DIVISIONAL COURT FILE NO.: DC-24-39-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Wilkinson J.
BETWEEN:
MONTEROZZA, Juan, Appellant
– and –
matthews, Christine, BRADBURY, Wayne, MATTHEWS, Roberta, Respondents
S. Gadbois, for the Appellant
C. Matthews (Self-Represent) for all Respondents N. Mulima, for the Landlord and Tenant Board
HEARD at Brampton: 07 October 2024
C. WILKINSON J.
ENDORSEMENT
1The Appellant Landlord, Juan Monterozza, appeals the decision of the Landlord and Tenant Board (“the LTB”) to stay his Application to terminate a tenancy and evict the Respondent Tenants for non-payment of rent as a result of the bankruptcy of one of the three joint Tenants. The LTB reviewed the initial decision in writing and confirmed the stay of the Application as against all three joint Tenants. This appeal addresses whether the LTB correctly stayed the entire proceeding against all three joint Tenants, and whether the LTB breached its duty of procedural fairness.
2The Landlord seeks an order requiring the two non-bankrupt Tenants, Wayne Bradbury and Robyn Matthews, to jointly pay him $35,000, which is the maximum amount he is permitted to claim under s. 207 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the RTA”).
BACKGROUND
3The Landlord and three Tenants entered into a residential lease agreement for the rental premises located at 19 Sinclair Street, Guelph, Ontario for a monthly rental amount of $3,200.00, commencing July 15, 2022, for a fixed term ending July 15, 2023. All three Tenants are named on the lease. The Tenants first failed to pay their rental payment on December 15, 2022, when a stop payment was placed on their cheque to the Landlord.
4A Notice to End your Tenancy for Non-Payment of Rent Form N 4 was served by mail on the Tenants on October 30, 2023, claiming arrears of rent in the amount of $33,600.00 for the rental period from December 15, 2022 to November 14, 2023.
5An Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenants owe under Form LI was filed by the Landlord on November 21, 2023. On November 25, 2023 a hearing was scheduled for April 9, 2024.
6On November 28, 2023, the Landlord filed a Request to Shorten Time with the LTB to expedite the hearing process due to his financial distress, including the following:
The Landlord was struggling to pay the mortgage payments on the rental property since rental payments were no longer being received from the Tenants, and his mortgage was in arrears $8,177.69;
The interest rate on the Landlord’s mortgage payments increased from 6.68% to 7.031%;
The Landlord had not been able to pay the property taxes on his own home and on the rental property, resulting in a warning notice from the City threatening sale of the land at both addresses to address tax arrears totaling $15,307.02; and
The Landlord sold his personal truck to attempt to pay the outstanding mortgage amounts.
7The LTB granted the Landlord’s request for an expedited hearing, and scheduled an earlier hearing date, for February 6, 2024.
8In preparation for the hearing, the Landlord filed a L1/L9 Application - Information Update, dated January 23, 2024, which showed rental arrears totaling $43,200.00 as of January 15, 2024.
9On February 6, 2024, the Respondent Tenant Christine Matthews appeared at the hearing and advised the LTB that she had filed for bankruptcy. The LTB Member adjourned the hearing until February 22, 2024, and ordered that Ms. Matthews file proof of bankruptcy before the next hearing. The Member also ordered that Ms. Matthews was still required to pay the February 15, 2024 rental payment.
10When the hearing continued on February 22, 2024, Christine Matthews had not filed any documentation confirming her bankruptcy, nor had the February 15, 2024 rental payment been made. The LTB therefore issued a verbal decision evicting the joint Respondent Tenants, Christine Matthews, Wayne Bradbury and Roberta Matthews, due to non-payment of rent. An order was also issued for payment of $35,000 owed by the Tenants jointly to the Landlord. The order was silent as to the impact that the order would have on the two non-bankrupt Tenants if/when Christine Matthews filed proof of bankruptcy.
11On March 4, 2024, the Respondent Tenant, Christine Matthews, filed proof of bankruptcy.
