CITATION: Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083

DIVISIONAL COURT FILE NO.: DC-18-122

DATE: 20190402

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, THORBURN, and BALE JJ.

BETWEEN:

ELLISHA MANIKAM

Tenant

– and –

TORONTO COMMUNITY HOUSING CORPORATION

Respondent

G. Filice, for the Tenant, Ellisha Manikam

K. Douglas, for the Respondent, Toronto Community Housing Corporation

HEARD at Toronto: March 6, 2019

BY THE COURT

REASONS FOR DECISION

OVERVIEW

[1] This is an appeal of an eviction order made by the Landlord and Tenant Board (the “Board”). The Appellant, Ms. Ellisha Manikam (the “Tenant”), appeals the Review Order issued by Board Member Shelby Whittick (“Member Whittick”) dated January 29, 2018. This decision involves a consideration of the duty of fairness required in eviction proceedings when the only evidence being relied upon in support of the findings is hearsay evidence.

[2] Member Whittick found that the Tenant threw a rabbit off of her 15^th^ floor balcony to its death and thereby committed an illegal act in her subsidized rental unit, warranting her eviction pursuant to s. 81 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”).

[3] The Tenant and another witness testified at the Review Hearing. Both denied that the Tenant threw the rabbit off the balcony; both said the rabbit jumped. The only evidence available to support the alleged illegal act was a police officer who read the notes taken by another police officer after the events in question had occurred (the “on-scene officer”). The on-scene officer’s notes contained a signed notebook statement from the Tenant’s then-boyfriend. Neither police officer witnessed the events.

[4] The Tenant’s then-boyfriend was not called as a witness to the Review Hearing, thus depriving her of any opportunity to cross-examine the only witness against her.

[5] On this appeal, the Tenant alleges that the Board’s reliance on hearsay evidence – namely, the on-scene officer’s notes – as the basis for her eviction deprived her of procedural fairness. For the reasons that follow we agree.

FACTUAL BACKGROUND

[6] The Tenant rents a subsidized unit in the Respondent’s, the Toronto Community Housing Corporation (the “Landlord”), residential complex in Toronto. She has rented her unit for 16 years and has been in subsidized housing her whole life.

[7] On May 13, 2017 the Tenant and her then-boyfriend, Ruwan Devundarage, (the “Complainant”) got into an argument. As a result of that argument, the Complainant left the rental unit, where he had been residing. At that time, the Tenant was the Complainant’s surety for criminal charges he was facing.

[8] According to the on-scene officer’s notes, the Complainant said that after he left the unit and was outside the building at ground level, he saw the Tenant throw one of his two pet rabbits over her 15^th^ floor balcony. Before she threw the rabbit, the Tenant yelled from her balcony that she was going to kill one of his rabbits. Once the rabbit was over the balcony, the Tenant yelled to the Complainant that his baby was dead.

[9] The Complainant called the police. When the police arrived they observed the rabbit 15 feet away from the building with no signs of life. The Tenant was arrested and charged with Causing Unnecessary Suffering to Animals.

[10] The Landlord sought the Tenant’s eviction. The original hearing before the Board took place on August 23, 2017. The Tenant did not appear and an eviction order was issued.

[11] The Tenant became aware of the eviction order and filed a Request to Review, alleging that she never received notice of the original hearing. Her request was granted and the Landlord’s application was reheard by Member Whittick on November 21, 2017.

[12] At the Review Hearing, the Landlord relied on the same evidence from the original hearing, including: the police report and on-scene officer’s notes, which included a signed notebook statement from the Complainant. At the Review Hearing a different officer read in the police report and notes. The Complainant was not called as a witness. As there were no witnesses called with any direct knowledge, there could be no cross-examination on the Landlord’s rendition of events.

[13] The Tenant introduced testimony from another witness and then testified herself. Both witnesses said the Tenant took the rabbits onto the balcony to clean the cage. The witness said that while one of the rabbits was in his arms, it jumped out and over the railing of the balcony. The witness said the Tenant was on the balcony at this time.

[14] The Tenant testified after the witness. She agreed that she took the cage onto the balcony to clean it and that, while one of the rabbits was in the witness’ arms, it jumped over the railing of the balcony. However, she maintained that she was in the kitchen when this occurred. The Tenant said she did not see the rabbit go over and was not on the balcony until after the rabbit died.

[15] The Board found the evidence of the Tenant and her witness to be “inconsistent and unreliable”. The Board stated that the issue of whether the Tenant was on the balcony at the time of the rabbit going over was a pertinent piece of evidence and noted that the Tenant and her witness gave conflicting versions on this point. This was the only inconsistency that the Board cited.

[16] The Board concluded that given “the Tenant’s unreliable testimony in tandem with the on-scene police officer’s notes, I am satisfied on a balance of probabilities that the Tenant was the individual who threw the rabbit over the balcony.”

