Court File and Parties

CITATION: Ramsay et al. v. Shafiq, 2025 ONSC 3599

DIVISIONAL COURT FILE NO.: DC-2845/24

DATE: 2025-06-18

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BLAIR RAMSAY and JANE WRIGHT, Appellants (Tenants)

AND: KHURRAM SHAFIQ, Respondent (Landlord)

AND: LANDLORD AND TENANT BOARD

BEFORE: M. Edwards, R.S.J., Ellies and Matheson JJ.

COUNSEL: John Done, for the Appellants (Tenants) Khurram Shafiq, Self-Represented Respondent (Landlord) Anna Solomon, for the Landlord and Tenant Board

HEARD at Ottawa: May 2, 2025, by video

REASONS FOR DECISION

Overview

[1] This appeal deals with two discreet issues relating to the eviction of the Appellants pursuant to orders of the Landlord and Tenant Board (the LTB) dated August 18, 2023, with a related review order dated December 15, 2023. The appeal was dismissed without costs, with reasons to follow. These are those reasons.

[2] The first issue relates to the question of whether or not the Appellants were unable to participate in the eviction hearing because they allegedly did not receive the Notice of Hearing.

[3] The second issue relates to an argument that the Respondent’s application was void because it omitted to mention the Respondent’s prior N12 Notice of Termination such that the LTB had no authority to accept it for filing. This issue has already been the subject matter of an appeal to this court in a case decided by Gordon J. in Miller Estate v. Arguelles, 2025 ONSC 112. Counsel in argument conceded that this court is bound by Miller Estate and rested his argument solely on the basis of the issues raised in his factum so as to preserve his client’s right of appeal to the Court of Appeal.

The Facts

[4] The Respondent has been the Appellants’ landlord since April 1, 2012. On July 1, 2021, the Respondent served the Appellants with a N12 Notice of Termination (the N12 Notice).

[5] On April 10, 2022, the Respondent served the Appellants with another N12 Notice.

[6] On July 27, 2022, the Respondent applied to the LTB for an order to terminate the Appellants’ tenancy and to evict the Appellants with a Form L2 because the Respondent required possession of the rental unit for the purposes of residential occupation.

[7] On March 20, 2023, the eviction hearing was heard before LTB Member den Haan. At that time, only the Respondent attended the eviction hearing. As the Appellants did not attend, the eviction hearing proceeded on an uncontested basis with only the Respondent’s evidence before the LTB. An eviction order was granted, and the tenancy was terminated effective August 29, 2023.

[8] The Appellants filed a request to review the eviction order on September 11, 2023. The request to review was heard on December 6, 2023 by LTB Member Delaney (the Review Hearing).

[9] On December 6, 2023, the Appellants sought a review order on the basis of an argument that they had been unable to participate in the eviction hearing because they did not receive the Notice of Hearing as well as on the basis that the Application itself was invalid. The Appellants’ request to review was denied and the eviction order was confirmed on December 15,2023.

[10] While there were two issues raised before Member Delaney, these reasons will focus exclusively on the first issue, that being whether Member Delaney erred in dismissing the Appellants argument that they could not have reasonably participated in the eviction hearing. The essence of the argument lies in the evidence of the Appellants that they did not receive notice of the eviction hearing and thus never had the opportunity to put their case before the LTB.

[11] The Appellants argue that Member Delaney erred in deciding that the reason for their failure to respond to the Notice of Hearing was because of their failure to regularly check the mail. It is argued that Member Delaney erred in inferring that the Appellants did in fact receive a Notice of Hearing based on an absence of evidence. Specifically, it is argued that Member Delaney’s reasoning was in error because of his conclusions that the Appellants received two items of posted correspondence during an 11-year period and this does not support the conclusion that the Appellants received the Notice of Hearing.

[12] It is also argued that in denying the Appellants their right to be heard, Member Delaney also failed to take into account the Appellants limited literacy and ability to comprehend and thus compromised their ability to reasonably participate in the hearing.

The Court’s Jurisdiction and Standard of Review

[13] Pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the RTA), the Divisional Court has jurisdiction to hear an appeal from the LTB solely on questions of law. As this is a statutory appeal, the standard of review on questions of law and procedural fairness is correctness. See Housen v. Nikolaisen, 2002 SCC 33.

The Statutory Framework As It Relates To Notices Of Hearing And Implications Of Non-Attendance

[14] There is no dispute that parties to a proceeding before the LTB are entitled to receive notice of the hearing. The LTB has a discretion to either serve a notice of hearing on all parties or to order the applicant to serve the notice of hearing on the other parties. See sections 188-189 of the RTA.

[15] Pursuant to s. 191(3) of the RTA where the LTB mails a notice of hearing, it is deemed to have been given on the 5th day after mailing.

[16] Pursuant to s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the SPPA), where a notice of hearing has been given, s. 7 of the SPPA provides that a tribunal may proceed with a hearing in the absence of any party.

[17] Where an order has been made by the LTB that finally determines a party’s rights, the LTB may, pursuant to s. 21.2 of the SPPA and rule 26 of the LTB’s Rules of Procedure (the Rules), review such final order. Section 209(2) of the RTA specifically authorizes the LTB to review a decision if a party was not reasonably able to participate in the proceeding.

[18] In this case, it is argued that the Appellants were not reasonably able to participate in the eviction hearing because they never received notice of that hearing.

[19] In Zarei v. Afsharian, 2023 ONSC 5317, Corbett J., at para 3, succinctly dealt with a similar issue as follows:

The primary issue raised by the appellants is a question of procedural fairness – they say that they did not receive notice and thus did not have an opportunity to participate in the hearing. A question of procedural fairness is reviewed in this court on a standard of correctness. However, in this case the issue of procedural fairness raised by the appellants turns solely on a finding of fact by the Board: the Board found that the appellants received notice of the hearing. Given that finding, which is not subject to appeal in this court, no issue of procedural fairness arises, and for this reason the appeal must be dismissed.

[20] As the Board member did in Zarei, in the present case, Member Delaney made factual findings concerning the service/receipt of the Notice of Hearing. The RTA and the LTB Rules presume that once a notice is sent by the LTB it is deemed received 5 days later. Member Delaney did not accept the evidence of the Appellants and in doing so accepted the evidence of the Respondent that he had in fact “hand delivered the N12 Notice to the tenants personally on April 10, 2022 and they were both present at the time.”

[21] The factual findings of LTB Member Delaney as it relates to the issue of service or delivery of the Notice of Hearing are findings of fact and are not subject to appeal. As such, the first issue raised by the Appellants is dismissed.

[22] As it relates to the second issue, that being whether the LTB erred in law by incorrectly issuing an eviction order when it had no jurisdiction to do so, as previously noted, this issue has already been determined by an earlier decision of this court in Miller Estate.

[23] Counsel for the Appellants quite properly conceded that this court was bound by Miller Estate and, as such, agreed (without conceding the issue, thus preserving his rights of appeal) that this court did not have to proceed further with this issue. As such, the Appellants not being successful on an either issue, this court dismissed the appeal. As no costs were sought, no costs were awarded. The court ordered that the eviction not be enforced for 30 days.

M. Edwards, R.S.J.

I agree ________________________________ Ellies J.

I agree ________________________________ Matheson J.

Date: June 18, 2025