12On April 9th, 2024 the LTB issued an Order cancelling the verbal decision for eviction and rental arrears made on February 22, 2024, and stayed the Landlord’s Application. The order stated:
The proceeding commenced under file LTB-L-091493-23 has been stayed as a result of the Tenant’s bankruptcy filing pursuant to the Bankruptcy and Insolvency Act. That application is stayed until the Court otherwise decides or until the Tenant is discharged from bankruptcy.
13The order also confirmed that all arrears of rent that came due on February 15, 2024 would be covered in the bankruptcy of the Tenant Christine Matthews.
14On April 26, 2024 the Landlord filed a request to review the order, stating that the order ought to have reflected the amount of rental arrears owed to the Landlord by the two non-bankrupt Tenants. The Landlord also submitted that the adjudicator was incorrect in stating that the bankruptcy filing by Ms. Matthews created an automatic stay of the proceedings as against the two non-bankrupt Tenants regarding the claim for rental arrears.
15An Amended order was issued on May 7, 2024, which substituted the words “the Tenant” with the words “the Trustee”, but included no other changes. Therefore, the order staying the Application currently remains in place.
16At this time, all three Tenants are still in possession of the rental premises and continue not to make any rental payments.
17Through an administrative error, the Landlord’s request for a Review was not heard by the LTB until December 4, 2024, when it was heard in writing. The Review decision from Patrick Shea, the Vice-Chair of the LTB, found that there had been no serious error made by the LTB Member in the February 6 and 22, 2024 appearances, and that the Amended May 7, 2024 order will remain in place unchanged. The Landlord seeks to set aside the stay with respect to the rental arrears owed to him by the two non-bankrupt Tenants.
JURISDICTION
18The Divisional Court has jurisdiction pursuant to s. 210 of the RTA to hear appeals on questions of law.As of January 25, 2023, as per the memorandum from Associate Chief Justice McWatt, issued pursuant to s. 21(2)(c) of the Courts of Justice Act, R.S.O. 1990, c. C.43, all appeals from the LTB are to be decided by a single judge of the Divisional Court. I therefore have appropriate jurisdiction to hear this matter.
19Under ss. 210 (4) and (5) of the RTA, I may affirm, rescind, or replace the order; remit the matter to the LTB with the Divisional Court’s opinion; or make any other order, including with respect to costs, that I consider proper.
STANDARD OF REVIEW
20This matter is proceeding by way of appeal on a question of law, which requires me to apply a correctness standard, pursuant to the Supreme Court decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262, at para. 8, while at the same time respecting the LTB’s specialized function.
21The standard of review for questions of procedural fairness on appeal is also correctness. However, the level or content of procedural fairness is a flexible and variable standard, that requires a contextual analysis to assess the adequacy of the procedural fairness. As was stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), 1999 2 S.C.R. 817, at para. 27:
… the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, per Gonthier J.
22In applying the correctness standard, the court is free to replace the opinion of the tribunal with its own. However, the starting point remains the reasons provided by the tribunal for its interpretation of the law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para 54.
ISSUES RAISED BY THE APPELLANT LANDLORD
23The Appellant Landlord raises the following issues:
Did the LTB make an error of law by providing the parties at the hearing with incorrect information regarding the interaction between the RTA and the BIA?
Did the LTB breach its duty of procedural fairness by providing inaccurate information to the parties regarding the interaction between the RTA and the BIA?
Did the LTB breach procedural fairness by failing to amend the Landlord’s L1 Application to a L9 Application at the request of the Landlord, or on its own motion?
IS THE APPEAL A QUESTION OF LAW OR PROCEDURAL FAIRNESS?
24This appeal addresses two main issues. The first issue involves the Landlord’s claim that the adjudicator provided inaccurate information to the parties at the hearings, specifically, that Ms. Matthews’ bankruptcy stayed the Landlord’s entire Application, including the claim for rental arrears against the remaining two non-bankrupt Tenants.
