CITATION: MacMillan v. Martin, 2025 ONSC 561
OSHAWA DIVISIONAL COURT FILE NO.: DC-24-1564
DATE: 20250127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOUG MACMILLAN Landlord/Appellant
– and –
ANDREW MARTIN Tenant/Respondent
COUNSEL: Tanys Insley, for the Landlord/Appellant Kristy N. Fleming and Stephanie Boomhour, for the Tenant/Respondent
HEARD: January 21, 2025
REASONS FOR DECISION
CHARNEY J.:
[1] This is an appeal by the Landlord from the decisions of the Landlord and Tenant Board (LTB) dated March 4, 2024 and March 25, 2024, in which the LTB found that the Landlord served an “N12 notice of termination” in bad faith and ordered the Landlord to pay the Tenant $8,306 in damages.
Facts
[2] The Tenant rented a unit in the Landlord’s building in Orillia, Ontario.
The Landlord’s Application
[3] In 2019, the Landlord commenced two applications before the LTB to terminate the tenancy and evict the Tenant. One application was to evict the Tenant for non-payment of rent, the other, referred to as an “N12” application, was to evict the Tenant pursuant to s. 48 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, (RTA) because the Landlord, in good faith, required the possession of the premises for the purposes of his own residential occupation.
[4] Both applications were heard on January 20, 2020.
[5] The LTB released its decisions on January 24, 2020. The Landlord was successful on both applications. The LTB determined that the Tenant had not paid rent that was owed and therefore terminated the tenancy subject to the Tenant’s right to void the eviction order by paying the full amount of arrears ($1,242).
[6] The LTB also determined that the Landlord, in good faith, required the possession of the premises for his own residential occupation, and ordered the lease to be terminated and the unit vacated. The LTB found that the Landlord intended to return to Ontario from British Columbia and to move into the unit to be closer to his mother.
[7] On February 11, 2020, the Tenant requested a review of both Orders by the LTB, and sought orders that stayed the eviction orders until the request for review had been determined. Stay orders were granted by the LTB on February 19, 2020.
[8] On February 12, 2021, the LTB issued its review decision denying the Tenant’s request to review the Orders, concluding that neither order contained serious errors of law. The stay orders were lifted by the LTB.
[9] On February 26, 2021, the Tenant filed a Notice of Appeal to the Divisional Court in respect of both Orders. On March 1, 2021, the Registrar of the Divisional Court issued a Certificate of Stay pursuant to Rule 63.01(3) of the Rules of Civil Procedure, which provides that, subject to the order of a judge, the delivery of a notice of appeal from an order made under the RTA stays any provision of the LTB order terminating the tenancy or evicting the tenant until the disposition of the appeal.
[10] On June 3, 2021, the Landlord enlisted the assistance of the Ontario Provincial Police to evict the Tenant from the premises, notwithstanding the statutory stay of the eviction Order.
[11] The Tenant sought the assistance of the Court, and on October 1, 2021, the matter was heard by R.S.J. Edwards, who issued a decision on January 14, 2022: MacMillan v. Martin, 2022 ONSC 357. In that decision, R.S.J. Edwards found that the Landlord was in contempt of court when he evicted the Tenant notwithstanding the stay of the eviction order. As a result, the Landlord agreed to reinstate the Tenant to the premises pending the determination of the appeal in order to purge his contempt. On October 21, 2021, the Tenant moved back into the unit.
[12] R.S.J. Edwards dismissed the Tenant’s appeals from the LTB orders. The Court stayed the enforcement of the eviction order for a period of 30 days to allow the Tenant to find new premises.
[13] The Tenant remained in the unit until February 15, 2022, when, by virtue of the Order of R.S.J. Edwards, he vacated the unit.
The Tenant’s Application
[14] On August 9, 2022, the Tenant filed a “T5 Application” with the LTB stating that: the Landlord served him with an N12 Notice claiming he required the unit for his own use, the Tenant vacated the unit on February 15, 2022, the Landlord did not move into the unit, and as such, the N12 Notice was served in bad faith.
