CITATION: Turner v. Northview Apartment Reit, 2019 ONSC 2204
DIVISIONAL COURT FILE NO.: DV 20/18
DATE: 20190405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WILTON-SIEGEL, FREGEAU and RYAN BELL, JJ.
BETWEEN:
Raymond Turner
Applicant
– and –
Northview Apartment Reit
Respondent
Self-Represented
Kristin A. Ley, for the Respondent
HEARD at London: April 5, 2019
Delivered orally: April 5, 2019
Wilton-Siegel J.
[1] The appellant, Raymond Turner (the “Tenant”), appeals the eviction order made by Member Lorraine Mathers (the “Member”) of the Landlord and Tenant Board (the “Board”) issued on June 8, 2018 (the “Order”) and the review order of Member Kevin Lundy (the “Review Board”) issued June 20, 2018 (the “Review Order”).
[2] The Tenant has resided at the apartment building in question for about four years. He receives payments under the Ontario Disability Support Program and has various health issues. The apartment building is currently managed by Northview Apartment REIT (the “Landlord”).
[3] On March 14, 2018, the Tenant and one of the Landlord’s employees got into a heated argument regarding the scheduling of repairs in the Tenant’s rental unit and who would be doing the work. The Tenant grabbed the employee’s arm and twisted it behind his back before letting go, and, following further heated conversation, again grabbed his arm and twisted it, pushing the employee into the wall. A video camera captured the incident.
[4] The Landlord applied for an order to terminate the tenancy and evict the Tenant on the basis that he had seriously impaired the safety of another person in the residential complex and committed an illegal act by assaulting a member of the Landlord’s staff. Criminal assault charges were also laid but were pending at the time the application was heard.
[5] Pursuant to the Order, the Board granted the Landlord an order evicting the Tenant under section 69 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) and ordered that he was to vacate the apartment within ten days. The Tenant requested a review of the Order pursuant to section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and the Act. The Tenant’s request for review was denied and the Order was confirmed unamended pursuant to the Review Order.
[6] The Tenant appeals the Order and the Review Order to this Court. This Court has jurisdiction to hear this appeal based on s. 210 of the Act, but only on a question of law. The Court has the power to affirm, rescind, amend or replace a decision or order, or remit the matter to the Board with the opinion of the Court. It can 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.
[7] Decisions of the Board interpreting and applying its home statute are subject to review on the standard of reasonableness, unless the issue is of central importance to the legal system and outside the Board’s expertise: see First Ontario Realty Corporation v. Deng, 2011 ONCA 54, 330 D.L.R. (4th) 461, at para. 21.
[8] However, where the allegation is a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review but is instead required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to: see London (City of) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.), at para. 10. It is for the court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors from Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. The duty of procedural fairness requires, among other things, that there be no bias or reasonable apprehension of bias on the part of the decision-maker.
[9] The Tenant raises a number of grounds of appeal. As a preliminary matter, however, it is necessary to address an allegation of a perception of bias on the part of the Member. The relevant facts are as follows.
[10] The Member had previously been engaged by the former property manager of the same apartment building to act against the Tenant in respect of a landlord’s notice to terminate based on the Tenant’s failure to pay rent (the “Prior Proceeding”). The Prior Proceeding was the subject of a hearing on July 22, 2016 at which the landlord’s application was discontinued as a result of the Tenant’s payment of all amounts owing in respect of rent and the application. The Member attended that hearing on behalf of the landlord. It also appears that the previous property manager had commenced a number of other eviction proceedings against the Tenant before the Prior Proceeding. It should be noted that there has been no change in the owner of the apartment building at all relevant times.
[11] At the hearing before the Member in this proceeding, neither the Member nor the Tenant raised the involvement of the Member in the Prior Proceeding. It should be noted that there is no evidence in the record as to whether the Member recognized the Tenant from her prior retainer.
[12] The Tenant first raised the prior involvement of the Member in the course of the review hearing alleging that he was denied a reasonable opportunity to present his evidence because the Member was biased against him based on her prior involvement. In the Review Decision, the Review Board stated that the proper time to have raised this issue would have been the hearing before the Board but that no such objection was raised on that date. The Review Board noted, however, that, in his review request, the Tenant stated that he did not recall his prior interaction with the Member until after the hearing before the Board had ended. There is nothing in the record to contradict this evidence.
[13] The Review Board found that the Tenant had failed to demonstrate that the Member exhibited any improper bias or any reasonable apprehension of bias against him that would have reasonably affected her decision. The following summarizes his reasons.
[14] The Review Board referred to the test for bias first formulated by de Grandpré J. writing in dissent in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394 and adopted by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), among other decisions:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”.