25If an adjudicator mis-states the law to the parties at the hearing, it is indeed an error of law, and also creates procedural unfairness. A party may have altered their course of action, or submissions, based upon the inaccurate interpretation of the law given to them by an adjudicator.
26It is appropriate for this appeal to go forward to determine if the adjudicator did make an error in law by stating the law incorrectly to the parties and, by extension, if procedural unfairness occurred as a result.
27It is also appropriate for this appeal to go forward to determine if the adjudicator made a breach of procedural fairness by failing to amend the L1 Application to a L9 Application.
LEGAL PRINCIPLES
28The LTB has exclusive jurisdiction to determine all applications pursuant to the RTA (RTA, s.168(2)), and authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction (RTA, s.174).
29If a Tenant fails to pay rent under a tenancy agreement, the Landlord may serve a notice to terminate the tenancy under s. 59(1) of the RTA and proceed to apply to the LTB for an order evicting the Tenant if the Tenant does not void the notice, as per s. 59(3) of the RTA.
30A second remedy available to the Landlord for non-payment of rent is to apply to the LTB under s. 87 of the RTA for an arrears-only order against a non-bankrupt joint tenant for both pre- and post- bankruptcy rent.
31Rule 15.4 of the LTB Rules of Procedure states:
15.4 The LTB may exercise its discretion to grant a request to amend made at the hearing if satisfied the amendment is appropriate, would not prejudice any party and is consistent with a fair and expeditious proceeding.
32Section 201(1)(f) of the RTA allows the Board to amend the Application on its own motion and on notice to the parties if the Board considers it appropriate to do so, and if amending the application would not be unfair to any party.
33Section 69.3(1) of the Bankruptcy and Insolvency Act (“the BIA”) requires a stay of all proceedings for the recovery of a claim provable in bankruptcy, which generally includes rent or other amounts owed by a Tenant. However, s. 179 of the BIA does not prevent a landlord from recovering rent or other amounts owed by a non-bankrupt joint tenant:
179 An order of discharge does not release a person who at the time of the bankruptcy was a partner or co-trustee with the bankrupt or was jointly bound or had made a joint contract with the bankrupt, or a person who was surety or in the nature of a surety for the bankrupt.
34If a request to review an order is made, the LTB may either dismiss the request or direct that the matter proceed to a review hearing if there is a concern that a serious error was made by the adjudicator: LTB Rules of Procedure, Rule 26.9. Following the re-hearing, the LTB may confirm, vary, suspend or cancel the order, and lift any stay if necessary: LTB Rules of Procedure, Rule 26.17.
35The LTB is entitled to control its own process, and its procedural choices are entitled to deference. In Wei v. Liu, 2022 ONSC 3887, [2022] O.J. No. 3080 (Div. Ct.), at para. 9, this Court stated:
The LTB has exclusive jurisdiction to hear and determine all applications under the Residential Tenancies Act. Tribunals with authority to control their own process are owed considerable deference on procedural decisions. This is because administrative tribunals, including the LTB, have experience and expertise balancing the need to ensure fair participation by all parties with the need to ensure that the issues are dealt with in a timely and efficient way.
POSITION OF THE LANDLORD
36The Landlord takes the position that the adjudicator presiding at the February 6 and February 22, 2024 hearing dates made errors of law by providing inaccurate information regarding the impact of the BIA on the Landlord’s rights under the RTA. The Landlord provides transcripts from the two days of hearings, which contain the following comments made by the adjudicator which the Landlord states were legally incorrect, and failed to recognize that the Landlord’s claims against the non-bankrupt Tenants can continue despite the bankruptcy of the third Tenant:
a) February 6, 2024 – page 10 of the transcript:
BOARD CHAIR: Okay. So, I'm going to explain how a bankruptcy affects the proceedings here, if the tenancy - if there is evidence of a - if there's evidence of a bankruptcy. Then this becomes moot. The whole hearing becomes moot.
b) February 6, 2024 – page 18 of the transcript (Ms. Colley is a paralegal representing the Landlord):
BRITTANY COLLEY: Can I get some clarification. I've tried to pull up the relevant law and I'm not seeing what's applicable.
