Riddell v. Huynh, 2019 ONSC 2620
CITATION: Riddell v.Huynh, 2019 ONSC 2620
DIVISIONAL COURT FILE NO.: DC-18-16
LANDLORD AND TENANT BOARD FILE NO.: CET-67652-17-RV
DATE: 2019-05-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. GORDON, BACKHOUSE, BALE JJ.
BETWEEN:
Matthew Riddell
Appellant (Tenant)
– and –
Ngoc Thi Cam Huynh
Respondent (Landlord)
Self-Represented
Not appearing
Eli Fellman, counsel for the Landlord and Tennant Board
HEARD at Brampton: April 10, 2019
THE COURT
Overview
[1] On January 15, 2018, the Appellant’s application to the Landlord and Tenant Board (the “Board”) was scheduled for hearing. He did not appear and his application was dismissed as abandoned.
[2] The Appellant filed a request to review the decision on the ground that he had a legitimate reason for not attending on the scheduled hearing date. A review hearing was scheduled for February 23, 2018. The Appellant was in attendance but after more than two hours and his matter not having been reached, he requested an adjournment. When the adjournment was denied he left and the matter was once again dismissed as abandoned.
[3] The Appellant appeals from these decisions. In addition, the Appellant has brought a motion asking that certain of the materials filed on this appeal by the Board be struck.
Background Facts
[4] On June 20, 2017, the Appellant filed a T2 Application (illegal entry by the landlord) and a T6 Application (maintenance issues the landlord is required to rectify) with the Landlord and Tenant Board.
[5] These applications were first scheduled for hearing before the Board on August 10, 2017. Prior to that hearing date, the parties agreed to adjourn the hearing and it was rescheduled for October 17, 2017.
[6] On October 17, 2017 the hearing was again adjourned on the consent of the parties. A new hearing date of January 15, 2018 was communicated to the parties in a Notice of Hearing.
[7] On January 13, 2018 the Appellant sent the following letter to the Respondent by email:
Please be advised that my grandmother passed away this week and accordingly, I will be attending her funeral. Consequently thereof, I will not be able to attend the Board hearing on the morning of Monday, January 15, 2018. I filed correspondence with the Board and I wanted to advise you so that you don’t have to waste anytime attending and driving from Newmarket.
[8] There is no evidence before us that the Respondent replied to this correspondence. It turns out that the Board received no correspondence from the Appellant advising of the reason he could not be in attendance on January 15.
[9] The Respondent attended the scheduled hearing. The Appellant did not. The Board issued a decision noting that the Appellant was not in attendance to proceed with his application and made a finding that the application was abandoned.
[10] On January 18, 2018 the Appellant filed a request to review the Board’s order of January 15, 2018 on the ground that he was at an interment for his grandmother on that date. His request to review was granted on a preliminary basis and a Notice of Hearing was mailed to him on January 19 indicating that a review hearing would be held on February 23, 2018 at 9:30 a.m.
[11] On February 23, 2018 the parties attended for the review hearing. At approximately noon the matter had not yet been reached and the Appellant requested an adjournment. He asserted that his matter should have been heard before the other contested matters scheduled for the same time because it would take him only 10 minutes to make his submissions. He also asserted that a Board staff person advised him that his hearing would be held in the “morning tier” and that he was unable to attend in the afternoon because he had a work meeting to attend and had to file documents with the Divisional Court. The Board offered to stand the hearing down in order to provide the Appellant with time to complete these tasks. He declined the offer. On being informed that his adjournment request was denied, the Appellant informed the Board that he intended to leave and would file an appeal with the Divisional Court. The exchange between the Appellant and the Board on this point was as follows:
Board Member: …So Mr. Riddell, I’m not granting your request for an adjournment. You, you’ve had ample time to arrange to reschedule this earlier. In fact, this is your request to review. We’ve had full day blocks now for quite a while. I’m not sure how you would reach a conclusion as to how long a particular matter may take. So what, what I can do, though, is if you need some time to go and take care of some of the items you mentioned, we can agree on a time and you can come back, because now I am going to deal with these parties first and I’m expecting it to take about an hour to an hour and a half.
Matthew Riddell: That’s fine. You can make your order at this point. I’m going to file my appeal with the Divisional Court (indiscernible).
Board Member: So you’re not – your choosing not to stay here today?
Matthew Riddell: That’s correct.
[12] The Board issued a decision on March 8, 2018 noting the request to review as abandoned. In its decision the Board provided the following reasons for denying the Appellant’s adjournment request:
Section 183 of the Act directs the Board to adopt the most expeditious method of determining the questions arising in a proceeding while affording the parties an adequate opportunity to be heard.
