CITATION: Kim v. Leung, 2025 ONSC 6585

DIVISIONAL COURT FILE NO.: DC-25-00000037-0000

DATE: 20251125

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Appeal Hearing

KELLY KIM

Appellant(s)/Applicant(s) on Motion

AND:

EDMOND LEUNG

Respondent(s)

BEFORE: Justice O’Brien

COUNSEL:

Suchana Sundararajan, Counsel for the Appellant(s)/Applicant(s) on Motion

Ali Amani, Counsel for the Respondent(s)

HEARD: By videoconference November 24, 2025

ENDORSEMENT

Overview

1The appellant tenant, Ms. Kim, appeals three orders of the Landlord and Tenant Board: an order issued October 3, 2024 that terminated her tenancy with the landlord; a January 9, 2025 endorsement denying her an extension of time to request a review of the October 3, order; and a January 10, 2025 order declining a request to review the January 9 endorsement.

2In the October 3, 2024 order, the Board allowed the landlord’s application to terminate the tenancy because he required the rental unit for his own residential occupation for at least a year. The Board found the landlord had satisfied his onus of proving he genuinely intended to move into the unit. The Board member terminated the tenancy but took into account the tenant’s circumstances to postpone the eviction date until October 31, 2024.

3The tenant had 30 days to request a review of the decision. Because she missed that deadline, on January 9, 2025, she requested an extension of time to review the October 3 order. The Board denied the extension of time because the Board member did not find a reasonable explanation for the delay. The Board noted that the tenant had contacted the legal clinic now representing her in mid-October but then lost contact until mid-December when she received a notice to vacate the unit. The Board stated there was insufficient explanation for why the legal clinic waited under October 28, 2024 to request the hearing recording from the Board and, in any event, the legal clinic could have filed a place holder request before the deadline, even if it did not yet have the recording from the Board.

4In the January 10, 2025 order, the Board denied the tenant’s request to review the January 9 endorsement for serious error.

5The tenant submits (1) the Board erred in denying her an extension of time for a review of the eviction order; (2) the Board breached its duty of procedural fairness at the original hearing of the eviction application; and (3) the Board erred by failing to consider its statutory duty to refuse eviction where the application before the Board was started because she was enforcing her rights and failed to consider whether it would be unfair to refuse eviction.

6For the following reasons, the appeal is dismissed.

Jurisdiction

7The jurisdiction of this court on an appeal from the Board is limited to determining questions of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the Act), s. 210.

Did the Board err in denying the extension of time to seek a review?

8I would not interfere with the Board’s decision to deny an extension of time to review the October 3, 2024 Board order. The Board has broad discretion to govern its own processes. Although the tenant submits the Board failed to consider factors such as the prejudice to her in denying an extension of time, the Board member’s endorsement sets out the relevant factors to consider under the Board’s Rules of Procedure, including any prejudice any party may experience. However, the rules state the Board “may” consider the factors. The Board is not required to separately address each factor in every case.

9It is evident from the endorsement the Board considered the most relevant factors to be the length of and reason for the delay. The tenant contacted the legal clinic in mid-October, but did not ensure any steps were taken until after she received the notice to vacate in December. The Board was of the view the legal clinic could have requested the Board recording earlier and could have filed a placeholder request without the recording. Although the tenant stated she contracted COVID-19, there was no medical evidence provided, including no specific evidence of the timing or duration of this, nor explanation for why no steps were taken by the legal clinic from late October to mid-December after the notice to vacate. I do not find any basis to interfere in the Board’s exercise of discretion in this endorsement.

10The landlord does not raise any concern about the timeliness of the appeal from the October 3, 2024 order, although the Notice of Appeal is dated January 10, 2025. I note the court typically permits appeals from the date of a review order, rather than the original Board order, where a request for review is determined. Because no issue has been raised, I will assume without deciding that there is no issue of timeliness here.

Was there a breach of procedural fairness at the hearing?

11The tenant submits the Board breached procedural fairness at the eviction hearing by (1) refusing an adjournment request; (2) unfairly limiting her cross-examination of the landlord; and (3) continuing the hearing when she became physically ill.

12I disagree there was any violation of procedural fairness. The refusal of the adjournment was reasonable and fell appropriately within the Board’s discretion. The tenant had previously requested an adjournment of the first Board hearing date, which was scheduled for April 17, 2024. She asked for time to obtain legal advice and stated English was not her first language. She also stated she need to attend a medical appointment. The adjournment was granted, peremptory to her. The hearing was rescheduled to August 14, 2024, almost four months later.