BOARD CHAIR: Mm-hmm.
BRITTANY COLLEY: Because there's multiple tenants listed on this, if only one tenant is filing for bankruptcy that doesn't really dissolve the other one's, does it?
BOARD CHAIR: Yeah, it does.
BRITTANY COLLEY: It does.
BOARD CHAIR: Yeah.
BRITTANY COLLEY: Okay.
c) February 6, 2024 – page 20 of the transcript:
BOARD CHAIR: So, I'm going to speak here. If, the - if there is a - if - if there is a bankruptcy claim that comes through, then it does cancel out the eviction order. It puts a "stay" - actually what it does officially is, it puts a "stay" on it. So, if the tenant does breach a - if the tenant does breach the conditions of the bankruptcy, or the insolvency, or any of the - or the - I can't remember what they call it - the other thing. But it's where they have to pay monthly. If they do - if they fail on that and then the bankruptcy gets cancelled, then the "stay" gets lifted, and then the order can be – or enforced. Or, you can apply to the board to have it renewed. But that's it, like there's no real - like otherwise, the amount - you might be able to go – you might want - you could try to collect the arrears off of Wayne Bradbury and Robin Matthews, but you wouldn't be able to get an eviction. Because you need to evict all three tenants.
BRITTANY COLLEY: Right, okay.
BOARD CHAIR: So, the option ....
BRITTANY COLLEY: I just wanted clarification, so I appreciate a brief indulgence on that.
BOARD CHAIR: No - no, it's good. Now here's the other issue. I don't have that piece of paper before me, so I'm not satisfied that it exists right now. Even though, it very well could be. I don't have any inkling that it's not going to happen, but having said that, it's not before me right now.
BRITTANY COLLEY: Okay.
BOARD CHAIR: So, that means we can proceed with the hearing right now, go through the arrears. Go through what's owed. I can issue an order - what - how much worth that order will have afterwards is a different story (emphasis mine).
d) February 6, 2024 – page 39 of the transcript:
BOARD CHAIR: Okay, so that's the issue then. It's like, I can issue an order for the full amount that they're asking for, and if your bankruptcy is coming around then it won't matter anyway.
37The Landlord further argues that when the hearing continued on February 22, 2024, the adjudicator continued to inform the parties that the bankruptcy suspended the entire Application against all the Respondents:
e) February 22, 2024 – page 8 of the transcript
BOARD CHAIR: I know that the Bankruptcy and Solvency Act does supercede the board in these matters, and it will cause a "stay" of any order that's issued.
38The Landlord argues that these statements made by the adjudicator to the parties inaccurately state that the entire Application would be stayed by one Tenant’s bankruptcy, when in fact, the Landlord’s claim for rental arrears against the two non-bankrupt Tenants can continue despite the third Tenant’s bankruptcy as per s. 179 of the BIA.
39While the adjudicator does reference the Landlord’s ability to try to collect the rental arrears from the two non-bankrupt Tenants, the Landlord argues that the statement is still misleading. In particular, the Landlord argues that the statement from the adjudicator suggests that the stay of the Application must be lifted to enable the claims for the rental arrears against the two non-bankrupt Tenants to proceed.
40The Landlord also argues that the statements made by the adjudicator collectively informed the Landlord’s representative that Ms. Matthews’ bankruptcy would suspend his claims against the non-bankrupt Tenants.
41The Landlord argues that the law is clear that the non-bankrupts cannot be protected regarding the money they owe to the Landlord for rental arrears, and that the statements by the adjudicator during the hearings created procedural unfairness for the Landlord. The Landlord’s representative, Ms. Colley, raised the issue of the claims for rent arrears continuing against the two non-bankrupt Tenants, and was clearly told by the adjudicator that Ms. Matthews’ bankruptcy dissolves the claims against the other Tenants. The Landlord argues that by making this statement, the adjudicator shut down any further efforts on the part of the Landlord to seek an order for payment of rental arrears from the non-bankrupt Tenants.
