Court File and Parties
DIVISIONAL COURT FILE NO.: 511/23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Marcus Wright and Giusina D'ella, Appellants
AND: Joanna Lallion, Respondent
BEFORE: Matheson J.
COUNSEL: Ken Wise, for the Appellants Self-represented Respondent Anna Solomon, for the Landlord and Tenant Board
HEARD at Toronto: July 24, 2024, by video-conference.
Endorsement
Overview
1The appellant tenants appeal the decision of Member Brown of the Landlord and Tenant Board (LTB) dated July 18, 2023 (the Decision), granting the respondent landlord’s application to terminate the tenancy unless a payment of more than $35,000 was made by the end of July 2023. The Decision was rendered after a hearing conducted without the tenants present. The appeal also challenges the review order of Member Khalid dated July 31, 2023 (the Review Decision), denying the review request without a hearing.
2This appeal is restricted to questions of law only: s. 210, Residential Tenancies Act, 2006, S.O. 2006, c. 17. This includes issues of procedural fairness. On this appeal, the issue is procedural fairness.
3Appellate standards apply. The standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Law Society of Saskatchewan v. Abrametz, 2002 SCC 29, at paras. 27 and 30.
Background
4By way of background, the tenants began the tenancy in October 2020 with a monthly rent of about $1,900 a month. In May 2022, the landlord began an LTB process to seek to terminate the tenancy for personal use. That process was neither pursued nor abandoned. In September 2022, the landlord gave notice of a rent increase to $5,000 a month. There then was a dispute between them about whether the rent increase was proper and the tenants stopped paying rent.
5The landlord filed an application with the LTB to terminate the tenancy and to collect arrears of rent. The landlord then commenced a second application with the LTB, also seeking the termination of the tenancy. The Tenants therefore received two hearing notices. The first notice, received in April, gave a hearing date of July 4, 2023. The second one, received in June, gave a hearing date of October 18, 2023. The Tenants did not attend the first hearing date. On the later review request, they indicated that this was because of a genuine misunderstanding regarding the two hearing dates – they assumed the LTB hearing had been moved from July to October.
6The Member proceeded on July 4, 2023, with only the Landlord’s evidence. The Member waited before starting but no one was asked to contact the tenants to ask why they were not there. The Member found that the tenants had been served with a valid notice to end the tenancy and ordered the payment of arrears and costs, failing which the tenants had to vacate as of July 29, 2023.
7The Tenants requested a review of the Decision, which may be granted where the requestor was not reasonably able to participate in the hearing. The Tenants submitted that they took the second notice to mean that the July hearing had been changed to October and therefore did not attend the July hearing.
8The LTB denied the tenants’ request based on a preliminary review, without a hearing, even though the Member found that the tenants may have been confused.
9The tenants commenced this appeal and have been making regular payments toward the arrears of rent pending their appeal. The eviction has already been enforced and as of now, the tenants no longer seek to overturn that order. They seek a new hearing regarding the quantum of the arrears of rent.
Analysis
10The Tenants submit that the LTB breached procedural fairness by denying the review request to give them a new hearing on the merits of the rental arrears, at which they could attend and make their case.
11The LTB has the authority to control its own process, and to do so efficiently, provided that it is also fair. The requirements for fairness are context-specific, including due regard for the LTB’s procedural choices. The other relevant factors that inform what procedural fairness will require include the importance of the decision to the individuals affected by it and the legitimate expectations of the persons challenging the Decision. In this case, those persons submit that they expected, and fairness required, a hearing in which they could participate.
12“Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.”: Zaltzman v. Kim, 2022 ONSC 1842 (Div. Ct.), at para. 3, quoting King-Winton v. Doverhold Investments Ltd., 2008 60708 (ON SCDC). In King-Winton, the tenant wrongly believed the hearing was on a different date, even though the tenant had received proper notice. This Court granted the appeal and referred the matter back for a hearing.
13Having regard for the entire context of this particular case, I conclude that it was procedurally unfair to deny the review request at the preliminary stage, without a hearing. The central issue on the review was the denial of the right to be heard at the original hearing. Given the explanation put forward, and the Member’s finding about confusion, the LTB should have proceeded to a review hearing rather than effectively denying the tenants a hearing twice.
Remedy and Disposition
14This gives rise to the question of remedy under s. 210 of the Act. In my view, the efficient course of action here is to send this back for a new hearing on the merits, rather than the potential two-step process that would begin with a review hearing. The only issue will be arrears of rent. The eviction order is no longer at issue.
15This appeal is therefore granted, and the matter is returned to the LTB for a hearing before a different Member on the issue of arrears of rent. The respondent shall pay costs fixed at $4,000, all inclusive, which shall be credited against the arrears of rent.
Matheson J.
Date: July 30, 2024