SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Sadia Omar Ali, Appellant
AND:
Capreit Limited Partnership, Respondent
BEFORE: Justice S. Nakatsuru
COUNSEL: Satish Mandalagiri, for the Appellant
Kevin Lundy, for the Respondent
HEARD: January 6, 2025, by videoconference
ENDORSEMENT
1Sadia Omar Ali, a single mother of three, has been evicted from her apartment after living there for over seven years. The landlord, Capreit Limited Partnership, based their eviction on a threat Ms. Ali allegedly made to one of their staff in the management office on January 13, 2023, after she became upset about a certain charge that she was told that she had to pay. The property manager testified that she overheard Ms. Ali tell another staff member that “some days (sic) she is going to shoot somebody in the office.”
2No complaint was made to the police. But the landlord sought to terminate Ms. Ali’s tenancy under s. 61(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA) on the ground she committed an illegal act in the residential complex.
3A hearing before the Landlord and Tenant Board (LTB) was conducted on January 9, 2023. Ms. Ali did not attend. Once she received the hearing order of February 5, 2024, Ms. Ali requested a review of it on the basis that she was not reasonably able to participate in the hearing. On May 6, 2024, after a review hearing on this issue, the review order denied her request for a rehearing.
4Ms. Ali now appeals her eviction under s. 210 of the RTA on a question of law.
A. THE STANDARD OF REVIEW
5Appellate standards apply. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review on questions of procedural fairness in the context of a statutory appeal is also correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 27, 30.
B. ANALYSIS
The Challenge to the Hearing Order of February 5, 2024
6There is no merit to the various submissions made by Ms. Ali regarding this order. The findings criticized now by Ms. Ali are factual ones that were open to the member to make. No question of law arises. Any suggestion that the member erred by not subjecting the evidence to the criminal standard of proof of beyond a reasonable doubt is misplaced: R. v. TCHC, 2020 ONSC 251 (Div. Ct.), at para. 42.
Procedural Fairness
7Ms. Ali did not have a chance to challenge a serious allegation that she threatened to shoot someone in the office. A crime that requires proof, even under the civil standard of proof, of not only the actus reus but also the mens rea: R. v. McGraw, 1991 29 (SCC), [1991] 3 S.C.R. 72. Also, her long tenancy was terminated without any opportunity to present evidence or make submissions: see s. 83(1)(a) of the RTA.
8The review hearing that was conducted focused solely on whether Ms. Ali was not reasonably able to participate in the January 9, 2024, hearing. Not on whether Ms. Ali committed a crime. This was due to the fact the interim stay order of April 2, 2024, ordered that the review hearing would only consider this issue.1
9Section 209(2) of the RTA expressly permits the LTB to review orders on the grounds that a requester was not reasonably able to participate in the proceedings.
10The member who conducted the review hearing decided that she was not satisfied that Ms. Ali was not reasonably able to participate in the proceeding. In part, the member found that Ms. Ali had notice of the hearing and chose not to attend. Had this been the sole basis to deny the request for a rehearing, this would have been a factual finding that could not be impeached on appeal.
11However, Ms. Ali testified that she believed that paying the landlord the filing fee would resolve the matter without a hearing. The member did not disbelieve Ms. Ali on this and observed Ms. Ali indeed had a discussion prior to the January 9, 2024, hearing about the filing fee with the landlord’s legal representative. The member merely found her belief to be unreasonable and could not anchor a legitimate request to be heard on the merits. On this alternative basis as well, she found that Ms. Ali had not discharged her onus.
12I am mindful that the LTB has enacted Interpretation Guideline 8 which directs that the LTB will refuse requests for a review where the requestor’s absence was the result of negligence or it finds no reasonable explanation for the failure to attend: Gusain v. Arnold, 2023 ONSC 3765 (Div. Ct) at para. 48. I further recognize that a lack of diligence can constitute a reason not to grant a rehearing to avoid a waste of resources: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) at para. 8.
13That acknowledged, on the member’s alternate finding, Ms. Ali did not have an opportunity to be heard though she desired so. This is unlike the case of Gusain v. Arnold relied upon by the respondent where at para. 53 of the decision, the court relied on the finding the member conducting the review made that the requester landlord had an adequate opportunity to participate in the original proceedings.
14In King-Winton v. Doverhold Investments Ltd., 2008 60708 (ONSC Div. Ct.) though the tenant received proper notice of a hearing, the tenant made a mistake about when the hearing was to be held. A new hearing was ordered. At para. 3, the court said “[b]eing reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.” This holding has been followed in other cases where a tenant is the party adversely affected by an inability to participate in a LTB hearing: Zaltzman v. Kim, 2022 ONSC 1842 (Div. Ct.) at para. 3; Wright v. Lallion, 2024 ONSC 4132 2 at para. 12. Given the inherent vulnerability of residential tenants and the purpose of the RTA (see s. 1), this generous interpretation makes sense.
15In principle, I see little to distinguish a sincere confusion about the resolution of a hearing after speaking with the landlord’s lawyer from a sincere confusion about the date of a hearing. Moreover, Ms. Ali has been diligent in pursuing a rehearing once she was notified of the initial decision: Zaltzman v. Kim, at para. 2.
16For these reasons, the appeal is allowed. The order terminating Ms. Ali’s tenancy is set aside. The matter is referred back to a different decision maker for a rehearing on the merits.
17This is not a case for costs.
Justice S. Nakatsuru
Released: January 7, 2025