Harper v. Sauve, 2022 ONSC 5754

CITATION: Harper v. Sauve, 2022 ONSC 5754

DIVISIONAL COURT FILE NO.: DC-2022-2180

DATE: 2022/10/11

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

C MacLeod RSJ, J. Fregeau & S. O’Brien JJ

BETWEEN:

Sally Harper and Gord Harper

Appellants (Tenants)

– and –

Raymond Sauve

Respondent (Landlord)

Lesli Bisgould, Anna Rosenbluth and Jason Swain, for the Appellants

Adam Lake, for the Respondent

Valerie Crystal, for the Landlord and Tenant Board

HEARD: October 11, 2022

DECISION AND REASONS

C. MacLeod, RSJ (Orally)

1This is an appeal by the tenants from a decision of the Landlord and Tenant Board (“LTB”) and from a refusal by the Board to grant a review or reconsideration of the original decision. The decision under appeal was an order granted in favour of the tenants on December 16, 2021, and the decision refusing a review was issued on March 7, 2022.

2Although the decision was in favour of the tenants insofar as it granted a remedy against the landlord for interfering with quiet enjoyment, the decision did not grant the tenants a sufficient remedy in their view. They seek a more comprehensive order preventing the landlord from interfering with the tenants’ guests and an abatement of rent for the period in which the interference affected them. They had also argued for an administrative fine.

Background

3For purposes of the appeal, the facts may be summarized as follows. The property is located in Powassan, Ontario which is a small community 40 kilometers from North Bay. Both of the tenants suffer from disabilities and Sally Harper in particular requires considerable daily assistance. The tenants had engaged a friend and former tenant, S.K. as a personal support worker. Apparently S.K. had at one time been a tenant in the same residential complex where she had a disagreement with the landlord. She had moved out in June of 2021 and when the landlord found she was coming to the property to visit the tenants, the landlord banned S.K. from the property, issued a trespass notice and called the police.

4The tenants explained to the landlord that S.K. was there at their invitation and was providing a necessary service but the landlord refused to rescind the trespass notice. In addition, the tenants allege that the landlord threatened them with eviction and other consequences if the tenants commenced a proceeding before the LTB.

5The consequence of this action by the landlord was to deprive the tenants of the services of a personal support worker for a period of more than three months. The tenants did bring an application to the LTB and there was a hearing before a Board Member on December 6, 2021.

6In a written decision released on December 16, 2021, the Board Member, found that the landlord was in breach of the tenants’ rights under the Ontario Human Rights Code and made an order that, at the request of the tenants, the landlord must permit S.K. to enter the premises when her services as a personal support worker are necessary. The member declined to order an abatement of rent or to impose an administrative fine.

7The tenants complain that in conducting the hearing, the Board Member did not permit them to present evidence or to cross examine witnesses. The tenants also complain that the Board did not grant remedies available under the Residential Tenancies Act to which they claim to have been entitled. They argue that the member failed to give weight to the threats made against them by the landlord and failed to hear the evidence about how significant the interference was. As a consequence, insufficient consideration was given to the appropriate remedies.

8As to the remedies that were ordered, the tenants contend that the landlord should not be able to police the purposes for which they invite S.K. or anyone else into the rented premises. They seek an order that the landlord cease any such interference and cease any threats or intimidation towards them as tenants. They also seek an opportunity to present their evidence concerning the impact of the landlord’s improper behaviour on them and their ability to enjoy their rental accommodation so that they may argue for an abatement and for an administrative fine.

Position of the Parties

9Counsel for the landlord was present for the appeal but did not file materials and took no position on the merits of the appeal. This is unusual given that the objective of the appeal is to seek additional remedies against the landlord.

10Counsel for the Tribunal was also present and had filed materials. The Tribunal has a statutory right to be heard on these appeals. Counsel for the Tribunal also takes no position on the merits of the appeal but did take time to outline the statutory framework, the need for the Tribunal to control its own procedure and the discretionary nature of the Tribunal’s remedial powers.

Analysis and Decision

11Section 210 of the Residential Tenancies Act provides a right of appeal to this court but only on a question of law. The law is now clear in Canada that on such an appeal, the standard of review is “correctness” as described by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Errors of law can include failures of procedural fairness.

12We are all of the view that in this case the member failed to provide the tenants with a reasonable opportunity to present their evidence or to challenge the facts as put forth by the landlord. In saying this we should not be taken as discouraging reasonable efforts by an adjudicator to narrow the issues or to seek consensus on facts, issues or remedies. The LTB undoubtedly has a mandate to confine the evidence it hears to the issues that are actually in dispute and has a practical imperative to conduct focused and efficient hearings. Nor is there a requirement that tribunal hearings be conducted with the particular and exacting processes that might obtain in a civil trial. Still, it is a fundamental error not to hear from a party that seeks to be heard or to permit that party to challenge the facts put forward by their opponent.

13We do not find that the appellants agreed to this manner of proceeding nor to the remedy imposed. The transcript demonstrates that the representative for the appellants continually insisted that the tenants’ evidence should be heard and that she wished to question the landlord.

14In this case, the failure to hear the evidence of the threats or to challenge the landlord’s evidence as to why a trespass notice was issued to S.K. led the member to adopt the false premise that the landlord could exclude a guest of the tenant and limit the purposes for which that guest could attend at the invitation of the tenant by use of a trespass notice. See Cunningham v. Whitby Christian Non-Profit Housing Corp., (1997), 33 OR (3d) 171 (Gen. Div.) This led to the remedy which in the words of the tenant allowed the landlord to police their guests and to inquire into the details of care provided by a personal support worker. It also led to the member giving inadequate consideration to whether an abatement of rent was appropriate or a fine should be imposed or both.

15We therefore remit the matter back to the LTB (constituted before a different member) to hear the evidence of the tenants in respect of the threats and the impact of the trespass notice upon them and to permit the tenants to question the landlord’s version of events. The LTB shall then reconsider the question of appropriate remedy.

16Ordinarily we would set aside the order appealed from but in this case, it would be inappropriate to do so because it is that order which restricts the landlord from interfering with the use by the tenants of S.K. as a personal support worker. While the Tribunal may ultimately decide on a different or an expanded order, the order prohibiting the landlord from interfering with S.K. while she is attending on the applicant as a personal support worker will continue until the Tribunal has dealt with the matter.

17In accordance with the agreement between the parties, there will be no costs of this Divisional Court hearing.

Regional Senior Justice C. MacLeod

I agree _______________________________

The Hon. Mr. Justice J. S. Fregeau

I agree _______________________________

The Hon. Madam Justice S. O’Brien

Date of Reasons for Judgment: October 11, 2022

Date of Release: October 11, 2022 (Orally)

CITATION: Harper v. Sauve, 2022 ONSC 5754

DIVISIONAL COURT FILE NO.: DC-2022-2180