Introduction

[1] Nzinga Wright claims that her former landlords, Natalia Maliartchouk and Valeri Maliartchouk, unlawfully entered her apartment, harassed her and removed her possessions before the end of her tenancy.

[2] The Landlord and Tenant Board dismissed Ms. Wright's application for compensation on the basis that she did not make any efforts to retrieve her belongings and thereby failed to prove her damages or to mitigate her damages.

[3] Ms. Wright appeals from the Board's order dated July 27, 2018, and the Board's review decision dated September 4, 2018,

[4] For the reasons that follow, the appeal is dismissed.

Factual background

[5] Starting on August 15, 2017, Ms. Wright rented a basement apartment in a house owned by the respondents.

[6] Ms. Wright gave notice to the respondents that she intended to terminate the tenancy on April 1, 2018. Ms. Wright claims that, after she gave notice of termination, on March 14, 2018, one of the respondents entered the apartment without permission, yelled at her and hit her with a magazine. Ms. Wright then left the apartment to stay with a friend. When Ms. Wright returned to the apartment on March 21, 2018, the respondents had removed many of her belongings and placed them outside in plastic bags. Ms. Wright retrieved some items, but left the rest of her belongings behind and indicated at the hearing before the Board that she has no intention of retrieving them.

[7] Ms. Wright brought an application to the Board, alleging that the respondents had harassed her, unlawfully entered her apartment and unlawfully removed her possessions from the apartment. In the remedy section of the application form, the appellant stated that she was seeking the cost of replacing a number of items with a total value of $15,000, which she claims included a diamond necklace valued at $5,000, a gold watch valued at $1,500 and a damaged laptop and printer valued at $1,500. During the hearing before the Board, Ms. Wright's lawyer confirmed that his client was only seeking compensation for the value of the property she claims the respondents removed from the apartment.

[8] The hearing before the Board took place on July 4, 2018. Ms. Wright was represented by counsel and the respondents were represented by an agent. The only witness at the hearing was Ms. Wright.

[9] The Board issued its decision dismissing the application on July 27, 2018. In its decision, the Board briefly reviewed the facts, and then stated that the only remedy sought by the appellant was a payment in the amount of $15,000 as compensation for the items she claimed were taken out of the apartment, including the necklace, gold watch and laptop. The Board went on to make a factual finding that, as of the date of the hearing, the respondents still had all the appellant's possessions, which were being kept in the apartment or in a covered area outside the building.

[10] The Board then dismissed Ms. Wright's claim on the basis she had failed to prove that she suffered any damages and that she had failed to mitigate her damages by choosing not to retrieve her personal items:

I asked the Tenant if it was possible that some or all of her missing items were amongst the belongings in the unit and/or packed up by the Landlord. The Tenant stated that she did not wish to touch her possessions because she felt violated. She did not take the mattress because she felt it had been altered in some way. The Tenant's representative stated that the Tenant had no intention of claiming these items. By refusing to look through and/or take her belonging, the Tenant has completely failed to mitigate her damages as required by section 16 of the Residential Tenancies Act, 2016 (the Act).
The Tenant presented insufficient evidence to support her claim regarding the damaged items.

[11] The Board concluded that, even if the appellant had made out the allegations of wrongful conduct by the respondents, she would not be entitled to any damages. The Board also noted that the allegations of assault were being addressed in another forum.

[12] In a subsequent decision dated September 4, 2018, the Board denied Ms. Wright's request for a review in part on the basis that the "Tenant's explanation for not removing all her belonging …, or even opening some of the bags her belongings were stored in, was not reasonable and inconsistent with her claim she was missing jewelry worth thousands of dollars".

[13] In parallel to the proceedings before the Board, the appellant brought an action in Small Claims Court against the respondents in connection with the alleged assault of March 14, 2018. The appellant obtained judgment against the respondents on October 3, 2018, in the amount of $1,500 for her injuries, plus additional amounts for costs and disbursements.

Procedural history of the appeal

[14] This appeal was originally scheduled to be heard on June 20, 2019.

[15] However, as reflected in this Court's decision reported as Wright v. Maliartchouk, 2019 ONSC 3834, the respondents requested an adjournment as they had just retained a lawyer who had not yet filed responding materials. The appellant consented to the adjournment, and the parties agreed that the appeal would be dealt with by this panel in writing once the respondents filed responding materials and the appellant filed reply materials.

[16] The parties submitted materials in accordance with the schedule set by the Court.

[17] Accordingly, this decision is based on the written materials filed by the parties.

Jurisdiction and standard of review

[18] Section 210(1) of the Residential Tenancies Act permits an appeal to this Court from a decision of the Board, but only on a question of law.

[19] It is well established that the standard of review on a question of law that relates to the Board's interpretation of the Residential Tenancies Act is reasonableness: First Ontario Realty Corporation v. Deng, 2011 ONCA 54, at paras. 16-22.

[20] There is no standard of review on matters of procedural fairness. Rather, the Court is to determine whether the requisite level of procedural fairness was accorded to the appellant.

Issues and analysis

[21] The appellant raises the three following arguments on this appeal:

a. The Board failed to address her claim that the respondent unlawfully entered the apartment and took her possessions before the tenancy was terminated;

b. The Board failed to compel the respondents to testify or failed to draw an adverse inference from the respondents' failure to testify; and

c. The finding that the appellant should have mitigated all of her damages was unreasonable.

