Court File and Parties

CITATION: El Sayed v. Ottawa Community Housing Corporation, 2019 ONSC 3703

DIVISIONAL COURT FILE NO.: 18-2399

LTB File: EAL-71511-18

DATE: 20190614

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: OMER AHMED EL SAYED, Appellant AND: OTTAWA COMMUNITY HOUSING CORPORATION, Respondent

BEFORE: Aston, Swinton and Sachs JJ.

COUNSEL: Omer Ahmed El Sayed, in person Laura Clark, for the Respondent

HEARD at Ottawa: June 13, 2019

Endorsement

[1] The appellant Omer Ahmed El Sayed appeals from a decision of the Landlord and Tenant Board (the “Board”) dated May 29, 2018 that terminated the tenancy of the appellant and his wife for non-payment of rent and ordered eviction. The respondent, Ottawa Community Housing Corporation, is a “local housing corporation” within the meaning of the Housing Services Act, 2011, S.O. 2011, c.6 (the “HSA”).

[2] An appeal lies to this Court only on a question of law (s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”)). The standard of review with respect to the Board’s interpretation and application of the RTA is reasonableness. With respect to issues of procedural fairness, there is no standard of review. The Court must determine whether the Board has met the applicable duty of procedural fairness.

[3] At the outset of the hearing before this Court, the appellant asked for an adjournment on the basis that he is challenging an earlier decision of the Divisional Court dated June 16, 2017 involving the same parties (2017 ONSC 3702) before the Supreme Court of Canada, and because two of the members of the present panel were panel members in that decision.

[4] There is no pending appeal of the 2017 decision. The Court of Appeal denied leave to appeal on November 17, 2017. The appellant’s motion to extend time for leave to appeal to the Supreme Court of Canada was only served within the last day or two. His motion has not been heard, and therefore, there is no pending appeal.

[5] In our view, it is not material that the present panel includes two judges from the earlier panel. The question before this Court is whether the Board member erred in her conclusion that the 2017 decision of the Divisional Court was binding on the Board. Clearly it was. The issue before us is not whether the 2017 decision was correct. The issue is whether it was binding on the Board. Accordingly, the request for an adjournment was denied.

[6] The appellant’s primary argument was that he was denied procedural fairness by the Board in two ways: first, the Board member exhibited bias, and second, the Board member interfered with his ability to present his case.

[7] With respect to reasonable apprehension of bias, the appellant submits that the Board member predetermined her decision, could not be persuaded and was not open to hearing any arguments that would change her mind.

[8] We have reviewed the entire transcript of the Board hearing. The record does not reflect any evidence upon which a reasonable person would conclude there was an appearance of bias. Rather, the record shows that the member wished to have the hearing proceed in a certain fashion, that the appellant did not agree with the manner in which she defined the issues, and the appellant thought she was wrong when she asserted that she was bound by the 2017 Divisional Court decision.

[9] With respect to procedural fairness, the appellant alleges that the Board member interrupted him 37 times, refused to allow him to read in a lengthy written submission on a preliminary matter, and refused to allow him to question the landlord’s representative.

[10] A review of the transcript reveals that the Board’s interruptions and directions as to how evidence and submissions should be presented were legitimate and fair exercises of the Board’s power to control its process. Often the member was seeking to understand the appellant’s perspective and to clarify the issues. He was given a chance to present evidence and asked at the end of the hearing, “What else did you want to – did you want to question Ms. Clark on?” The appellant replied, “I don’t want to ask anybody anything.” In our view, there was no denial of procedural fairness.

[11] The appellant argues that the Board erred in failing to address ss. 4, 7(1) and (5), 8 and 123 of the RTA. He claims that those provisions support his position that parking charges must be included in his rent geared to income (“RGI”) when those sections are read in combination with ss. 50, 51 and 180 of the HSA.

[12] The Board member correctly concluded that the Divisional Court decision in 2017 held that the parking charges were not part of the RGI, and she could not reach a different conclusion on the interplay between these legislative provisions.

[13] In any event, the appellant misinterprets ss. 7(1) and (5) of the RTA. Section 7(5) does not apply to the appellant’s rental unit because he pays rent to the local housing authority. Therefore, s. 7(1) does apply. That section states that certain provisions of the RTA are not applicable to tenants under the HSA. For example, the amount of RGI is determined exclusively under the HSA, and the Landlord and Tenant Board has no authority in that regard. However, s. 7(1) does not exempt s. 123, which deals with agreements to pay rental charges for additional services, including parking. There is no inconsistency between the provisions of the RTA and the HSA when it comes to the ability to charge parking as rent.

[14] In this case, the Board member specifically acknowledged the limitation on her jurisdiction, given the decision of the Divisional Court. She confined herself to the two issues identified in the Divisional Court decision: first, whether there were rental arrears (including parking charges), and second, whether the agreement with respect to parking charges was void on the basis of duress.

[15] The appellant led no evidence at the hearing to dispute the calculation of arrears. His position was simply that he was not obliged to pay for parking.

[16] In his factum the appellant argues that the Board erred in accepting the respondent’s claim of arrears, as part of the claim fell outside the limitation period of two years prescribed by the Limitations Act, 2002, S.O. 2002, c. 24. This argument was not raised before the Board, and it cannot be pursued for the first time on appeal.

[17] With respect to the issue of duress, the appellant argues that the Board member applied the wrong test for duress. We disagree. She set out the correct legal test and then applied it. The appellant has not identified any error of law by the Board.

[18] We also note that the parking contract that was the focus of this appeal was signed on November 14, 2006, after the appellant and his family had moved into the rental unit, and more than a month after he signed the original tenancy agreement with the words “under duress.” The November contract was signed because the appellant requested a second parking space, and there was no evidence that this contract was signed under duress.

[19] For these reasons, the appeal is dismissed, and the stay of the Board’s order is lifted. The Board’s order may be filed with the Sheriff for execution, but the eviction shall not take place before July 31, 2019. Costs to the respondent fixed at $500.00.

Aston J.

Swinton J.

Sachs J.

Date released: June 14, 2019