COURT FILE NO. 574/01

DATE: 20030207

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ARCHIE CAMPBELL, MCNEELY AND ELLEN MACDONALD JJ.

B E T W E E N : )

TORONTO HOUSING COMPANY ) Bill Fader c/o ACRI MACPHERSON ) for the Applicant Applicant ) (Respondent in Appeal) )

• and - )

ABUKAR SABRIE ) Joseph Kary ) for the Respondent Respondent ) (Appellant) ) Heard: September 23, 2002

ARCHIE CAMPBELL J.:

The Appeal

[1] Abukar Sabrie appeals:

against the March 2001 order of the Ontario Rental Housing Tribunal evicting him from his apartment in a Toronto Housing Company confirmed by a denial in April of the his request for a review and

against the tribunal’s later refusal in August to consider whether or not there were grounds to reconsider the request for a review

[2] The grounds of appeal are that:

the tribunal in March erred in law in its original findings against the appellant

the tribunal in April erred in holding that the tenant, hospitalized for psychiatric care at the time of the hearing of his review request, had abandoned his request by failing to appear

the tribunal in August improperly fettered its discretion and declined jurisdiction by refusing to consider whether or not a further review request was appropriate having regard to the tenant’s psychiatric inability to attend the first review

the tribunal in August erred in refusing to give written reasons for its refusal

[3] The appellant and respondent appeared by counsel. The tribunal, although entitled to be heard by counsel or otherwise upon the argument on any issue in the appeal,[^1] did not appear or make submissions as to its jurisdiction.

The Original Eviction

[4] The tribunal on March 14, 2001 evicted Mr. Sabrie on the following grounds:

After receiving submissions and evidence, I have concluded that the Tenant has committed an illegal act in the rental unit by illegally subletting the unit to his brother without the consent of the Landlord. The Tenant has knowingly misrepresented his income and the income of his family members who occupy the unit. Because of these misrepresentations the Tenant no longer meets the qualifications required for occupancy of this type of accommodation.

The Review Decision

[5] Mr. Sabrie on March 21 requested a review on the basis that the tribunal had committed a serious error in its findings, and he also sought a stay of the eviction pending the review, on grounds that:

The tenant is mentally disabled and is susceptible to nervous breakdowns

It would cause the tenant great hardship if he is evicted

The tenant is unemployable

[6] The tribunal on March 21 stayed the eviction pending the hearing of the request to review.

[7] At the hearing of the request to review on April 3 the landlord’s representative told the tribunal that the tenant, as the result of an incident in the unit over the weekend, had been arrested and was still in custody. In fact, unknown to the landlord or the tribunal, the tenant has been admitted to Humber River Regional Hospital on April 1. He remained there under psychiatric care throughout the hearing and was later discharged on April 9 although he was re-admitted later that month for a major mental illness from which he was still recovering in August.

[8] The tribunal, in dismissing the request on April 3, said this:

I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

The tenant did not introduce any evidence or make any submissions in support of his request for a review. He did not attend at the hearing of the request. I find therefore that the Tenant has abandoned his request for review.

The Request for Reconsideration

[9] On August 14, 2001 the tenant through counsel requested reconsideration on the grounds that he was hospitalized at the time of the review request hearing. Counsel noted that the eviction hearing had not been enforced. Although the superintendent had changed the lock, the sheriff had not attended and the tenant’s possessions were still in his apartment.

[10] Counsel submitted a letter from the hospital confirming the tenant’s hospital stay between April 1 and April 9.

[11] On August 17 counsel submitted a letter from the tenant’s psychiatrist dated August 16 confirming that the tenant had suffered from a major mental illness, paranoid schizophrenia, that he was ill since the latter part of March, was still recovering, and had been hospitalized at least three times in April. His judgment in the past few months had been seriously compromised and the psychiatrist hoped that would be taken into consideration in relation to his housing.

[12] On August 20 counsel was informed over the telephone by a tribunal official that the review request would not be re-opened.

[13] On August 21 counsel wrote to the regional manager of the tribunal, Ms. Catherine Doherty thanking her for conveying to him on August 20 the decision of the acting vice-chair of the tribunal, apparently an oral decision not to re-open the matter:

I have to say that I have some difficulty with the reasons given for refusing to re-open the hearing, given that the tenant was physically and medically incapable of attending at or participating in the hearing on the date that it was held. Please provide us with the decision in writing, together with the reasons for it. Your attention to this matter is much appreciated.

[14] Ms. Doherty replied on August 23:

Thank you for your letter of August 21, 2001 in which you requested reasons for the Tribunal not proceeding with a second review of the above mentioned application.

As discussed, I have enclosed a copy of Rule 27.19 of the Ontario Rental Housing Tribunal’s Rules of Practice. I trust the Rule will be of assistance.

The rule is set out below.

