Court File and Parties

COURT FILE NO.: 78710 DATE: 2006-10-10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, CHAPNIK, DONOHUE JJ.

B E T W E E N:

AMANDA L. DAVIDSON and ERIKA H. ROCHOW Applicants (Respondents in Appeal)

• and -

NAVEEN BAGLA Respondent (Appellant in Appeal)

Counsel: Paul Dusome, for the Applicants (Respondents in Appeal) Yan David Payne, for the Respondent (Appellant in Appeal)

HEARD at Newmarket: September 12, 2006

Reasons for Judgment

BY THE COURT

[1] This is an appeal of a decision of the Ontario Rental Housing Tribunal (the Tribunal) dated November 10, 2004 wherein the appellant landlord was found to have acted outside the provisions of the Tenant Protection Act, 1997 (the TPA) and the Ontario Human Rights Code. The appellant seeks an order setting aside that decision and a further Tribunal decision made December 14, 2004 denying a Request to Review brought by the appellant.

[2] While the stated grounds of appeal are numerous, in summary, the appellant alleges that he was denied procedural fairness and the opportunity to present his case fully and fairly. In brief, the Tribunal waived the statutory 10-day notice requirement, and then refused to grant an adjournment so he could prepare for and present his case fully. He requests an order dismissing the applicant’s application or sending the matter back to the Tribunal for a new hearing and costs.

[3] The respondent submits that there was no error of law, that the appellant experienced no prejudice as a result of the denial of an adjournment, and that the matter was discretionary and thus, the appeal should be dismissed with costs.

THE COURT’S JURISDICTION AND STANDARD OF REVIEW

[4] Pursuant to section 196(1) of the TPA, a person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days of the date of the order, but only on a question of law. Section 196 also provides the following:

(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.

(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.

[5] It is well settled law that on a pure question of law, particularly one that does not engage any special expertise of the Tribunal, the standard of review is correctness. Dollimore v. Azuria Group Inc., [2001] O.J. No. 4408 (Div. Ct.).

[6] However, in determining whether the appellant received a fair hearing, there is no need to apply any particular standard of review. Rather, the Tribunal is required to comply with the requirements of natural justice appropriate to the nature of the hearing, and the failure to do so will result in the Tribunal’s decision being quashed. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 18-28. See also Manpel v. Greenwin Property Management [2005] O.J. No. 3079 (Div. Ct.).

[7] The Court of Appeal in London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 enunciated the role of an appeal court in such circumstances, at para. 10:

When considering an allegation of denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances to comply with the duty to act fairly.

BACKGROUND

[8] The appellant, Naveen Bagla, is the landlord in the premises municipally known as 154 Dunsmore Lane, Barrie, Ontario, which is a three-bedroom house with individual rental units. A rental unit comprises one bedroom and the use of the common areas, for rent payable in the sum of $400.00 per month.

[9] The respondents, Amanda Davidson and Erika Rochow each occupied a unit on the second floor of the premises, commencing on February 1, 2004 and May 1, 2004, respectively.

[10] It was not disputed that, on or about August 2004, the landlord attempted to enter into new tenancy agreements with the respondents, and the proposed agreements were not in accordance with the TPA.

[11] On August 24, 2004, the landlord moved his wife and child into the basement of the rental premises. This led to an altercation in which Ms. Davidson played loud music and according to the appellant, threatened his wife and young son. As a result, the police were called and, in the end, they escorted the respondents from the premises, basically locking them out. It appeared from the evidence that the landlord told the police that he required the premises for his personal use. As well, the tenant, Ms. Davidson, who says she suffers from a mental illness called borderline personality disorder, “cut herself” that evening and the police drove her to the hospital. There was also an issue at the hearing about the last month’s rent to be given to the tenants.

[12] The aforementioned altercation involving the police occurred on August 27, 2004. On September 7, 2004, the respondent tenants filed an application with the Tribunal, claiming that the landlord harassed, obstructed, coerced, threatened or interfered with them. They sought an order for compensation and to obtain their belongings. On September 13, 2004, the landlord received notice of the tenants’ application and of a hearing scheduled to take place two days later on September 15, 2004. The appellant’s request for an adjournment on September 15, 2004 was denied. The hearing took place, the Tribunal Member made several findings of fact, and the tenants’ application was allowed on November 10, 2004.

[13] This appeal is rooted in the refusal of the Tribunal to grant the adjournment. The appellant claims that as a result, he was denied fundamental justice or more specifically procedural fairness.