[22] In my view, none of these arguments justifies allowing the appeal.

Issue 1: Whether the Board erred in failing to address the respondents' alleged unlawful entry

[23] Ms. Wright argues that the Board failed to consider the issue of whether the respondents unlawfully entered her apartment and removed her possessions before the end of the tenancy.

[24] The Board made a finding that it did not have to address the allegations of unlawful conduct against the respondents because, even if the respondents acted unlawfully, the appellant did not prove that she suffered any damages and, in any event, she took no steps to mitigate her damages.

[25] In my view, the Board did not make an error in finding that it was not necessary to address the issue of whether the respondents' conduct was unlawful. The notice filed with the Board stated that the only damages sought by Ms. Wright were for the value of the items she claims the respondents took from her apartment. At the hearing, the Board member confirmed with Ms. Wright's lawyer that these were in fact the only damages his client was seeking. Therefore, in order to succeed on her application to the Board, the applicant was required to prove that she owned the items she claims were taken, that the respondents removed these items from the apartment, and that she was not able to retrieve them. Absent proof of the damages she was claiming, Ms. Wright could not succeed on her application even if she could prove that the respondents' conduct was unlawful.

[26] Accordingly, having found that Ms. Wright did not prove her damages, the Board did not commit any error in not deciding whether the respondents' conduct was unlawful.

Issue 2: Whether the Board erred in not compelling the respondents to testify at the hearing

[27] Ms. Wright argues that the Board should have allowed her to call the respondent, Natalia Maliartchouk, who she claims unlawfully entered her apartment and took her possessions, as a witness at the hearing. Alternatively, she argues that the Board should have drawn an adverse inference from Ms. Maliartchouk's failure to testify.

[28] After Ms. Wright's evidence was completed at the hearing, the respondents' agent indicated that he did not intend to call his clients as witnesses because Ms. Wright had not proven her case. Ms. Wright's lawyer objected that he wanted an opportunity to question Ms. Maliartchouk. The Board member did not allow him to do so, stating that she would entertain argument from the respondents' agent that Ms. Wright had not proven her case.

[29] In the review order, the Board considered and dismissed the appellant's argument that the respondent should have been compelled to testify:

The Tenant submits that the Member erred in not compelling the Landlord to testify. The Landlord was entitled to choose not to testify, particularly in this case where the Tenant had not made a case for the remedies sought. The onus is on the Tenant to establish the allegations and justify the remedies sought. If the Tenant wished to compel the Landlord to testify she could have requested that the Board issue a summons requiring the Landlord to attend the hearing and testify.

[30] I do not agree with the Board's suggestion that the respondent could not be compelled to testify in the absence of a summons. As a party to the proceeding who was present at the hearing, it would have been open to the Board to require Ms. Maliarchouk to be examined by Ms. Wright's lawyer even if she was not called as a witness by her representative.

[31] However, the Board was entitled to control its own process and to hear arguments on whether Ms. Wright had proven her case. As held by the Board in its review order, given the Board's finding that Ms. Wright had not proven her damages, there was no utility in requiring the respondents to testify. The appellant has not identified any areas of evidence from the respondents that would have affected the outcome of the case, and I cannot identify any such areas given that the outcome of the case was based on the appellant's failure to prove her damages and not on the respondents’ alleged misconduct.

Issue 3: Whether the Board's finding that the appellant failed to mitigate her damages was reasonable

[32] This issue does not raise a matter of law.

[33] The Board's conclusion that the appellant failed to mitigate her damages because she did not retrieve her belongings was a finding of fact. It was based on the appellant’s own evidence that she did not want to go through bags packed up by the respondents to see if she could find the items she claimed were taken.

[34] As indicated above, no appeal lies from a finding of fact.

Costs

[35] The respondents seek their costs of the appeal. However, no costs outline was included in the respondents' materials.

[36] Given the respondents' delay in responding to the application and the respondents’ failure to include a costs outline, I find that this is an appropriate case for awarding no costs.

Conclusion

[37] Accordingly, the appeal is dismissed without costs.

FAVREAU J.

I agree _______________________________

GLITHERO J.

I agree _______________________________

D.L. CORBETT J.

RELEASED: September 17, 2019

CITATION: Wright v. Maliartchouk, 2019 ONSC 5507

DIVISIONAL COURT FILE NO.: DC-18-00001120-0000

LANDLORD AND TENANT COURT FILE NO. HOT-02583-18 DATE: 20190917

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Glithero, D L. Corbett and Favreau JJ.

B E T W E E N :

NZINGA WRIGHT

Appellant

– and –

NATALIA MALIARTCHOUK AND VALERI MALIARTCHOUK

Respondents

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: September 17, 2019

Wright v. Maliartchouk, 2019 ONSC 5507

Case Summary

Introduction

Factual background

Procedural history of the appeal

Jurisdiction and standard of review

Issues and analysis

Issue 1: Whether the Board erred in failing to address the respondents' alleged unlawful entry

Issue 2: Whether the Board erred in not compelling the respondents to testify at the hearing

Issue 3: Whether the Board's finding that the appellant failed to mitigate her damages was reasonable

Costs

Conclusion

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 1