[17] The Board found that the Tenant committed the illegal act of throwing the rabbit over the balcony and ordered an eviction pursuant to s. 81 of the Act.

THE ISSUE

[18] The key issue on this appeal is whether the Tenant was denied procedural fairness.

JURISDICTION AND STANDARD OF REVIEW

[19] It is agreed that s. 210(1) of the Act provides a right of appeal from a decision of the Board on a question of law. Section 210(1) provides that “Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.”

[20] It is agreed that a breach of procedural fairness is an error of law. This Court, therefore, has jurisdiction to hear this appeal.

[21] Where a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. Rather it is for the Court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27 which consist of:

The nature of the decision being made and the process followed in making it;
The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
The importance of the decision to the individual affected;
The legitimate expectations of the person challenging the decision; and
Respect for the procedural choices made by the decision-maker itself.

POSITIONS OF THE PARTIES

[22] The Tenant argues that the Board violated the rules of natural justice and denied procedural fairness by preferring the double hearsay evidence of the Complainant to that of the Tenant and her witness. The double hearsay constituted the on-scene officers notes that were introduced by the second officer at the Review Hearing. Both the Tenant and her witness testified in person under oath and were subject to cross-examination.

[23] The Tenant claims she had no opportunity to cross-examine the Complainant and, therefore, had no ability to question the reliability of his statement or his credibility. According to the Tenant, she was the Complainant’s surety in relation to a criminal charge and had kicked him out of her apartment. This could have given him a motive to lie. As such, the Tenant argues that she was denied procedural fairness as she was not given the opportunity to test the Landlord’s evidence on such issues.

[24] In support of her submission, the Tenant refers to s. 10.1 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22 (“the SPPA”) which permits a party to a proceeding to call, examine, and cross-examine witnesses.

[25] The Tenant notes that this Court has previously ruled that the admission of hearsay evidence can, in some circumstances, constitute a denial of procedural fairness. Further, there was no evidence before the Board that the Landlord was unable to locate the Complainant and no reason was given as to why the Complainant was not called to testify.

[26] The Landlord denies there was any breach of procedural fairness in admitting and relying on the hearsay evidence. The Landlord notes that s. 15(1) of the SPPA specifically permits the introduction of hearsay evidence, whether or not it was given under oath or affirmation. Therefore, the Landlord argues that its introduction raises no error of law.

[27] The Landlord also points to s. 183 of the Act, which provides that, “The Board 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”.

[28] The Landlord submits that the Board appropriately turned its mind to an examination of all the evidence and found that, based on the inconsistencies and unreliability of the Tenant’s evidence, it preferred the hearsay statement of the Complainant. Further, the Board provided reasons for its decision to prefer the hearsay evidence, that being the inconsistency between the oral testimony of the Tenant and her witness.

ANALYSIS

The Dangers of Hearsay Evidence

[29] As explained by David Watt, Watt’s Manual of Criminal Evidence, 2018 (Toronto: Thomson Reuters Canada Limited, 2018) [Watt’s Manual], at p. 373:

The there are at least four potential sources of error when a witness describes an event that she claims to have observed: i. perception; ii. memory; iii. communication; and iv. sincerity…[t]o diminish the possibility for error because of the dangers inherent in a witness’ description of a previous event, a witness is generally required to testify under three conditions: i. personal presence before the trier of fact; ii. under oath or its equivalent; and iii. subject to cross-examination.

The principle reason for the exclusion of hearsay is the absence of contemporaneous cross-examination. It is cross-examination that may best expose defects in perception and memory, as well as ambiguity in communication and want of sincerity.

[30] There are a number of common law exceptions to the exclusion of hearsay evidence. For evidence that does not fall within the traditional exceptions, it may still be admitted if it can satisfy the principles of necessity and reliability.

[31] Necessity requires satisfying the trier of fact that there is no other way to get the evidence before the court. The reliability requirement is generally met when it can be demonstrated that “there is i. no concern about the truth of the statement because of the circumstances in which the statement was made; or ii. no real concern arising from presentation of the statement as hearsay because the circumstances permit the testing of its truth and accuracy by means other than contemporaneous cross-examination” (Watt’s Manual, at p. 424). Even if the evidence can satisfy the requirements of necessity and reliability a trier of fact may still exclude it if its probative value is outweighed by its prejudicial effect.

[32] In the case at bar, the evidence at issue is the on-scene officer’s notes taken of what the Complainant said. The Complainant’s statement was not: (1) taken under oath (even though the Board was told that it was); (2) subject to cross-examination; (3) demonstrated to be necessary; or (4) shown to be reliable. Further, there is no question that this was the only evidence that the Tenant committed an illegal act. Therefore, its admission was extremely prejudicial to the Tenant.

[33] Further, there were reasons to be concerned about errors in the evidence due to both perception (the Complainant was on the ground and the events occurred fifteen floors up) and sincerity (the Complainant had a motive lie as the parties had gotten into an argument, and the Tenant told him to leave which was problematic as she was his surety).