THE DECISION OF THE TRIBUNAL

[14] After hearing evidence from the tenants and the landlord, the Tribunal made several findings of fact, including the following:

10. I find that the landlord harassed, coerced, threatened and interfered with the tenants. I find the landlord had the local police remove both the tenants because he felt threatened by Amanda Davidson. No charges were laid and I find the danger to the landlord’s family is being used as an excuse for his unlawful actions.

11. The landlord had no reason to remove Erika Rochow other than the fact he felt the tenants were friends.

12. The tenant Amanda Davidson has a disability. The Ontario Human Rights Code requires all landlords to accommodate the needs of the disabled to the point of hardship for themselves. I find this landlord made no efforts to accommodate the needs of Ms. Davidson.

[15] The Tribunal made orders against the landlord for the payment of administrative costs and various compensation to the tenants, including their last month’s rent deposits plus interest. It also made the following order:

1. The landlord must refrain from acting outside the provisions of the Tenant Protection Act, 1997, and also refrain from asking tenants to consider that the Act does not apply to their tenancies.

THE DECISION ON REQUEST TO REVIEW

[16] In dismissing the landlord’s request to review the decision, another Tribunal Member found that no serious error had occurred in the order or the proceedings.

[17] Regarding the matter of the adjournment, the Tribunal noted that s. 171 of the TPA requires a balancing of the rights of the parties to ensure that matters are resolved quickly while not sacrificing their right to a fair hearing, and that Tribunal Members have the discretion to consider an adjournment in light of the circumstances of any case.

[18] In this case, due to the tenants’ allegation of an illegal lockout, the application was viewed as an emergency situation and thus, the discretion was exercised reasonably. Moreover, the Tribunal Member at the hearing had the opportunity to hear and assess the credibility of the witnesses and there was nothing in the order to suggest the member’s findings were “unreasonable or capricious or that they cannot be sustained on the evidence.”

THE RELEVANT LEGISLATION

[19] The relevant sections of the TPA are as follows:

s. 41 A landlord shall not recover possession of a rental unit subject to a tenancy unless,

(a) the tenant has vacated or abandoned the unit; or

(b) an order of the Tribunal evicting the tenant has authorized the possession.

s.171. The Tribunal shall 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 be heard on the matter.

s. 176(2) The Tribunal may extend or shorten the time requirements with respect to any matter in its proceedings, other than the prescribed time requirements, in accordance with the Rules.

ANALYSIS

[20] In our view, the Tribunal did not afford the appellant an adequate opportunity “to know the issues and be heard on the matter,” based on the following:

1. This was not a typical landlord/tenant dispute where the issue is often non-payment of rent. In this case, the principal issue before the Tribunal was whether the landlord had harassed, coerced, threatened or interfered with the tenants, and whether in doing so he illegally locked them out of the premises.

At the outset of the hearing and throughout, the landlord requested an adjournment, insisting that he had direct evidence that bore on the very question before the Tribunal. For example, at page 37 of the transcript, the following exchange took place between the Tribunal Member, Elizabeth Brown, and the landlord, Mr. Bagla, who appeared at the hearing in person without legal assistance:

Ms. Brown: Now, you’re requesting an adjournment?

Mr. Bagla: Yes, we want to… we’re requesting an adjournment.

Ms. Brown: On what grounds?

Mr. Bagla: For the reason that I need more time to gather evidence from the Barrie Police, ……

I just received the Notice of Hearing on September 13^th of this year, 2004, which wouldn’t give me enough time to contact the Barrie Police to receive any occurrence reports and/or memo book notes of the officers that attended at the residence.

Throughout the hearing, Mr. Bagla consistently contended that the Barrie Police would have relevant evidence to give as to what occurred on August 27, 2004 when the tenants were escorted from the premises. It was the landlord’s evidence that he called the police as a result of threats made by Ms. Davidson to his wife and baby boy, that he had no intention of evicting the tenants, and that it was the police who, in their discretion, decided to escort the respondents from the premises.

Indeed, it is not disputed that it was the police who escorted the tenants from the premises. Clearly, their evidence as to the reasons for this and the landlord’s part in it, if any, would be relevant to the Tribunal findings and the issue of whether there was in fact, an illegal eviction by the landlord.

2. After the altercation and ultimate “eviction” of the tenants, they jointly signed an Application regarding Tenant Rights. Although the application was dated August 27, 2004, it was not filed with the Tribunal until September 7, 2004. Given that the matter was dealt with as an emergency situation justifying an abatement of the 10-day notice period under the TPA, it appears unusual that the tenants did not file the application sooner. Moreover, it took over two months from the date of hearing, September 15, 2004, to the rendering of the decision on November 10, 2004.