[15] A T5 Application is brought pursuant to s. 57 of the RTA, the relevant portions of which provide:
Former tenant’s application where notice given in bad faith
57 (1) The Board may make an order described in subsection (3) if, on application by a former tenant of a rental unit, the Board determines that,
(a) the landlord gave a notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit;
Time limitation
(2) No application may be made under subsection (1) more than one year after the former tenant vacated the rental unit.
Orders
(3) The orders referred to in subsection (1) are the following:
- An order that the landlord pay a specified sum to the former tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit.
1.1 An order that the landlord pay a specified sum to the former tenant as general compensation in an amount not exceeding the equivalent of 12 months of the last rent charged to the former tenant. An order under this paragraph may be made regardless of whether the former tenant has incurred any actual expenses or whether an order is made under paragraph 2.
1.2 An order that the landlord pay a specified sum to the former tenant for reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur.
An order for an abatement of rent.
An order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.
Any other order that the Board considers appropriate.
Previous determination of good faith
(4) In an application under subsection (1), the Board may find that the landlord gave a notice of termination in bad faith despite a previous finding by the Board to the contrary.
Presumption, notice under s. 48
(5) For the purposes of an application under clause (1) (a), it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the landlord,
(a) advertises the rental unit for rent;
(b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;
(c) advertises the rental unit, or the building that contains the rental unit, for sale;
(d) demolishes the rental unit or the building containing the rental unit; or
(e) takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises.
Same
(6) The period referred to in subsection (5) is the period that,
(a) begins on the day the landlord gives the notice of termination under section 48; and
ends one year after the former tenant vacates the rental unit.
[16] On August 15, 2023, the LTB issued a Notice of Video Hearing, scheduling the T5 hearing for February 5, 2024.
[17] On November 29, 2023, Mr. Portman, the lawyer retained by the Landlord, wrote to the Tenant to request his consent to an adjournment of the February 5, 2024 hearing date “as Mr. Portman is unavailable on the date scheduled due to a previously scheduled court matter”. The Tenant did not consent.
[18] On January 19, 2024, the Appellant filed a Request to Reschedule a Hearing. The request was dated November 29, 2023, and stated that his counsel was just retained and unable to attend on February 5, 2024.
[19] On January 25, 2024, an endorsement denying the rescheduling request was issued by the LTB Member Robert Patchett.
[20] On February 5, 2024, the Appellant did not attend the virtual hearing but sent an agent, Mr. Yaromich, to request an adjournment. Mr. Yaromich advised the LTB Member that the Landlord’s lawyer, Mr. Portman, was not available to attend the hearing that day. He also advised the LTB Member that the Landlord was also not available to attend the hearing because “he’s working and couldn’t get the day off.” Mr. Yaromich made the following submissions in requesting an adjournment:
It was explained by the – or to the clerk, number 1, that his recently retained counsel was unavailable for the hearing date, and number 2, a request had been made for adjournment as soon as counsel had been retained. The landlord was told by the clerk that it was still required for someone to appear today at the hearing on February 5th. That’s why I’m here today. But given the circumstances, an adjournment shouldn’t be an issue. I have been asked - I have asked counsel if the landlord can still connect today, but I have been advised that he’s working and couldn’t get the day off. I’ve also tried to call him with his number that is on record with our office, but I wasn’t able to connect with him. Those are my submissions.
[21] The Member then heard submissions from the Tenant on the adjournment request and retired to deliberate and make a decision. The Tenant opposed the adjournment because the Landlord had notice of the hearing date for six months, and the Tenant’s T5 Application was filed 18 months prior to the scheduled hearing date.
[22] The LTB Member returned at 10:47 a.m. and advised that he would not be granting the adjournment but would stand the matter down for an additional 30 minutes to give the Landlord some additional time to see if he could appear, otherwise the matter would proceed uncontested. He advised that full written reasons for this decision would be provided with his decision on the merits.