[34] The Landlord correctly points out that under s. 15(1) of the SPPA the Board had the discretion to admit the evidence at issue. However, the Board’s discretion to admit the evidence does not mean that it should have done so in the circumstances of this case.

[35] Admitting hearsay evidence under s. 15(1) of the SPPA can and has been found to constitute a denial of natural justice (see B.(J). v. Catholic Children’s Aid Society of Metro Toronto [1987] O.J. No. 2614 (Div. Ct.) and Re Girvin et al. and Consumer’s Gas Co., [1973] O.J. No. 814 (Div. Ct.).

[36] Further, as put by the Alberta Court of Appeal in Pigeon v. University of Calgary, 2012 ABCA 139, at para. 59 “the relaxation of the rules of evidence does not relieve an administrative decision-maker of the responsibility to assess the quality of the evidence received in a reasonable manner, in order to determine whether it can support the decision being made.”

Did Admitting and Relying on the Hearsay Evidence in this Case Constitute a Denial of Natural Justice?

[37] As already noted, answering this question requires assessing whether the requisite level of procedural fairness has been accorded, taking into account the Baker factors.

The Nature of the Decision Being Made and the Process Followed in Making It

[38] The decision being made was a very important one. Losing one’s home is a very serious matter for anyone. Losing a place in subsidized housing can have even more devastating consequences. Subsidized housing is reserved for those who cannot afford to rent in the regular market. If one is evicted from a subsidized unit, the waiting lists are such that it could take years before an individual can obtain a new subsidized unit. The Tenant submits that it could take up to 20 years. The Landlord admits it is a long wait, but disputes that it is 20 years.

[39] In this case, the process followed for making the decision was one where the only evidence available to support the decision were the on-scene officer’s notes. The Tenant was given no opportunity to cross-examine the police officer who took the notes and, more importantly, the key witness against her.

The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to Which the Body Operates

[40] One of the Act’s purposes is to provide protection for residential tenants from unlawful eviction. The Act is remedial legislation with a tenant protection focus. It must be given a fair, large, and liberal construction to ensure the attainment of that object. If there is any ambiguity in the interplay between the various sections of the Act, it should be resolved in accordance with the tenant protection focus (Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, [2010] O.J. No. 2710 (C.A.), leave to appeal refused [2010] S.C.C.A. No. 369; Price v. Turnbull’s Grove Inc., 2007 ONCA 408 at para. 44).

[41] Section 183 of the Act requires 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 be heard on the matter” (emphasis added). Thus, the Act requires the Board to balance the need for expedition with the need for procedural fairness.

[42] Section 10.1 of the Act gives a party to a proceeding the right to cross-examine a witness while s. 12(1) gives the Board the right to summon a witness to testify under oath or affirmation at a hearing. Thus, there were procedures available to the Board that it could have potentially used to ensure that the Tenant had the right to cross-examine the key witness against her.

The Importance of the Decision to the Individual Affected

[43] The Tenant has lived in subsidized housing all her life. As a result of the decision she has lost her home of 16 years. She cannot afford to rent in the regular market. The decision may result in a permanent loss of subsidy for the Tenant and, it will take many years before she has a chance of obtaining another subsidized unit. The decision has deprived the Tenant of one of the essentials of daily living – housing.

The Legitimate Expectations of the Person Challenging the Decision

[44] Given the Act’s tenant protection focus and the importance of the decision to the Tenant, there was a legitimate expectation by the Tenant that she would have the right to test the key evidence against her by way of cross-examination. This expectation is underscored by the fact that Member Whittick based her decision on credibility findings. It is unfair that the Landlord should have had the opportunity to test the Tenant’s credibility, while the Tenant had no opportunity to test the credibility of the Complainant.

Respect for the Procedural Choices Made by the Decision-Maker Itself

[45] In this case, there is no question that the Board is an expert tribunal and that it had the discretion to admit the double hearsay evidence at issue. However, before doing so, Member Whittick did not ensure that this very prejudicial evidence could be admitted without compromising procedural fairness.

[46] We note that in a recent Board decision, SWT-12392-18 (re), 2018 42489, the Board warned against the undue reliance on hearsay evidence when “ the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested at the hearing”(p.2).

Conclusion re Procedural Fairness

[47] Taking into account all of the circumstances and the Baker factors, it is our view that the Board breached procedural fairness by admitting and relying upon the hearsay evidence at issue.

DISPOSITION

[48] For these reasons, we are setting aside the decision of the Board and remitting the matter back to the Board for a new hearing in front of a different Board member. There shall be a stay of eviction pending a determination at the new hearing.

[49] Neither party seeks costs and we make no order as to costs.

___________________________ SACHS J.

THORBURN J.

BALE J.

Date of Release: April 2, 2019