The Board’s Interpretation Guideline 1 states that in applying section 183 the Board must ensure that the parties are given an adequate opportunity to be heard. As well, the Guideline states that the key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their rights to a fair hearing. Furthermore the Board must weigh the prejudice that might be suffered by each party.
In Edwards v. Waham 2017 ONSC 2882, the Court held “[O]ne of the clear statutory purposes of the Landlord and Tenant Board is to afford landlords and tenants access to adjudication in a timely, cost effective setting where matters are heard in a summary manner (paragraph 37).
The Tenant requested the adjournment at 12:00 p.m. I offered him an opportunity to return later in the afternoon and suggested 3:00 p.m. The Tenant refused to consider this option, without providing any reasons why additional time would not allow him to satisfy his other arrangements and told me he was leaving the hearing.
The Tenant did not provide any information regarding the necessity or importance of attending a meeting at work. Nor did he explain why he could not make other arrangements to file his documents at Court or why three hours was insufficient time to do so.
I find it improbable that the Board staff assured the Tenant that the hearing block was a morning block because the Board has moved to full day blocks for quite some time.
The Tenant is sophisticated. Based on his submissions, he is well versed with Board proceedings and with the Act as is clear from the content of his application. The Tenant’s refusal to consider options such that the hearing could proceed shows a lack of diligence in making himself available to participate in this review hearing, which he requested. As stated by the Court in Q Res IV Operating CP Inc. v. Berezovs’ka 2017 ONSC 5541 “[I]f parties are not diligent in dealing with legal proceedings then they cannot demand that a Tribunal waste its resources by rehearing matters a second time. To allow this would undermine the ability of the administration of justice to deliver timely cost-effective and final orders” (paragraph 8).
The Landlords have now attended a second hearing. The Tenant did not provide good reason for his refusal to consider options to have his application heard today and it is therefore more prejudicial to the Landlords to have to appear again without good reason to do so. Moreover, the Board has scheduled time to hear the Tenant’s request for review and proceed with hearing his application if his review was successful in accordance with the Board’s mandate to conduct its proceedings in an expeditious manner.
[13] The Appellant filed his appeal to this court. The Board is entitled to be heard under section 210 of the Act. It filed a compendium, factum and casebook. The Appellant objects to certain of the filings.
Jurisdiction
[14] Section 210 of the Residential Tenancies Act, 2006, provides that any person affected by an order of the Board may appeal the order to the Divisional Court but only on a question of law.
[15] Accordingly, to the extent the Appellant raises a question of law, this court has jurisdiction to hear the appeal.
Standard of Review
[16] The standard of review of a decision of the Board when interpreting its home statute, regulation and rules is reasonableness. In determining whether a decision is reasonable, the court is concerned with justification, transparency and intelligibility of the Board’s reasons as well as whether the decision falls within a range of possible acceptable outcomes given the facts and the law [see Dunsmuir v. New Brunswick, 2008 SCC 9].
[17] For questions of procedural fairness or natural justice the court is required to evaluate whether the rules of procedural fairness or natural justice have been adhered to in the specific circumstances of each case, having regard to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[18] In the case before us, it is important to understand that the decisions being appealed from are: (1) The Board’s initial decision to treat the applications as abandoned due to the Appellant’s failure to attend at a scheduled hearing; and (2) the Board’s refusal to adjourn the review hearing for which proper notice had been given and at which the Appellant had initially attended.
[19] Accordingly, questions pertaining to procedural fairness and natural justice must be addressed in the context of those decisions and how they were made.
The Appellant’s Motion to Strike
[20] The Appellant asks that paragraphs 40-43 of the Board’s factum, Tab 6 of the Board’s Book of Authorities, and Tabs 1 and 4 of the Board’s compendium all be struck.
[21] With respect to the Board’s factum, we agree that the following part of paragraph 40 should be struck, as it refers to evidence that was not before the Board when the decisions under appeal were made: “as well as decisions rendered by other tribunals addressing his conduct during administrative proceedings.” The remainder of this paragraph simply asks that the court have regard to the entire record of proceedings before the Tribunal and we see no issue with that submission.
[22] With respect to paragraph 41 of the Board’s factum, it has agreed to the removal of the first bullet point. With respect to the second bullet point, it indicates a discrepancy in factual allegations contained in documents authored by the Appellant. We see nothing improper in this.
[23] We agree with the Appellant that paragraphs 42 and 43 of the Board’s factum should be struck as they reference documents or facts not before the Board when it made its decision.
[24] Tab 6 of the Board’s book of authorities is a reported case submitted not for its value as precedent, but for its remarks concerning the Appellant. It was not before the Board. It is not submitted to this court as fresh evidence and will not be considered.
[25] The Appellant asks that Tab 1 of the Board’s compendium be struck. We decline to do so as it forms part of the adjudicative record that was before the Board when it made its decision.