13At the August 14 date, the tenant requested another adjournment, again stating she needed to obtain legal representation. She stated a lawyer friend was supposed to represent her but could not attend on the day of the hearing. However, she also stated that the lawyer friend did not respond to her “whatsoever.” The Board member made inquiries about what other efforts the tenant had made to obtain legal representation in the almost four months since the last adjournment and was satisfied the tenant had not made sufficient efforts. In addition, the tenant was able to obtain advice from duty counsel on the day of the hearing. There is no unyielding right to legal representation at the Board. Many tenants represent themselves. I do not find a basis to interfere with the Board’s exercise of discretion in denying the adjournment.

14I also do not find a breach of procedural fairness with respect to the tenant’s cross-examination of the landlord. The Board member permitted the tenant extensive opportunity to cross-examine, including by assisting her in rephrasing questions to ensure they were clear. It was not procedurally unfair for the member to limit questioning on the landlord’s ownership of other properties. As the Board member stated, the test for determining whether a landlord intends to occupy a unit as his residence does not consider whether his intended use is reasonable, but only whether it is genuine: Salter v. Beljinac, 2001 40231 (ON SCD). The Board member had heard evidence on why the particular unit was desirable to the landlord and his ownership of the other properties were therefore of limited relevance.

15The situation here is unlike Re Bianchi et al. and Aguanno et al., 1983 1967 (ON SC), which is relied on by the tenant. In that case, the court found a breach of procedural fairness for not permitting cross-examination on the landlord’s prior “misuse” of the act. There, within a short period of time before the notice to terminate, the landlord allegedly terminated another tenant living on the same street purportedly also for the landlord’s own use. This is different than limiting cross-examination on other possible properties for the landlord to move into. As stated in Salter at para. 26, the Board may “properly stop short of entering into any analysis of the landlord’s various options.”

16Section 183 of the Act imposes a duty on the Board to 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.” The tenant is entitled to a high level of procedural fairness because her housing is at issue. However, the Board’s actions in this case promoted expedition while appropriately allowing the tenant to be heard.

17With respect to the allegation that the Board continued the hearing when the tenant became physically ill, it is beyond dispute that the Board has a duty to accommodate when the tenant establishes a disability under the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”). But the tenant did not request an accommodation before the hearing for a medical condition. Nonetheless, because the tenant expressed concerns about how she was feeling, the Board member offered her additional breaks.

18I do not find the Board erred later in the hearing when, after a break, the tenant told the Board she had been physically ill. The Board had the full context before it, which included the tenant’s previous reliance on a medical condition, but no documentation. The Board noted the tenant had been able to manage with the cross-examination of the landlord. Looking to the transcript, the tenant was subsequently able to provide detailed testimony and complete her closing submissions. In making her submission in this court, the tenant has not offered any additional evidence of a medical condition nor details of how such a condition prevented her from participating with additional breaks. She also has not pointed to any evidence, information, or argument she would have provided to the Board if she had been feeling better. There is insufficient evidence to demonstrate failure to accommodate or breach of procedural fairness on this ground.

Did the Board err in its application of s. 83 of the Act?

19Finally, there was no error of law with respect to the Board’s application of s. 83(2) or s. 83(3) of the Act, as alleged. Subsection 83(2) requires the Board to review the circumstances and consider whether it should exercise its powers under s. 83(1) to refuse or postpone an eviction. In this case, the Board member specifically adverted to factors affecting the tenant, stating the tenant was vulnerable and would require more assistance to search for a high-security rental unit. This was because the tenant had stopped working and had a peace bond against her ex-spouse. The Board noted that the tenant had lived in the unit for a substantial period of time. Because of her concern for the tenant, the member extended the period for the tenant to vacate the unit until October 31, 2023. This occurred in a context where the original Board hearing was scheduled for April, then heard in August. The tenant had therefore had some time to search for other housing.

20Subsection 83(3) of the Act requires the Board to refuse to grant an application in certain circumstances. The tenant relies on s. 83(3)(c), which is where the “reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.” The tenant submits the provision applies because the landlord started the application after he tried to illegally increase her rent. The tenant did not raise this provision at the hearing, so no reasons are provided to address it. This is understandable since she was representing herself.

21However, it is implicit in the Board’s reasons that the Board member did not accept the landlord had started the application because of the tenant enforcing her legal rights. The landlord’s evidence, as summarized by the Board, was that he originally contacted the tenant about his intention to move into the unit in April 2023. He stated he wrote to the tenant about increasing her rent in August 2023 because it did not appear she was serious above moving out. The Board implicitly accepted this evidence by finding there was no evidence of bad faith on the landlord’s part. There is therefore no basis to apply s. 83(3).

Disposition

22The appeal is dismissed. In view of the factors affecting the tenant as recognized by the Board and considering the December holidays, I will delay lifting the stay of the Board’s order until January 5, 2026. The Board’s eviction order therefore may be enforced as of that date. As agreed by the parties, the tenant shall pay costs to the landlord in the amount of $4,000 all-inclusive.

O’Brien, J