[23] In his March 4, 2024 decision, the LTB Member provided reasons for the denial of the adjournment request. He stated:
Upon consideration I elected to deny the adjournment request. An examination of the request to reschedule indicates that while it was filed in January 2024, it was dated November 29, 2023, indicating that the Landlord’s Legal Representative had been aware of this hearing date, and their inability to attend since that date. Furthermore, the right to Legal counsel is not absolute, and adjournments are not automatically granted on this basis. The LTB’s Interpretation Guideline 1: Adjourning and Rescheduling Hearings states as follows:
Section 10 of the SPPA states that a party may be represented by a representative at a hearing. However, the right to representation is not absolute and an adjournment is not automatically granted when it is requested on this ground. The onus is on the party wishing to be represented to make all reasonable efforts to find a lawyer or paralegal able to represent them at the hearing once they become aware of the hearing date.
A short adjournment may be allowed where a representative has been retained but is unavailable on the date set for the hearing, or where the party can demonstrate that they have made reasonable efforts to retain a lawyer or paralegal before the hearing but have not yet been able to do so.
While I find that the Landlord took reasonable steps to obtain representation, the Landlord has been aware since November that his counsel was unable to appear at the hearing date and despite that, and the denied request to reschedule, the Landlord themselves did not attend the hearing, and instead sent an agent who only had instructions to request an adjournment. This essentially amounts to a demand for an adjournment. This is a practice that should be discouraged in Board proceedings.
[24] The LTB Member then proceeded to consider the merits of the Tenant’s T5 Application, and found that the Tenant had proven all of the requirements of s. 57(1)(a), and, in particular, that the Landlord did not occupy the rental unit after the Tenant vacated in February 2022, but that a new Tenant had been occupying the unit since April of 2022. The LTB made the following factual findings, at para. 16:
[T]hat the Landlord entered into a tenancy with a new tenant on approximately April 1 2022, and as a result the presumption of bad faith is established. I am also prepared to draw an inference in the circumstances that the Landlord did not move into the unit within a reasonable period of time after the Tenant vacated. [The] unit was never occupied by the landlord and was re-rented to another Tenant within one year of the date the Tenant vacated. Accordantly, I find that the notice of termination was served in bath faith.
[25] The LTB awarded the Tenant $8,253.84 for increased rent the Tenant incurred for the one-year period from February 15, 2022 to February 14, 2023, but dismissed all other claims for damages.
[26] The Landlord requested a Review of the LTB decision on March 8, 2024, arguing that the LTB erred by denying his request for an adjournment. The Reviewing Member dismissed the request to review the Order, finding that there was no serious error in denying the adjournment request.
[27] After reviewing the LTB’s Interpretation Guidelines relating to adjournment requests, the Member stated:
It is apparent from the final order that the presiding Member correctly exercised their jurisdiction under section 21 of the SPPA by admitting and considering the parties’ evidence and circumstances when denying DY’s adjournment request. The ‘Adjournment Request is Denied’ section of the final order shows that the presiding Member considered the reason for the adjournment request, that the Landlord was aware of their representative’s unavailability since November 2023, that the Landlord had sufficient time to prepare for the hearing, and the prejudice to the Tenant in granting the adjournment request. Although another Board Member may have exercised their discretion differently, the presiding Member’s decision is entitled to deference.
Analysis
Motion to Extend Time to Appeal
[28] The final decision of the Landlord and Tenant Board was dated March 25, 2024. The Notice of Appeal was not filed until June 19, 2024. The Appellant did not bring a motion for an extension of time to file a Notice of Appeal.
[29] Appeals from the LTB must be brought within 30 days of the final decision: RTA, s. 210. This Notice of Appeal was almost 60 days late.