[26] The Board agreed to strike Tab 4 of its compendium and it is ordered that the contents of that Tab be sealed.
Analysis
[27] In Part I of his factum, the Appellant gives the following overview of his appeal:
This is an appeal by the Tenant, Matthew Riddell (the “Appellant”) from a decision of the Landlord and Tenant Board, (the “Board”), dated January 15, 2018 and a review of that decision, dated February 23, 2018. The Member of the Board, Avril Cardoso, dismissed as abandoned the Appellant’s T2 and T6 Tenant Applications ex parte. The same Member (sitting on a review of her own decision) then summarily dismissed the review, without considering any of the evidence in support of the Review Application.
[28] This overview reflects a fundamental misunderstanding of what transpired before the Board. It is a misunderstanding that underscores virtually all of the Appellant’s submissions.
[29] At the initial hearing on January 15, 2018 the Appellant did not appear. Although he had advised the Respondent that he would not appear, he did not ask that she consent to an adjournment. He did not ask that she relay his circumstances to the Board. The Board received no notice from him that he would not be in attendance or why. He did not arrange for an agent to be present on his behalf.
[30] When the matter was called the Respondent was present but he was not. Although the Respondent did not advise the Board of the letter they had received from the Appellant, she did not deceive the Board and was entitled to rely on the Appellant’s representation that he had sent the Board correspondence advising of the circumstances that prevented his attendance.
[31] In these circumstances, the decision of the Board to dismiss his applications as abandoned can hardly be criticized. As far as it knew, the Appellant had been provided a notice of hearing and had failed to appear. It was that simple. It is hard to imagine what additional procedural fairness could have been afforded the Appellant given that he was not present and the Board received from him no notice of his inability to attend.
[32] With respect to the review hearing, it is true that the Board dismissed the review without considering any of the evidence in support of the Review Application, but this is because the Appellant had requested an adjournment of the review hearing, was denied his request, and then elected to leave. The result is that there was no one present to advance the review hearing. No one to argue the merits. No one to conduct the hearing of the applications in the event the review hearing was successful.
[33] The Appellant’s unwillingness or inability to remain for the review hearing resulted in its dismissal as abandoned. What is really at issue in this appeal is the Board’s decision to deny the Appellant’s request for an adjournment.
[34] The Appellant has couched the grounds for his appeal in the language of procedural unfairness and breaches of natural justice that can be summarized as follows:
The Respondent acted unreasonably in failing to bring his circumstances to the attention of the Board at the initial hearing.
It was unfair of the Board at the review hearing to not afford him 10 minutes to argue his case on the review hearing.
It was unfair to deny his request for an adjournment when he had been advised by administrative staff that his review hearing would be heard in the morning and he was unavailable in the afternoon.
It was unfair to make him wait for his review hearing to be conducted while other lengthy contested matters were heard.
He was not advised that if his review hearing was successful he would be required to conduct the hearing of his applications that same day.
The Board did not consider that the Respondent led no evidence of prejudice in the event an adjournment was granted.
The Board did not consider the reason why he had been unable to attend at the initial hearing.
The transcript from the proceeding before the Board is incomplete and renders appellate review meaningless.
[35] With the exception of #3, #6 and #8, none of these arguments are relevant to the issue of the adjournment request declined by the Board and raise no issue of procedural unfairness or breach of natural justice.
[36] The Appellant was provided a date for the review hearing to be held. He attended on that day and, after waiting for more than two hours for his matter to be reached, requested an adjournment. He was given a full opportunity to make submissions in support of his request. The Board declined to grant the adjournment and gave fulsome reasons explaining its decision.
[37] The Appellant submitted to the Board that he had been advised by administrative staff that his matter would be heard in the morning as part of the morning “block” of cases. It was within the knowledge of the Board member that cases had not been scheduled except in full day “blocks” for quite some time. She therefore concluded that it was unlikely the Appellant had been so advised. This was a reasonable conclusion available to the Board member and is entitled to deference.
[38] The Appellant submitted to the Board that he required the adjournment because he had to complete filings in the Divisional Court and had a work meeting to attend that afternoon. The Board member and the Appellant had the following exchange:
Board Member: …So what, what I can do, though, is if you need some time to go and take care of some of the items you mentioned, we can agree on a time and you can come back, because now I am going to deal with these parties first and I’m expecting it to take about an hour to an hour and a half.
Matthew Riddell: That’s fine. You can make your order at this point. I’m going to file my appeal with the divisional court (indiscernible).
Board Member: So you’re not – your choosing not to stay here today?
Matthew Riddell: That’s correct.