3. The tenants did not request re-instatement or re-entry into the premises. At para. 9 of the application, the following appears:

4. The landlord must allow me to move back into the rental unit and must not rent the unit to anyone else. Is the unit currently vacant?

Yes No Don’t know

All of question 9 remained blank. Under question 10 “Other”, the tenants requested in their words, “allow me to obtain my belongings or pay me compensation.”

This too militates against a finding of urgency, since it is common ground that both tenants had retrieved their belongings prior to the hearing.

4. The landlord was given 48 hours’ notice of the proceeding; he attended without counsel whereas the tenants were represented by duty counsel; and he was denied an adjournment in circumstances where he insisted that given more time, he could provide relevant evidence regarding the issues in dispute between the parties.

5. Several other occurrences in the course of the Tribunal hearing lead to the conclusion that the landlord was not given a meaningful opportunity to defend the allegations made against him by the tenants. For example, the adjudicator frequently interrogated the landlord and interrupted his cross-examination of witnesses. (See, for example, page 52 of transcript.) She also refused to fully accept into evidence audiotapes the landlord had made of conversations with one or more of the tenants that he said contradicted “everything that’s happened today.” Indeed, the adjudicator made it clear that she would not listen to the tapes (at p. 79):

“I’m not listening. I don’t watch videos for half an hour. You have an obligation to present concise evidence and I don’t listen to people bicker back and forth.”

6. The Tribunal Member made rulings without any evidentiary basis to support them. Her finding that the landlord made “no efforts to accommodate the needs of Ms. Davidson” was entirely inappropriate since there was no human rights complaint before her, and no indication of what efforts would have been appropriate. The only evidence regarding this appears to be Ms. Davidson’s admission that she suffers from borderline personality disorder, and was cutting herself on the day in question. When asked if the landlord was aware of her condition, Ms. Davidson answered at p. 57:

“I don’t know. I don’t believe so. I don’t generally tell people that I have a mental illness, unless it’s required.”

There is no indication as to what the needs of Ms. Davidson might have been or how they could have been accommodated. Since the landlord had no knowledge of the respondent’s condition, it would have been impossible for him to accommodate her needs in any event.

7. The respondents rely on the fact that when the Tribunal Member asked the landlord whether he locked the tenants out of the house, he answered, “Yes, I have.” In answer to the next question as to whether he had an eviction order from the Tribunal, Mr. Bagla answered, “The Barrie police removed them from the premises.” When asked on what grounds, he responded:

On the grounds that I reside there as well. We share a kitchen and a bathroom. On the grounds, I believe, that the notes of the occurrence report and/or the notes, memo book entries of the Barrie police are imperative in this matter, whereas I can attempt to prove that false statements have been made to the Ontario Rental Housing Tribunal and both to the Barrie police.

Not only did the Tribunal Member fail to grant the adjournment, but she acted as a combatant to the landlord, chided him for not knowing the law, and provided him with no assistance whatsoever as an unrepresented party.

CONCLUSION

[21] Due to the above, we have no hesitation in finding that the appellant was denied natural justice and a full and meaningful opportunity to be heard. It appears to us that, in the particular circumstances of this case, fairness was sacrificed on the altar of efficiency. The Tribunal Member erred in not providing the landlord with an adequate opportunity to know the issues and be heard on the matter, as required by s. 171 of the TPA.

[22] In our view, the Tribunal’s decision to abate the normal notice period and then not grant the adjournment was unreasonable and constituted a fundamental error in law and a miscarriage of justice.

[23] Accordingly, the appeal is allowed. The orders of the Tribunal dated November 10, 2004 and December 14, 2004 are set aside. The matter is referred back to the Tribunal to be heard by a different Tribunal Member.

[24] The appellant is entitled to his costs of the appeal, which we fix in the sum of $1,500.00 payable in the cause.

MEEHAN J.

CHAPNIK J.

DONOHUE J.

Released: October 10, 2006

COURT FILE NO.: 78710 DATE: 2006-10-10

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MEEHAN, CHAPNIK, DONOHUE JJ.

B E T W E E N:

AMANDA L. DAVIDSON and ERIKA H. ROCHOW Applicants (Respondents in Appeal)

• and –

NAVEEN BAGLA Respondent (Appellant in Appeal)

REASONS FOR JUDGMENT

BY THE COURT.

Released: October 10, 2006