The Appeal Proceedings

[15] On August 31, by notice of appeal filed in court September 4, the tenant appealed from the March 14 eviction decision “as affirmed by the decision of Ms. Catherine Skinner and Mr. Murray Graham made on August 20, 2001”.

[16] On December 14, 2001 Cameron J. ordered that the tenant be permitted to reoccupy the premises as a licensee on strict terms relating to the payment of rent and security for costs. On January 10, 2002, Then J. continued the order pending this appeal.

Appellant’s Position

[17] The appellant in his notice of appeal asks that the judgment of the tribunal be set aside, that the original application for eviction be dismissed, and that the tenancy be deemed never to have been terminated.

[18] There is a difference between the appellant’s notice of appeal and his factum. The notice of appeal, as mentioned above, is from the original March 14 eviction “as affirmed by” the decision of August 20 not to re-open.

[19] The appellant’s factum says the appellant:

...appeals from the order of Ms. Catherine Skinner and Mr. Murray Graham of the Ontario Rental Housing Tribunal, made on August 21, 2001, in which they refused to re-open the hearing of this matter.”

[20] The appellant’s factum in addition to the relief originally sought in the notice of appeal seeks the alternative relief

...that the matter be remitted to the Tribunal for a review hearing

[21] Taking as a whole the appellant’s notice of appeal, factum, and argument, it appears that the appeal is

against the refusal to re-open the review hearing,

in the alternative against the original eviction, with a request to extend to time within which to appeal

and that the real remedy sought is an order for a further review request hearing.

[22] The grounds of appeal, noted above, are repeated here for convenience:

the tribunal in March erred in law in its original findings against the appellant

the tribunal in April erred in holding that the tenant, hospitalized for psychiatric care at the time of the hearing of his review request, had abandoned his request by failing to appear

the tribunal in August improperly fettered its discretion and declined jurisdiction by refusing to consider whether or not a further review request was appropriate having regard to the tenant’s psychiatric inability to attend the first review

the tribunal in August erred in refusing to give written reasons for its refusal

The Respondent’s Position

[23] The respondent’s position is that the appeal should be dismissed because:

there are no orders of the tribunal other than the original order of March 14 and the review order of April 3, and

in particular there was no order of Murray Graham [the acting vice-Chair] made on August 20th, 2001

the appellant had 30 days within which to appeal the order of April 3 2001 and did not appeal it until August 31, approximately 5 months later

Statutory Provisions

Tenant Protection Act

Order final, binding

195. Except where this Act provides otherwise, an order of the Tribunal is final, binding and not subject to review except under section 21.2 of the Statutory Powers Procedure Act. 1997, c. 24, s. 195.

Appeal rights

196. (1) Any person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

Tribunal to receive notice

(2) A person appealing an order under this section shall give to the Tribunal any documents relating to the appeal.

Tribunal may be heard by counsel

(3) The Tribunal is entitled to be heard by counsel or otherwise upon the argument on any issue in an appeal.

Powers of Court

(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal and may,

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Tribunal with the opinion of the Divisional Court.

Same

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper. 1997, c. 24, s. 196.

Statutory Powers Procedure Act

Decision

17. (1) A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party

Power to review

21.2 (1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. 1997, c. 23, s. 13 (20).

Time for review

(2) The review shall take place within a reasonable time after the decision or order is made.

Conflict

(3) In the event of a conflict between this section and any other Act, the other Act prevails. 1994, c. 27, s. 56 (36).

Control of process

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1. 1999, c. 12, Sched. B, s. 16 (8).

Rules

25.1 (1) A tribunal may make rules governing the practice and procedure before it.

Application

(2) The rules may be of general or particular application.

Consistency with Acts

(3) The rules shall be consistent with this Act and with the other Acts to which they relate.

Ontario Rental Housing Tribunal Rules of Practice (Tribunal Commentary)

Requests to Review an Order

27.1 A party to an order, any person directly affected by it or any Vice-Chair of the Tribunal may request a review of any order or any decision which finally disposes of an application.

27.2 A request to review an order will not be allowed unless a Member determines that the order may contain a serious error or that a serious error occurred in the proceedings.

Subsequent Requests for Review

27.18 The Tribunal shall accept only one request from a party to review an order or decision, and shall not accept a subsequent request from that same party to review the resulting review order or decision.

This Rule is based on the legal principle that a matter already decided cannot be decided again by a court or tribunal. It also encompasses the concept that a party should raise all grounds for possible serious error in their request.

27.19 The Tribunal may review an order which has previously been reviewed, or may review a review order, if the request is made by another party upon different grounds or is made by a Vice-Chair of the Tribunal.

The request of a party for a review will not prevent a new request from a different party, unless the request is based on grounds already decided through the other review. However, if the request is made late, the requesting party must convince the Tribunal that this further review should be allowed to proceed. The Tribunal reserves the right to initiate a second request for review or review of a review order, on its own motion, in appropriate cases.