42The Landlord also argues that as the LTB had previously granted an expedited hearing as a result of the Landlord’s financial distress, there was already evidence before the adjudicator that the Landlord was desperate for money and seeking an order for payment of rental arrears from the non-bankrupt Tenants. The Landlord submits that his decision to waive all rental arrears owed to him in excess of $35,000 demonstrates his financial desperation to receive money from the Tenants, and that it is clear that the Landlord wanted an order for the $35,000 arrears at the February 22, 2024 attendance.
43The Landlord further argues that the final order from the adjudicator contained several errors of law consistent with the incorrect verbal comments made by the adjudicator to the parties at the hearings:
a) May 7, 2024 Order – paragraph 4:
“A post-hearing submission was made to the Board on March 4, 2024, by the Tenant. The documentation submitted was the bankruptcy documents required to prove the bankruptcy. The documentation was dated for March 4, 2024, which means that rent that came due as of February 15, 2024, would be covered in the bankruptcy. This means that all arrears up to and including the date of the hearing would be addressed in the bankruptcy documentation” (emphasis mine).
b) May 7, 2024 order – paragraph 6:
“The BIA under section 69.3 causes an automatic stay in proceedings when there has been an assignment in bankruptcy. As a result, I find that the application, LTB-L-091493-23 was stayed when the Tenant made an assignment into bankruptcy on March 4, 2024.Therefore, the LTB has no jurisdiction to order termination and payment of arrears for any arrears up to and including March 4, 2024” (emphasis mine).
c) May 7, 2024 order – paragraph 8:
“Any arrears that accrue after March 4, 2024, may be claimed by the Landlord under a separate notice and application to the Board, however any claim for arrears before March 4, 2024, would render the notice invalid” (emphasis mine).
44The Landlord argues that the Tribunal should have made its own motion to amend the L1 Application to convert it to a L9 Application for rental arrears only from the non-bankrupt Tenants. He submits that there was no prejudice to the non-bankrupt Tenants for the adjudicator to do so, as they were already aware of the Landlord’s claim for rental arrears in the original Application.
POSITION OF THE RESPONDENT TENANTS
45Ms. Christine Matthews attended the appeal on behalf of all the Tenants. Mr. Wayne Bradbury and Ms. Roberta Matthews did not appear. None of the Respondent Tenants filed materials in advance of the appeal. Notwithstanding her failure to file materials, Ms. Matthews was given an opportunity to make submissions regarding the appeal.
46Ms. Matthews asked for an adjournment to permit her to retain counsel. In her endorsement from November 25, 2024, Justice Baltman adjourned the appeal in part due to Ms. Matthews’ desire to hire legal counsel. Justice Baltman ordered that today’s attendance is peremptory on all parties.
47It was also brought to Ms. Matthews’ attention that the materials before me demonstrate a pattern of her seeking adjournments of legal proceedings to obtain legal assistance, and then still not having the benefit of legal assistance when the hearing resumes.
48Ms. Matthews’ request for an adjournment of the appeal was denied.
49Ms. Matthews spoke briefly about concerns pertaining to the rental amounts being requested by the Landlord. These comments dealt with factual issues that were before the LTB and are not relevant to the appeal issues being argued before me regarding questions of law and procedural fairness.
POSITION OF THE LANDLORD AND TENANT BOARD
50The LTB takes no position with respect to the merits of the appeal. The LTB submits that as the Application was first filed on November 21, 2023, the Landlord did not have to wait long to have the hearing, as he was given an expedited hearing date of February 6, 2024. However, the LTB acknowledges that an administrative error led to the delayed review and release of a Review Order on December 4, 2024, which was almost ten months after the first hearing date on February 6, 2024, and almost seven months after the final order was made on May 7, 2024. The LTB candidly advised that the LTB overlooked that a review had been requested, so the file was delayed in being assigned to an adjudicator to conduct the review.
