CITATION: Verbakel v. Prokopiv, 2024 ONSC 5748

OSHAWA DIVISIONAL COURT FILE NO.: DC-23-1406

DATE: 20241017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kelly Verbakel

Appellant

– and –

Volodymyr Prokopiv

Respondent

Douglas J. Spiller, for the Appellant

Spencer Toole, for the Respondent

HEARD: July 11 2024 (by videoconference)

REASONS FOR DECISION

FRASER J.:

I. Nature of the Appeal

1This is an appeal from a decision of the Landlord and Tenant Board (the “Board”) evicting the Appellant from her residence that she shared with others.

2The Appellant argues that the hearing was procedurally unfair such that the Board erred in law. The Appellant asserts that the procedural unfairness arises from the Board’s denial of an adjournment to a date upon which her legal representative (not counsel on appeal) could attend. She argues that the adjournment hearing was procedurally unfair because of a misapprehension by the agent of her legal representative, who withdrew before the adjournment was heard and argued.

3The hearing proceeded without the Appellant having legal representation and the Appellant asserts that this resulted in an unfair hearing.

4The Respondent argues that the hearing was procedurally fair and that the appeal does not raise a question of law, arguing that the appeal represents an attempt by the Appellant to get a second “kick at the can”.

5Below I address this Court’s jurisdiction, the standard of review on an appeal from the Board, assess whether the fresh evidence should be admitted, and consider whether the hearing was procedurally fair.

6For the reasons set out below, I find that the Board denied the Appellant procedural fairness and I remit the matter to the Board to be heard by a different member.

II. Jurisdiction

7Under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c.17, (the “RTA”), an appeal to this Court lies only on a question of law. The Board’s factual findings are not reviewable by this Court and the Court must be mindful that the Board is a specialized tribunal. See Zolynsky v. North Shore Farming Company Limited, 2016 ONSC 2838, at paras. 7 and 8.

8The error of law alleged is a denial of procedural fairness. The parties agree that procedural fairness is a question of law. See Zhou v. Cherishome Living, 2020 ONSC 500.

9On appeal, this Court may affirm, rescind, or replace the decision or order or remit the matter back to the Board with the opinion of the Divisional Court.

III. Standard of Review

10In Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court of Canada clarified the standard of review applicable to questions of procedural fairness in the context of a statutory appeal. At paras. 26 to 30, the Court stated that the question of whether a hearing was procedurally fair is reviewed on a standard of correctness.

IV. Issues on the Appeal

11The issues on this appeal are:

a. Should the fresh evidence be admitted?

b. Was the hearing procedurally fair?

12Before turning to the analysis of these issues, I set out the procedural facts of this matter.

V. Facts

13On May 30, 2023, one day before the hearing, the Appellant retained a paralegal to represent her at the hearing (“the legal representative”). He was not available on the day that the matter was scheduled and after the Respondent declined to agree to adjourn the matter, he filed a Request to Reschedule the hearing.

14The May 30, 2023 Request to Reschedule set out the grounds for the adjournment request and it noted that the Appellant learned of the hearing only in the first week of May, 2023, that she had to work extra shifts to earn money to save the legal fee, and was only able to retain the legal representative on May 30, 2023. It set out the that the Appellant had grounds to bring her own applications before the Board and asserted that it was more efficient for the matters to be heard together. It set out that the legal representative was in two other courts on June 1, 2023 on unrelated matters.

15The legal representative retained an agent (“the agent”) to attend at the hearing which proceeded by videoconference.

16The transcript reveals that the agent informed the Chair, that the legal representative, on behalf the Appellant, was seeking an adjournment as he was not able to attend that day. She advised the Chair that the legal representative was in “two other blocks”. The transcript and the Notice to Reschedule reflect that that was a mistake. Later, that day it would become apparent that the legal representative was not before the Board that day but in court.

17The Chair advised the parties that the hearing would proceed if the legal representative did not enter the “block” by 4:00 p.m. The Agent, being informed that the matter would be heard, advised the Chair that her instructions were at an end and that she would let him know.

18Later that day, the Chair informed the Appellant that he was working through the docket efficiently, that her matter was likely to be called earlier, and that she should get in touch with him. About 15 minutes later, the Appellant advised the Chair that the legal Representative was in court and not able to attend and the Chair suggested that he could call in on a break. The Chair advised that he would address her matter at the end of the day.

19When the matter was eventually called, the Chair noted that he had thought that the legal representative was at other Board hearings such that he would be able to float in and out of the hearing. He indicated that he now understood that that the legal representative was attending in-person hearings.