Analysis: Denial of Natural Justice

[24] The tribunal at the April 3 hearing concluded that the tenant had abandoned his request for a review. In fact he had not. It was only his psychiatric hospitalization that prevented him from proceeding with his request. The tribunal dismissed the request on a mistake of fact.

[25] Were it not for this mistake the appellant would have had a hearing, which he was denied by reason of the mistake. This constitutes a denial of natural justice.

[26] The only remaining question is how best to remedy this denial of natural justice.

Analysis: Refusal to Re-Open

[27] The tribunal had the power, as an incident of its statutory powers and also under the Statutory Powers Procedure Act[^2] and its rules, to re-open the matter and entertain a further request for review in light of the appellant’s psychiatric inability to participate in the original review.

[28] As Sopinka J. said of the principle of finality in respect of administrative tribunals:

... I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.[^3]

[29] As Gallant J. observed after a careful review of the authorities:

...even in the absence of express statutory authority to grant a rehearing, an administrative body has the authority to embark on a curative rehearing where a procedural defect violates principles of natural justice.[^4]

[30] It was within the tribunal’s power, under its necessarily incidental power and its rules, to grant a remedy for the denial of natural justice. The tribunal, however, refused even to consider whether there was sufficient independent credible evidence of a denial of natural justice to warrant a rehearing. The tribunal did so on the basis of an inflexible policy set out in Rule 27.18 that a further review request would never even be considered.

[31] The policy is understandable and its application in some cases may cause no problem. Finality is important to the landlord, the tenant, and to the public interest in the fair allocation of a scarce public resource. It would be wrong to open the floodgates to repeated reconsideration requests. An inflexible rule of the kind applied here makes sense in terms of administrative efficiency because it spares the resources required to screen groundless and frivolous requests.

[32] But administrative convenience, although important, should not be achieved at the potential cost of real injustice where there is independent credible evidence, as here, of a denial of natural justice.

[33] The tribunal declined even to consider the threshold issue, whether it was appropriate to entertain a further review request in order to cure a denial of natural justice. The tribunal, by its inflexible application of the policy in Rule 27.18 against further reviews, improperly fettered its discretion and declined jurisdiction.

[34] The appellant says the refusal to re-open gives rise to a separate right of appeal. It is not clear, however, whether the application of rule 27.18 constituted an “order” that attracts a right of appeal under s. 196 (1) of the Tenant Protection Act [^5]although it may well be a “decision” that attracts a right to written reasons when requested under s. 17 (1) of the Statutory Powers Procedure Act.

[35] Although there may not be a right of appeal from the tribunal’s refusal, judicial review in the form of mandamus is available as a remedy in cases like this where the tribunal declined even to consider whether or not it should cure the denial of natural justice by way of a further hearing.

[36] It is unclear whether a right of appeal lies from the tribunal’s refusal, and judicial review is not appropriate where there is an alternative remedy available by way of extending time to appeal from the original order of April 3. The better remedy is therefore to extend time to appeal from the original eviction order.

Analysis: Appeal from Original Order

[37] For the reasons given above, the more appropriate remedy for the denial of natural justice in this case is to extend the time within which to appeal the original order. The psychiatric evidence makes it clear that mental illness prevented the appellant, until he instructed counsel in August from any earlier assertion of his legal remedies. Because the landlord never proceeded with the eviction and the tenant is still in the apartment, there is no prejudice to the landlord in extending the time for appeal.

Analysis: Appropriate Order

[38] The only way to put the appellant back in the position he would have enjoyed, but for the denial of natural justice, is to set aside the April 3 order denying Mr. Sabrie’s request for a review and to require a re-hearing of the April 3, 2001 review request.

Conclusion

[39] For these reasons I would make an order of the kind referred to above and invite the parties to exchange and submit written argument in respect of the costs of the appeal and the proceedings before Cameron J. and Then J.

[^1]: Tenant Protection Act s. 196(3), below. [^2]: See s. 21.2(1), above [^3]: Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848 at para 21 – 22, applied by the Ontario Court of Appeal to the decision of a referee under the Employment Standards Act in Grier v. Metro International Trucks Ltd. 1996 11795 (ON SC), 28 O.R. (3d) 67 (McMurtry C.J.O.C., Feldman and MacPherson JJ.) [^4]: Nurani v. Alberta (Environmental Appeal Board), [1997] A.J. No. 1163 at para 48. The authorities analysed include Chandler, above, and Ridge v. Baldwin, [1964] A.C. 40 per Lord Reid: I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid. [^5]: See, generally, Re Macfarlane and Anchor Cap & Closure Corp. of Canada Ltd. (1981), 1981 1960 (ON SC), 33 O.R. (2d) 317; 1981 1960 (ON SC), 124 D.L.R. (3d) 303 (Henry & Robins JJ., Henry J. dissenting)