[30] While the Respondent objected to the late filing of the Notice of Appeal from the outset, he did not request a case conference to address this issue until October 10, 2024, after the parties had already agreed to a schedule for the exchange of appeal materials, and after the parties met with the Triage Judge on October 8, 2024 to schedule the appeal. By the time the Respondent raised this concern at a case conference held on November 14, 2024, the appeal had already been scheduled for a long hearing in January 2025.
[31] Accordingly, in a case conference held on November 14, 2024, I ordered that, since the appeal had already been perfected, and appeal material exchanged, the most efficient way to address the issue of the extension of time to file the Notice of Appeal was to have the motion for an extension of time dealt with by the judge who hears the appeal. As luck would have it, that was me.
[32] The Court has the discretion to extend the time to bring an appeal: Rule 2.03 of the Rules of Civil Procedure. The test on an extension motion is:
a. whether the moving party formed an intention to appeal within the relevant time.
b. the length of and explanation for the delay.
c. prejudice to the Respondent.
d. the merits of the appeal.
e. whether the justice of the case requires granting an extension.
[33] On the first issue, the Appellant has provided no evidence to support the contention that he formed an intention to appeal within the 30 day appeal period.
[34] The Appellant relies on an affidavit filed by a law clerk at the law firm representing the Appellant. This affidavit states that the Respondent “was aware of the Appellant’s intention to deliver a Notice of Appeal as far back as November 29, 2023 and again on March 8, 2024”. This would be a good trick, given that both of those dates pre-date the March 25, 2024 decision under appeal.
[35] An examination of the correspondence relied on by the law clerk to support this assertion demonstrates that neither are related to a Notice of Appeal. The November 29, 2023 email is the email, referenced above, requesting the Tenant’s consent to an adjournment of the February 5, 2024 LTB hearing date. The March 8, 2024 email is a letter to the Tenant advising that the Landlord would be seeking a review of the March 5, 2024 Tribunal Order, and is followed by another email the same day attaching the Request to Review an Order which was submitted to the LTB on March 8, 2024.
[36] The law clerk provides no correspondence following the release of the March 25, 2024 LTB decision to suggest that the Landlord had any intention to appeal that decision.
[37] The explanation offered for the nearly 60 day delay is dubious. The law clerk’s affidavit states only that she was advised by the Landlord’s lawyer, Paul Portman, “that he was hospitalized during the time period in which the Notice of Appeal was to be delivered”. There is no indication of the length of Mr. Portman’s hospitalization, the start day or end day, or why other staff at the law firm were unable to file a Notice of Appeal during that 30 day period. This lack of particulars is, no doubt, deliberate, and renders the hearsay explanation provided in the affidavit unhelpful and unpersuasive.
[38] Moreover, counsel for the Respondent points to the decision of the Ontario Superior Court in Aghdasi v. Aghdasi, 2024 ONSC 3472, in which Mr. Portman is listed as appearing as counsel in a trial that sat on April 22, 23 and 24, which were the three days before the Notice of Appeal was due. Mr. Portman was clearly not “hospitalized” on those days.
[39] Finally, there is no explanation why the Notice of Appeal was not served until June 19, 2024, nearly 60 days after the deadline.
[40] Given the Appellant’s total failure to satisfactorily address the first two factors for a motion to extend time, I would not grant an Order extending the time to appeal.
Merits of the Appeal
[41] The final factor I will consider on this question is the merits of the appeal. This is both a factor under the test for an extension of time to appeal, and, in the alternative, my decision on the merits.
[42] An appeal from an order of the LTB lies to this Court only on a question of law: RTA, s. 210(1). This Court does not have jurisdiction to hear an appeal on a question of fact, or of mixed fact and law: Solomon v. Levy, 2015 ONSC 2556, at para. 33; Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.), at para. 26; Zouhar v. Salford Investments Ltd., 2008 27484 (Div. Ct.), at paras. 8-9.