[15] Commenting on the application of this test to the present circumstances, the Review Board stated the following:
[16] This is an objective test, measured in terms of the impression held by the reasonable observer. The categories in which reasonable apprehension of bias can occur are not closed and vary according to the general principles of procedural fairness. The limits of bias can be examined in the context of antagonism during the hearing, prior association, involvement in the preliminary stage, statutory authorization and attitudinal bias. Generally, an active role in the hearing process or a closed mind is not equivalent to bias. An adjudicator should not however, cast ‘gratuitous aspersions’ on the character or physical attributes of the participant, his counsel or representative. Based upon the text of the order and the hearing recording, I find that none of these factors were apparent in the present case.
[17] In terms of attitude, the trier of fact must not appear predisposed to a particular conclusion and should direct her mind to the claim before her. The hearing recording from June 5, 2018 indicates that the Member offered both sides a full opportunity to present evidence and submissions on the issues of the L2 Application. At no point did she demean, insult or disparage the Tenant or his Legal Representative. Although she expressed some skepticism towards his claims of self-defence, the recording and the order itself confirmed that she allowed the Tenant’s Legal Representative to present this argument in full and thoroughly considered it in the order.
[18] The Review Board concluded that, essentially, the Tenant attempted to attribute the Member’s findings against him to bias with nothing to support this allegation beyond the circular argument that she must have been biased against him because she ultimately preferred the evidence of the Landlord.
[19] The Review Board also made the following finding regarding the significance of the Member’s involvement on behalf of the former property manager of the apartment building:
… to establish bias, one must demonstrate more than that the Member has issued one or more adverse decisions, even if there have been several such adverse decisions. That the Member may have advocated against his interests while she was a legal representative in past hearings before the Landlord and Tenant Board … cannot in and of itself constitute even the reasonable apprehension of bias.
[20] We are in complete agreement with the Review Board’s conclusion that a reading of the transcript of the hearing before the Member does not reveal any evidence of actual bias on the part of the Member. We also agree that the fact that a member of the Board has issued one or more adverse decisions does not by itself establish a reasonable apprehension of bias.
[21] However, we do not agree with the Review Board that the fact “[t]hat the Member may have advocated against his interests while she was a legal representative in past hearings before the Landlord and Tenant Board … cannot in and of itself constitute even the reasonable apprehension of bias”. In our view, in the present circumstances, the Member’s prior involvement against the Tenant on behalf of the landlord of the apartment building raises a reasonable apprehension of bias that required the Member to recuse herself for the following reasons.
[22] It is not disputed that the former property manager attempted to have the Landlord and Tenant Board terminate the Tenant’s tenancy and order an eviction notice on a number of prior occasions. In the absence of evidence to the contrary, an objective observer could reasonably assume that the Member would have become aware of this history between the former property manager, her client, and the Tenant in the course of her engagement. A reasonable person would assume that the Member could not exclude the possibility that such prior knowledge would unconsciously influence the Member’s decision.
[23] In this case, although there was video evidence of the altercation upon which the notice of application for eviction was based, the Member was also required to make credibility findings and, significantly, to exercise her discretion under s. 83 of the Act. In this regard, the Member ordered that the Tenant be evicted within the minimum time provided for in the circumstances without giving any reasons. While there is no evidence of actual or conscious bias on the part of the Member in the conduct of the hearing, an informed person, viewing the matter realistically and practically and having thought the matter through could reasonably conclude that an unconscious bias may have influenced the Member’s determinations and the exercise of her discretion.
[24] The Landlord argues that the fact that the applicant in these proceedings was not the same property manager as the Member’s former client is relevant to this issue. It is not. It appears that, in each case, the actual owner of the apartment building was the same even if the property manager has changed. More importantly, what is relevant is that the Member acted against the Tenant in circumstances that give rise to a reasonable apprehension of bias.
[25] In our view, the test for a reasonable apprehension of bias as set out above is met in the present circumstances. The existence of a reasonable apprehension of bias based on the Member’s prior involvement in eviction proceedings against the Tenant constitutes a denial of natural justice that requires that the Order and the Review Order be set aside and the Landlord’s application for eviction be remitted to the Landlord and Tenant Board for a hearing de novo before a differently constituted board.
“Justice J. Fregeau”
Fregeau, J.
I agree “Justice H. Wilton-Siegel”
Wilton-Siegel, J.
I agree “Justice R. Ryan Bell”
Ryan Bell, J.
Released orally: April 5, 2019
CITATION: Turner v. Northview Apartment Reit, 2019 ONSC 2204
DIVISIONAL COURT FILE NO.: DV 20/18
DATE: 20190405
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Raymond Turner
Applicant
– and –
Northview Apartment Reit
Respondent
REASONS
Released: April 5, 2019