51The LTB argues that the real issue on this appeal is whether Ms. Colley, the paralegal representing the Landlord, took action to seek an arrears-only order when appearing before the adjudicator at the hearing. The Landlord was required to bring an amendment to his L1 Application to convert it to a L9 Application that seeks payment of rental arrears only, which could have been requested at the hearing under Rule 15.4 of the LTB Rules of Procedure. The LTB argues this was not done.
52The LTB also takes the position that it was not appropriate for the Tribunal to amend the Application on its own motion as the two non-bankrupt Tenants who would be financially affected by the order were not in attendance.
ANALYSIS
53This is not a situation where there is debate about statutory interpretation. The LTB does not dispute that the Landlord’s L1 Application could have been amended during the hearing to a L9 arrears-only Application if the adjudicator deemed it appropriate to do so.
54In the LTB Review order, Mr. Shea, Vice-Chair of the LTB, confirms that the fact that the LTB has the authority to make an order for rental arrears against non-bankrupt Tenants does not mean that the LTB will automatically make such an order. Mr. Shea concluded that the LTB adjudicator did not make a serious error in failing to make an arrears-only order against the non-bankrupt Tenants, as he found that the Landlord had not specifically asked the adjudicator to make such an order, and in addition, the non-bankrupt Tenants were not in attendance. Mr. Shea concluded that the Landlord can now: a) bring a fresh stand-alone LTB application against the non-bankrupt Tenants for rental arrears, or b) begin a proceeding in Small Claims Court to recover the arrears from the non-bankrupt Tenants.
55The evidence is clear that the Landlord was in financial distress at the time of the hearing in February 2024. In my view, the fact that Ms. Colley asked the adjudicator about the Landlord’s claim continuing against the two non-bankrupt Tenants was an indirect way of asking the adjudicator to make an arrears-only ruling against those Tenants. Had the adjudicator informed Ms. Colley in response to her question that a rental arrears-only order was available against the non-bankrupt Tenants, it is likely that Ms. Colley would have specifically requested the same.
56In addition to the transcript evidence, the content of the adjudicator’s final order dated May 7, 2024 makes it clear that he was unaware that the bankruptcy of Christine Matthews did not stay the Application for rental arrears as against non-bankrupt Tenants, Wayne Bradbury and Roberta Matthews.
57The LTB adjudicator made an error of law when he stated to the parties that the bankruptcy of one Tenant would stay the entire proceeding against all non-bankrupt Tenants. The comments of the LTB adjudicator which contained a misstatement of the law resulted in procedural unfairness to the Landlord.
Would amending the Application at the February 6th and 22nd 2024 hearings have caused prejudice to either party?
58It is a relevant consideration that the two non-bankrupt Tenants did not receive formal notice that a request would be made at the hearing to amend the Application to claim rental arrears only. Under s.201(1)(f) of the RTA, notice may be given before, during, or after a hearing (Nejad v. Preddie, 2016 ONSC 4348, [2016] O.J. No. 3846 (Div. Ct.), at para. 49).
59It is possible that the Tenants may not have attended the hearing because they incorrectly believed they would be protected from having to repay rental arrears because Ms. Matthews filed for bankruptcy. However, both Tenants were aware of the hearing dates, and that the Landlord was seeking payment of rental arrears against them, and still chose not to attend either hearing date.
60Rule 15 of the LTB Rules of Procedure permits amendments to an Application to be made at the hearing if no prejudice to the parties will result. Section 201(1)(f) permits the LTB to amend an Application on its own motion on notice to the parties. Given that the two non-bankrupt Tenants were not in attendance at the hearing, it was open to the adjudicator to adjourn the hearing briefly once again to permit the non-bankrupt Tenants to have specific notice of the intention to convert the L1 Application to a L9 Application.
