FILE NO.: 250/21
LTB File No.: HOT-08131-20 DATE: 20220922
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Chi Kuan Chao
Dan Rosman, for the Tenant/Respondent
Tenant/Respondent
– and –
Shuning Zhao
Rocco Giordano Scocco, for the Landlord/Appellant
Brian Blumenthal, for the Landlord and Tenant Board
Landlord/Appellant
HEARD at Toronto (by videoconference): September 22, 2021
Oral Reasons for Judgment
d.l. corbett J. (Orally)
Motion to Adduce Fresh Evidence
1The appellant moves at the outset of the appeal to adduce fresh evidence in the form of an affidavit to establish that the building management does not have a record of the key fob being deactivated at the request of the landlord by building management. This evidence is tendered at the outset of this appeal and counsel argues in writing and orally that the Palmer test is met, and the evidence ought to be adduced before this court for the purposes of the appeal. In my view, the proposed fresh evidence fails two branches of the Palmer test and I should not exercise my discretion to admit this fresh evidence into evidence on the appeal.
First Branch of Palmer Test: Due Diligence
2First, the evidence was readily available as of the date of the hearing before the Landlord and Tenant Board (the “Board”) through the exercise of reasonable diligence on the part of the landlord. By that I mean that the fact that the building’s records did not contain a reference to or a record of the landlord requesting that the fob be turned off was something that existed at the time of the events in issue and would have existed in the time period leading up to and at the Board hearing. Not only that but this particular Board hearing took place over two days separated by many weeks and the landlord had not completed the landlord’s evidence when the hearing was resumed on the second day. Indeed, the Board asked the landlord if the landlord had brought any witnesses to be heard on the second day of the hearing and the answer to that question (which took some time during the course of the hearing to get) was “no”. So, if the landlord had been uncertain or had not realized that this might be an important point to investigate to adduce evidence on the first day of the hearing, the landlord certainly would have known that by the end of that day and had an opportunity to get this evidence by the second day of the hearing.
3I do not accept the submission that the landlord can meet the Palmer test because the landlord was self-represented at the hearing and did not have the benefit of counsel until after an adverse decision of the Board.
4All parties attending the Landlord and Tenant Board are expected to become familiar with the process at the Board and the hearing process, to obtain representation if they feel that they are unable to participate in the process without that assistance. In this case, we have the landlord, who owns the unit, and chose to be self-represented rather than to engage a paralegal or lawyer or to obtain advice prior to the hearing, and who then chose to make her own decisions about what evidence to tender at the hearing. This is not a basis to permit the landlord to adduce fresh evidence after the Board’s decision.
5The Landlord and Tenant Board is very much like the Small Claims Court in that it has a great many people who are self-represented or are represented by agents who are inexperienced. The process before the Board will be defeated in large part if a party can avoid its failure to bring all of its evidence to the hearing by simply saying that he/she was self-represented, and did not know any better, and so should have a re-hearing on fresh evidence in this court after receiving adverse decision from the Board. In my view, through the exercise of due diligence, this evidence could have been available at the hearing and that in of itself is a complete answer to the application for fresh evidence.
Second Branch of Palmer Test: Impact on the Result
6Second, if the evidence had been adduced before the tribunal on the issue of why the tenant’s key fob did not work when the tenant arrived at the building in August 2020, it would have been considered along with all the rest of the evidence on this issue before the Board. There was considerable evidence in respect of this issue before the Board. There is a series of threats by the landlord to lock the tenant out. Those threats were in writing and in WeChat exchanges that took place electronically and which were before the Board, and the accuracy of those records was not contested before Board. They are proven by written records that were before the Board and were not contested. Very concrete threats were made to lock the tenant out of the building. The tenant came back to the building after having been out of the country for quite some time and needed to quarantine and found that she had in fact been locked out of the building. So it appeared because her fob did not work. Her evidence was that security personnel told her that landlord had requested that the fob be deactivated. That is hearsay evidence, and we are going to hear more about that during the argument of this appeal.
7The third fact is that the fob in fact did not work. That evidence appears to be uncontested and there does not seem to be any basis to doubt that it is true.
8Fourth, there is no other explanation for why the fob did not work other than somebody intentionally deactivated it and if somebody did that, it is hard to imagine who that someone would have been if it had not been the landlord. That inference becomes ever more irresistible given the landlord’s threats to do precisely what happened.
9There could have been other explanations, such as the battery in fob failing, or some mechanical problem if the fob had fallen into water and it had been damaged, so it did not work anymore. Those explanations can be rejected as possible explanations for what happened because building management was able to reactivate this very fob without any evidence that in order to do so the fob needed to be repaired or the battery to be replaced. So, this is not a case where the proposed evidence would be dispositive of an issue, but rather it would be evidence that would be weighed by the Board in the hearing, together with all of the other evidence, in respect to why the fob did not work and which would have then led Board to come to a conclusion one way or another about whether the tenant had satisfied the Board on a balance of probabilities that the landlord locked her out. It would still have been open to the Board, on all of these facts, including the fresh evidence, to have found that the landlord locked out the tenant. It is not the case that the Board would have been required to accept as correct and accurate the evidence of the documentation maintained by the building about whether the landlord made this request. Of course, the Board could have accepted that evidence and not have been satisfied, but I am not satisfied that this fresh evidence would dispose of the issue of whether the landlord locked out the tenant.
Conclusion
10The proposed fresh evidence was tendered at the very last minute: it was received by the court yesterday, the day before the appeal. In all fairness, admitting it would require the court to adjourn the appeal to give the tenant an opportunity to cross-examine on that evidence, to elicit evidence to the contrary, to bring additional evidence on the fob – effectively, to open up the factual inquiry on this issue further. That would be the only fair way that the court could admit this evidence at this very late stage. Given the timing in which this evidence was presented as potential fresh evidence, given the fact that it is not dispositive of the issue and given that this evidence was readily available at the time of the hearing and could have been obtained by the landlord through the exercise of reasonable diligence, I find that the proposed fresh evidence does not meet the test for fresh evidence on appeal as stated in the Palmer case and I decline to admit it.
___________________________ d.l. corbett J.
Date of Oral Reasons for Judgment: September 22, 2021
Date of Written Release: September 23, 2022
CITATION: Zhao v. Chao, 2022 ONSC 5380
DIVISIONAL COURT FILE NO.: 250/21
LTB File No.: HOT-08131-20 DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Chi Kuan Chao
Tenant/Respondent
– and –
Shuning Zhao
Landlord/Appellant
ORAL REASONS FOR JUDGMENT
d.l. corbett J.
Date of Oral Reasons for Judgment: September 22, 2021
Date of Written Release: September 23, 2022