[39] There was no explanation by the Appellant of why he would not be able to return to conduct the review hearing later in the afternoon. There was no attempt by him to see if someone else could attend to his filings. There was no attempt to reschedule his work meeting. This led the Board to conclude as follows:
The Tenant requested the adjournment at 12:00 p.m. I offered him an opportunity to return later in the afternoon and suggested 3:00 p.m. The Tenant refused to consider this option, without providing any reasons why additional time would not allow him to satisfy his other arrangements and told me he was leaving the hearing.
The Tenant did not provide any information regarding the necessity or importance of attending a meeting at work. Nor did he explain why he could not make other arrangements to file his documents at Court or why three hours was insufficient time to do so.
[40] It is clear that the Board member considered the submissions of the Appellant but was not satisfied with the substance of what she heard. She was entitled to reach the conclusions she did.
[41] On the issue of prejudice to the Respondent, the Board was clearly aware of its mandate to afford landlords and tenants access to adjudication in a timely and cost effective manner. It was aware that the Appellant’s applications had been outstanding since June of 2017. It was aware that the Respondent had attended at the initial hearing. It was aware she was present and wished to have matters dealt with that day. It was fair for the Board to draw an inference that an adjournment of the review hearing would further delay the proceeding and would result in additional costs to the Respondent, to her prejudice. She determined that this prejudice to the Respondent was greater than the prejudice to the Appellant of requiring him to proceed that day, particularly given the Appellant’s failure to consider the reasonable alternative of dealing with the hearing later in the day. We are satisfied that the Board appropriately considered the issue of prejudice in these circumstances.
[42] Dealing lastly with the issue of the transcript, it is true that the transcript from the proceedings on February 23, 2018 shows many instances in which the words of the Appellant were indiscernible. He argues that this prevents any meaningful review of the evidence before the Board and the manner in which it was considered. We disagree. In this case, the Board Member provided fulsome reasons for her decision to deny the Appellant’s adjournment request. In those reasons, she summarized the submissions made by the Appellant and explained why she was not persuaded by them. In addition, notwithstanding the “indiscernible” aspects of the transcript, we are able to discern what transpired in three ways: (1) Much of the transcript is complete and accurately reflects what was said; (2) The Appellant sometimes repeated himself, so that what appears as indiscernible at one point in the transcript is fully recorded someplace else; (3) In the Board Member’s exchanges with the Appellant she often repeated his submission or provided a comment that made clear what had been submitted by him.
Conclusion
[43] It is well settled that an administrative tribunal such as the Board is entitled to control its own procedure and is entitled to deference on matters requiring the exercise of discretion, such as scheduling and adjournment requests. [See Re Flamboro Downs Holding Ltd. and Teamsters Local 879, Kalin v. Ontario College of Teachers, Peel Housing Corporation o/s Peel Living v. Sharp, 2017 ONSC 6303, Warraich v. Choudhry, 2018 ONSC 1275].
[44] We agree with the decision of this court in Solomon v. Levy, 2015 ONSC 2556, which provided as follows:
[39] While the granting of adjournments is in the discretion of the Board member hearing an application, the general approach of the Board is informed by section 183 of the Act, which directs 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 proceedings an adequate opportunity to know the issues and to be heard on the matter.
[40] Accordingly, the Board member must take into account the public interest in resolving a case as soon as possible. The key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing.
[42] In the circumstances of the within case, it cannot be said that, by denying the Tenants’ request for an adjournment, the Board conducted itself in an arbitrary fashion or denied the Tenants natural justice. The Board, as its decision makes plain, considered the submissions in respect of the Tenants’ adjournment request and decided not to accede to this request. The Board’s decision was based on the prevailing facts and circumstances, and was made after hearing and considering submissions of the parties. There was ample reason for the Board’s refusal to delay the hearing of the Landlord’s application.
[45] The same principles apply in this case. There was no procedural unfairness. There was no breach of natural justice. The Board member provided the Appellant with an opportunity to request the adjournment and make submissions. She was not satisfied that an adjournment was warranted given all of the circumstances and the competing interests at play. Although one may or may not agree with her decision, it certainly falls within a range of possible acceptable outcomes.
[46] It follows that the appeal is dismissed. There will be no order as to costs.
R.D. Gordon, J.
I agree _______________________________
Backhouse, J.
I agree _______________________________
Bale, J.
Released:
CITATION: Riddell v.Huynh, 2019 ONSC 2620
DIVISIONAL COURT FILE NO.: DC-18-16
LANDLORD AND TENANT BOARD FILE NO.: CET-67652-17-RV
DATE: 2019-05-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. GORDON, BACKHOUSE, BALE JJ.
BETWEEN:
Matthew Riddell
Appellant
– and –
Ngoc Thi Cam Huynh
Respondent
REASONS FOR JUDGMENT
Released: May 7, 2019