61I also note that a L9 Application is essentially the same as a L1 Application, without the remedy of eviction, and is therefore a less extreme form of recourse as against the Tenants. The Divisional Court stated in Nejad, at para. 47:
…since an L1 application puts the tenant on notice that the landlord seeks both eviction and arrears, it is hard to imagine how depriving the landlord of the remedy of eviction but allowing the landlord to proceed with an application for arrears could possibly prejudice the tenant.
62In addition, I do not accept that the non-bankrupt Tenants’ decision to avoid the hearing protects them from having orders made in their absence that may affect them. The non-bankrupt Tenants had adequate notice of the hearing and of the relief being sought against them. They had an opportunity to educate themselves about the possibility that an arrears-only order could be granted against them despite the bankruptcy of Ms. Matthews.
63It is also relevant that the non-bankrupt Tenants were certainly aware from the materials filed on this appeal that the Landlord was seeking an arrears-only order against them at this appeal, but they did not file materials, attend, or make submissions with respect to this issue.
64I therefore find that amending the Application at the hearing, or providing a brief adjournment of the hearing to provide specific notice to the Tenants that there was a motion being brought to convert the L1 Application to a L9 Application, would have caused little or no prejudice to the non-bankrupt Tenants.
65The incorrect information regarding the impact of the BIA on the Landlord’s rights under the RTA communicated by the adjudicator to the parties was a serious error of law, and also created procedural unfairness for the Landlord. This Court respects the specialized function of the LTB. However, in the circumstance when an LTB adjudicator provides incorrect legal information to the parties, it is appropriate for this Court to intervene. The Landlord’s appeal of the May 7, 2024 LTB order is granted.
Should the matter be sent back to the LTB for a new hearing?
66The LTB submits that in the event an appeal is allowed, this Application should be remitted back to the LTB for a new hearing. They argue that a hearing could be conducted in a reasonable time frame, and that the LTB should maintain control over its own process.
67Given the extensive delay that the Landlord has already experienced in addressing the outstanding rental payments owed to him, and the evidence that he submitted regarding his financial distress, it is not appropriate or in the interests of justice to refer this matter back to the LTB for a new hearing. The adjudicator initially made the order that the rental arrears were owed based upon the facts before him. I see no beneficial purpose in referring the matter back to the LTB when a factual finding has already been made by the LTB regarding the quantum of rental arrears owed.
CONCLUSION
68The Landlord’s L1 Application is converted to a L9 arrears-only Application. The non-bankrupt Tenants, Wayne Bradbury and Roberta Matthews, are ordered to pay the Landlord rental arrears of $35,000.
COSTS
69The Landlord was fully successful in this appeal. The LTB was clear in its submissions that it was not taking a position on the merits of the appeal, and that it was not seeking costs, and asked that no costs be sought against it. There shall accordingly be no costs ordered as against the LTB.
70The Landlord is entitled to his costs of the appeal from the Respondent Tenants, Wayne Bradbury and Roberta Matthews, who did not participate in the appeal. If the parties are unable to agree upon costs, the Landlord is to prepare submissions no longer than two pages double-spaced by January 17, 2025, not including any Bills of Costs or Offers to Settle. Wayne Bradbury and Roberta Matthews may each prepare a responding submission limited to two pages double-spaced, by January 29, 2025. No reply submissions shall be filed unless requested by me. Costs submissions shall be filed, uploaded to Case Center, and emailed to my judicial assistant at bihara.wijewardena@ontario.ca by the respective deadlines. If have not received any submissions within the time frames set out above, I make no order as to costs.
C.Wilkinson J.
Released: January 9, 2025
CITATION: Monterozza v. Matthews, 2025 ONSC 203
DIVISIONAL COURT FILE NO.: DC-24-39-00
DATE: 2025-01-09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Wilkinson J.
BETWEEN:
MONTEROZZA, Juan
Apellant
– and –
matthews, Christine, BRADBURY, Wayne, MATTHEWS, Roberta
Respondent
ENDORSEMENT
C.WILKINSON J.
Released: January 9, 2025