20At that point, the Chair reviewed the Request to Reschedule. He then determined that he would hear submissions on the request to adjourn from the landlord himself, before making a final decision on the adjournment request. However, as noted above, the agent appearing on behalf of the Appellant’s representative to speak to the issue of the adjournment had already left the hearing.

21The Chair called upon the Respondent to give evidence with respect to the adjournment. The Respondent told the Board that he required the property for his own use because he had an infant and that the child’s grandmother, who was also living with them, had dementia and that her behaviour presented a risk to the child. He also spoke of damage to the unit, responding to the Board’s questions.

22The Chair then turned to the Appellant and learned she had been disconnected from the hearing. He asked the moderator to check the waiting room. When reconnected, the Chair learned from the Appellant that she had been disconnected when the landlord’s representative had begun speaking, meaning that she had not heard the evidence of the Respondent on the adjournment application.

23The Chair then briefly summarized the evidence of the Respondent and proceeded to ask the Appellant questions about the claims the Respondent was making, and the Chair noted that some “have nothing to do with the case here”. He then said:

I’d like to give you my instructions very, very clearly. If you wish for me to grant the adjournment or at least consider it, you need to answer a couple of questions for me to assess the impacts of both the landlord and yourself, okay? You mentioned procedural fairness earlier. It goes both ways. I have to take into consideration the situation of the landlord and the tenant. So, the landlord has claimed damages. Are those damages ongoing?

24The Appellant answered some questions about her housing situation including the damages alleged, and then the Chair asked her about the Notice to Reschedule.

25After a brief recess, the Chair determined that the matter would proceed deciding that in so doing he was placing the safety of an infant ahead of her lack of representation, noticing that she had acquired counsel only on May 30, 2023, just two days before the hearing.

26The hearing proceeded and the Appellant declined to answer questions posed by the Board and indicated that she was not comfortable answering questions without a legal representative.

27Partway through the hearing of evidence, the Board considered a request by the Respondent to amend his application and the Board granted the amendment at the hearing without eliciting submissions from the Appellant.

28The tenant neither provided evidence nor made submissions informing the Board. When invited to do so, she stated that she did not want to make statements that could prejudice her right to have a fair trial and that she felt that she had been denied her right to have her choice of adequate representation.

29By order dated July 19, 2023, the Board, among other things, terminated the tenancy, ordered that the Appellant pay damages in the amount of $8,810.96 for damaged property and held that the Appellant owed the Respondent $17,748.96.

VI. Analysis

Issue A: Should the fresh evidence be admitted?

30The Appellant seeks leave to adduce the affidavit of the Appellant sworn December 19, 2023 as fresh evidence on appeal.

31Whether fresh evidence should be permitted on appeal is assessed using the framework set out in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 as affirmed in Barendregt v. Grebliunas, 2022 SCC 22, at para. 34.

32In Barendregt, at para. 30, the Court noted that Palmer does not apply to evidence going to the validity of the trial process itself.

33The proposed fresh evidence affects the findings of the Board about when the Appellant received notice of the hearing and the prejudice suffered by the parties. It undercuts the Board’s finding that the Appellant received notice of the hearing on March 31, 2023 as the Appellant deposes that she learned of the hearing only in the first week of May, 2023. In my view, the proper approach in this case is the Palmer framework.

34I accept that the new evidence is relevant to the question of whether the adjournment request and the hearing proceeded in a manner that was procedurally fair. It sets out from the Appellant’s perspective the facts upon which she was unable to meaningfully participate including that the Respondent had served an amended L2 form with new evidence on May 25, 2023.

35In the proposed fresh evidence, the Appellant details that she did not always receive her mail between February and April 2023 and that the landlord had insisted that he and his family share her mailbox even though he did not reside at the property. This prompted her to complain to Canada Post and Canada Post ultimately provided her with a mailbox to which only she had the key. It was only after this occurred, that in May 2023, that she found the Notice of Hearing mailed by the Board on March 31, 2023.

36The proposed fresh evidence also sets out that the Appellant has anxiety as the result of being involved in past legal processes and for this reason she was concerned that she should not say anything without counsel.

37Under the Palmer framework, fresh evidence should not generally be admitted if by due diligence it could have been adduced at the hearing. In my view, the nature of the evidence is such that it could not be admitted with due diligence because it relates to when the Appellant received actual notice.

38This evidence is relevant to the issue of notice, it is reasonably capable of belief, and had the potential to have affected the result.

39For this reason, I find that the fresh evidence is admissible under the Palmer framework. However, in the end, I do not rely on it as the transcript of the hearing allows me to decide the issue of procedural fairness without resort to the fresh evidence.