[43] The Supreme Court of Canada clarified the difference between questions of law, fact, and mixed fact and law, in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35: “Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”
[44] The applicable standard of review on questions of law is correctness.
[45] In Lacroix v. Central-McKinlay International Ltd., 2022 ONSC 2807, this Court stated, at para. 10:
The standard of review for questions of procedural fairness is “fairness”, sometimes understood as “correctness”. The court determines whether fairness has been accorded to the appellant based on the events as they unfolded, basic principles of fairness as developed in the jurisprudence, and the tribunal’s own rules and procedures. [Citations omitted]
[46] In hearing the appeal, the court must consider that the Board is a specialized tribunal, and the legislature has deliberately limited appeals from its decisions to, inter alia, ensure a process that is streamlined, timely and cost-efficient: Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658, at para. 16.
[47] In the present case, the Appellant raises two grounds of appeal. First, he argues that he was denied procedural fairness by denying his adjournment request and his right to be heard.
[48] Second, he argues that the Tenant’s T5 Application before the LTB was barred by res judicata and/or issue estoppel. His T5 Application was an attempt to relitigate the LTB’s January 24, 2020 decision that the Landlord, in good faith, required the possession of the premises for the purposes of his own residential occupation. The Tenant had appealed that decision to the Divisional Court, and his appeal on that issue was dismissed by R.S.J. Edwards in his January 14, 2022 decision.
Adjournment Request
[49] Matters of scheduling and deciding whether to grant an adjournment involve an exercise of discretion and are entitled to considerable deference: Kalin v. College of Teachers (2005), 2005 18286 (ON SCDC), at para. 13. An administrative tribunal such as the LTB enjoys a wide latitude in deciding whether to grant or refuse an adjournment of a scheduled hearing: Sterling v. Guillame, 2021 ONSC 1160, at para. 29.
[50] In Solomon v. Levy, 2015 ONSC 2556, the Divisional Court stated, at paras. 39 and 40:
While the granting of adjournments is in the discretion of the Board member hearing an application, the general approach of the Board is informed by section 183 of the Act, which directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter”.
Accordingly, the Board member must take into account the public interest in resolving a case as soon as possible. The key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing.
[51] In the present case, there is no basis to interfere with the LTB’s exercise of discretion in refusing to grant an adjournment. The LTB Chair heard and considered the Landlord’s agent’s submissions for the adjournment request, weighed those submissions against the LTB’s Interpretation Guidelines, and exercised his discretion accordingly. The Landlord is not able to point out any error in principle committed by the Member in exercising his discretion to refuse the adjournment request. The Member exercised his discretion in the interests of justice on the facts that he found based on the evidence before him, after hearing the submissions of both parties, and considering the rules and procedures of the LTB. That is the exact thing that the Legislature wants the LTB to do and excludes this Court from reconsidering. There simply is no arguable issue of law raised on procedural fairness grounds.
Res Judicata
[52] The Landlord’s argument that the Tenant’s T5 Application before the LTB was barred by res judicata and/or issue estoppel can be summarily dismissed. Section 57(4) of the RTA expressly provides that “In an application under subsection (1), the Board may find that the landlord gave a notice of termination in bad faith despite a previous finding by the Board to the contrary”. Indeed, a previous finding by the Board that the Landlord was acting in good faith is a necessary pre-condition to a T5 Application, which can only be brought by a former Tenant who was evicted following a successful N12 Application by the Landlord.
Conclusion
[53] The Landlord’s motion for an extension of time to appeal the March 25, 2024 decision of the LTB is dismissed. In the alternative, had an extension of time been granted, the Landlord’s appeal is dismissed.
[54] Costs are fixed at $5,000, payable by the Landlord to the Tenant within 45 days.
Justice R.E. Charney
Released: January 27, 2025
CITATION: MacMillan v. Martin, 2025 ONSC 561
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DOUG MACMILLAN Appellant
– and –
ANDREW MARTIN Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: January 27, 2025