minicounsel

CITATION: Grewal and Eilers v. Nukkala, 2023 ONSC 5758

COURT FILE NO.: 375/23

DATE: 2023-10-12

ONTARIO

SUPERIOR COURT OF JUSTICE

Divisional Court

BETWEEN:

DAMAN GREWAL AND ROY EILERS

Appellants

– and –

ANN NUKKALA

Respondent

Daman Grewal, in person

Ann Nukkala, in person Eli Fellman for the Landlord and Tenant Board

HEARD: October 10, 2023

REASONS FOR JUDGMENT

schabas j.

Overview

1This is an appeal from an eviction order of the Landlord and Tenant Board (“LTB”) dated May 29, 2023.

2The Landlord, Ann Nukkala, sought the eviction of the Tenants, Daman Grewal and Roy Eliers, from an apartment they had occupied since 2015, on the basis that the Landlord intended to live in the unit for at least one year. Section 48(1) of the Residential Tenancies Act, S.O. 2006, c. 17 (“RTA”) permits a Landlord to terminate a tenancy “if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year.” The LTB accepted the Landlord’s position and ordered the eviction of the Tenants.

3The Tenants have raised a number of grounds of appeal, including the following which were addressed in oral argument:

(a) The LTB erred in law in stating that the burden was on the Tenants to show that the Landlord’s notice was not in good faith;

(b) The LTB’s reasons for accepting the Landlord’s position were inadequate and “prevent meaningful appellate review of the correctness of the decision that an error of law has been committed”;

(c) The hearing before the LTB was conducted in a procedurally unfair manner, in breach of the principles of natural justice, as the Tenant was denied the opportunity to lead evidence contradicting or undermining the Landlord’s assertion that she intended to live in the unit rather than sell it;

(d) The LTB failed to permit evidence of harassment and ill-treatment of the Tenants by the Landlord which had been raised in a separate application to the LTB and would have informed the exercise of discretion by the LTB under s. 83 of the RTA;

(e) The LTB mis-stated and misapprehended evidence; and

(f) The LTB erred in finding that the five-year lease which terminated on March 1, 2020, was not renewed for another five-year term.

Standard of review

4Appeals to this Court of LTB orders are restricted to questions of law alone. This Court does not have the jurisdiction to hear an appeal from an LTB order involving a question fact or of mixed fact and law: RTA, s 210(1).

5The distinction between questions of law, fact, and mixed fact and law was explained in Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748 as follows:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

6Issues of procedural fairness and adequacy of reasons, including a failure to engage in or review significant evidence or a misapprehension of evidence, can also amount to an error of law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 126.

7Questions of law are reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Vavilov, at para. 37.

The LTB erred in law

8Paragraph 31 of the LTB decision states that "…the Tenants here must lead sufficient evidence to establish it is more likely than not the Landlord did not give the Tenants the N12 notice of termination in good faith." This is an incorrect statement of the law. As counsel for the LTB notes in his factum: “It is the Landlord, as the applicant, who bears the burden of establishing on the balance of probabilities that the Landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year in accordance with section 48(1) of the Act.”

9This erroneous statement of the law was also expressed by the Member while hearing the evidence. For example, during the cross-examination of the Landlord, the Chair stated that “the burden of proof is on the tenant to provide evidence that the landlord does not intend to move into the rental unit.” This caused the Tenants’ representative to move on in his examination.

10Counsel for the LTB submits that despite the erroneous statement of the law, the LTB nevertheless applied the correct test in paragraphs 36-38 of the decision. At paragraph 36 the LTB said that “with the evidence before me and on the balance of probabilities I prefer the evidence submitted by the landlord.” I draw no comfort from that language as, earlier in the decision, at para. 33, in describing the civil standard of proof on a balance of probabilities, the LTB stated: “Here, in my view, the Tenant’s evidence has not met the required standard.” This clearly placed the burden on the Tenant and undermines the LTB’s assessment of the evidence on “the balance of probabilities” in paragraph 36.

11Further, in paragraph 37 of the decision, the LTB rejected a suggestion by the Tenant that undermined the Landlord’s assertion that she would live in the unit for one year. In doing so, the LTB failed to appropriately consider the veracity of the Landlord’s position. Additionally, in paragraph 38, the LTB dismissed a submission by the Tenant when it stated that it did not lead to a conclusion that the Landlord did not “genuinely intend to move into the rental unit.” This supports the conclusion that the LTB put the burden on the Tenant to rebut the Landlord’s assertions rather than subjecting the Landlord’s evidence to scrutiny.

Inadequacy of Reasons

12I also agree with the Tenants that the LTB’s reasons addressing the issue of the Landlord’s good faith “prevent meaningful appellate review.” The LTB decision merely says it prefers the Landlord’s evidence and accepts it. Similarly, as I have quoted above, the LTB rejects the Tenant’s evidence saying only that it “has not met the required standard.”

13When a tribunal accepts one side’s evidence and rejects the other side’s evidence, it must give some reason or reasons for doing so. As Ms. Grewal put it in oral argument, she deserved an explanation for this finding.

14Counsel for the LTB submitted that, read as a whole, the decision meets the test for adequate reasons, citing Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, 389 D.L.R. (4th) 711, at paras. 30 – 32, which directs that where reasons are “facially incapable of review” the appeal court is “obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.” However, in this case, the record provides no assistance in finding a basis for the LTB’s preference for the Landlord’s evidence. Indeed, the LTB’s error on the burden of proof, which was apparent in the hearing and affected the presentation of evidence, would in any event make reliance on the record difficult.

15In finding that the reasons of the LTB are inadequate, I also have regard to the context, which involves a high-volume adjudicative body that must adopt an expeditious method of determining cases. However, a challenging workload and a pressing need for efficient adjudication does not excuse an utter lack of reasoning.

Conclusion

16In light of my findings on the first two grounds of appeal, I am satisfied that the appeal should be allowed, and the matter should be remitted back to the LTB for a new hearing before a different Member of the tribunal.

17Although I have not addressed the other grounds raised by the appellant, this does not mean that the other grounds have no merit; indeed, the Ms. Grewal has raised serious concerns about the fairness of the hearing and how it affected her ability to put forward her case. However, as the matter must be remanded for a new hearing, it is not necessary to address those issues here.

18Although self-represented, both parties sought costs as they incurred expenses, particularly the appellant, in preparing materials for this appeal. I order costs to be paid by Ms. Nukkala to Ms. Grewal in the amount of $2,500.

Paul B. Schabas J.

Released: October 12, 2023