Issue B: Was there a denial of procedural fairness?

40In reviewing whether there was a denial of procedural fairness, I first examine the governing principles relating to procedural fairness and their application in the context of the Board. I then apply those principles to the adjournment request and the hearing.

(i) Governing Principles

41Procedural fairness is variable and is to be determined in the context of each case. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court of Canada set out five factors to be considered in assessing the duty of fairness. They are:

a. the nature of the decision being made and the process followed in making it;

b. the nature of the statutory scheme and the terms of the statute in which the decision maker operates;

c. the importance of the decision to the individual or individuals affected;

d. the legitimate expectations of the person challenging the decision; and

e. the choices of procedure made by the administrative decision maker itself.

42The purpose of the RTA as set out is s. 1 is “to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.” The Board provides the adjudicative function.

43Section 183 of the RTA provides that the Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter. See also the Board’s Rules of Procedure at Rule 1.6(m) and (p).

44The Board functions to adjudicate disputes and to provide the parties with a right to be heard while maintaining its right to control its process. The scheme favours expeditious and informal resolution of disputes through adjudication. The issue to be adjudicated is of the utmost importance to the parties as it concerns housing of the tenant and the landlord. Here, the Appellant faced eviction and the Respondent sought to reclaim use of his property. Appeals from the Board are limited, so the degree of procedural fairness required is enhanced.

(ii) Application

45There are several unique factors that resulted in a denial of procedural fairness to the Appellant.

46First, the Appellant retained a legal representative to represent her at the hearing. He requested that the hearing be rescheduled and sent an agent to speak to the matter. The Board determined, it appears without examining the Notice to Reschedule, that the matter would proceed at 4:00 p.m. The agent clearly thought that the Board determined the adjournment and advised that she would take her leave. The Chair did not tell her that he had not yet considered the request to adjourn. In my view, it was reasonable for her to have interpreted the Board’s comments as denying the adjournment. The Board made no reference at that time to the Request to Reschedule and the grounds for the adjournment request set out therein.

47In addition to this problem, the agent left the impression that the Appellant’s legal representative was in other electronic hearing blocks before the Board when in fact he was engaged in in-person matters before other courts.

48While a decision maker is presumed to have reviewed the record, it appears that the Chair had not. Once the matter resumed, the Board revisited the issue of the adjournment when the Chair acknowledged that a Notice to Reschedule had been filed. However, because the agent had departed, the Appellant was without a legal representative to speak to the adjournment.

49To make matters worse, when the Board heard the Respondent’s evidence on the adjournment request, the Appellant was not present, and it appears was attempting to get back into the hearing. The Appellant was shut out, unintentionally, from the hearing.

50The Appellant therefore missed the Respondent’s evidence on the adjournment. In my view, it was not acceptable for the Board to summarize it. It was also wrong for the Chair to tell the Appellant that some of the Respondent’s evidence had nothing to do with the case. The Board’s reasons do not mention that the Appellant dropped out of the hearing for some of the evidence.

51Having decided that the matter would proceed, the Board did not set out for the self-represented party the procedure and she was not invited to make submissions when the Respondent’s counsel moved to amend his application. In my view, it was incumbent upon the Board to do so.

52In sum, the Appellant had retained counsel. The Board did not appear to have read the Request to Reschedule the hearing when he said that the matter would be heard at 4:00 p.m. Through a misunderstanding, the agent was not present when the adjournment application was heard and departed the hearing. While she was in attendance, she conveyed information that left the impression that the legal representative was before the Board when in fact he was before other courts. The Appellant was then shut out of the hearing and missed portions of the landlord’s evidence. It was not sufficient for the Chair to briefly summarize the evidence as he did. Finally, having determined that the matter was to proceed, the Board failed to outline the process that was to be followed. These actions together resulted in a denial of procedural fairness.

53While the Appellant raises other grounds of appeal, it is unnecessary to deal with them given my finding that there was a denial of procedural fairness.

VII. Conclusion

54As I have found that the hearing was procedurally unfair, I allow the appeal and remit the matter to the Board to be heard by a different member of the Board.

VIII. Costs

55I urge the parties to try to resolve costs. They have both filed costs outlines. The Appellant has been successful and is presumptively entitled to her costs. If costs cannot be resolved, she shall serve and file written submissions on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to three pages, plus a costs outline, and any authorities attached.

56The Respondent shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to three pages, plus a costs outline and any authorities relied on attached.

57There shall be no reply submissions without leave.