Ejidke v. Noel, 2021 ONSC 1629

CITATION: Ejidke v. Noel, 2021 ONSC 1629

DIVISIONAL COURT FILE NO.: DC-19-00000026-0000

DATE: 20210305

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: OBY REGINA EJIDIKE, Appellant

AND:

LESLIE NOEL, Respondent

BEFORE: Heeney, Broad and Favreau JJ.

COUNSEL: Philip U. Okpala and Muhamed Wasiq Khan, for the Appellant

Leslie Noel, the Respondent, representing herself

Eli Fellman, for the Landlord and Tenant Board

HEARD by videoconference: March 4, 2021

ENDORSEMENT

[1] After hearing submissions from the appellant, we dismissed the appeal with reasons to follow. These are the reasons.

[2] The appellant, Oby Regina Ejidike, appeals an order dated January 28, 2019 of the Landlord and Tenant Board requiring her to pay the respondent, Leslie Noel, $1,130.00. Ms. Ejidike claims that she received late notice of the hearing and that she sent a letter to the Board advising that she would not be able to attend the hearing because she had a doctor’s appointment. Ms. Ejidike submits that the Board’s decision was procedurally unfair because she was not given an opportunity to participate in the hearing.

[3] Ms. Ejidike was Ms. Noel’s landlord starting on September 1, 2018. Ms. Noel vacated the unit on October 31, 2018.

[4] Around the time Ms. Noel vacated the unit, she brought an application to the Board to terminate the tenancy and for compensation on the grounds that Ms. Ejidike substantially interfered with her reasonable enjoyment of the unit, and that she failed to maintain the unit in a good state of repair. The Board held a hearing on December 17, 2018. Ms. Noel attended the hearing, but Ms. Ejidike did not attend. In a decision dated January 28, 2019, the Board granted the order terminating the tenancy and granted rent abatement to Ms. Noel in the amount of $1,040.00 plus $90.00 in filing fees, for a total of $1,130.00. At the beginning of its decision the Board noted that Ms. Ejidike had not attended the hearing.

[5] While there is a dispute over when Ms. Ejidike received the notice of hearing, there is no dispute that Ms. Ejidike received the notice of hearing at least by December 13, 2018, which is when she wrote to the Board. In her letter, Ms. Ejidike took the position that she had not properly been served with the notice of hearing because it had been left in an envelope on her doorstep. She also stated that she had a doctor’s appointment booked for December 17, 2018. She concluded as follows:

As I intend to file a Counter Claim to the Tenant’s claim, I would request that I be properly served with all documents relating to this claim and that the Applicant provide me with an Ontario address for service. If the Applicant does not have an Ontario address, then I would be seeking an Order for the Applicant to post a substantial amount as Security for Costs prior to the hearing of this case.

[6] Section 25.1(1) of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, provides that administrative tribunals can make their own rules governing the practice and procedures before the tribunal. This Court has recognized that the Board can control its own processes and that it is entitled to deference on matters involving the exercise of discretion, such as scheduling: Riddell v.Huynh, 2019 ONSC 2620 (Div. Ct.), at para. 43.

[7] Section 7(1) of the Statutory Powers and Procedures Act provides that a tribunal can proceed with a hearing where a party has been notified of the hearing but fails to appear. The Board’s Interpretation Guideline 1 addresses the issue of adjournments. Relying on section 7(1) of the Statutory Powers and Procedures Act, the Guideline provides that, where a respondent fails to appear, “the Member will normally proceed with the hearing and will make a decision based on the evidence adduced at the hearing”. The Board’s Rules and Interpretation Guidelines also state that adjournments will usually only be granted if both parties consent. Where a landlord requests rescheduling, they are directed to deal with the tenant or the tenant’s representative directly to obtain this consent. Absent an agreement to reschedule, the parties are expected to attend the hearing or get an agent to attend the hearing to request an adjournment.

[8] Ms. Ejidike did not ask Ms. Noel whether she would consent to an adjournment. At the hearing before us, relying on her letter of December 13, 2018, Ms. Ejidike took the position that she could not ask Ms. Noel to consent to an adjournment because she did not have an address for Ms. Noel. However, the letter only says that Ms. Ejidike did not have a mailing address for Ms. Noel. It is clear that Ms. Ejidike had a cell phone number for Ms. Noel because the record on the appeal includes text messages between both parties that were exchanged toward the end of the tenancy. In addition, it is also clear that Ms. Ejidike had an email address for Ms. Noel; the email address was included in a document attached to the Notice of Hearing and Ms. Edijike used that email address to serve the notice of appeal to the Divisional Court on Ms. Noel. Accordingly, we do not accept that Ms. Ejidike could not communicate with Ms. Noel to seek consent to an adjournment.

[9] In any event, Ms. Ejidike did not follow the Board's procedures for requesting an adjournment. She did not attend or send someone else to the hearing to request an adjournment. The only step she took was to send a letter to the Board advising of her doctor’s appointment. Her letter did not even explicitly request an adjournment. Rather, she essentially took the position that she would not attend the hearing until she was properly served with the notice of hearing and until she had an opportunity to bring a counter claim and seek security for costs against Ms. Noel.

[10] Ms. Ejidke is not an unsophisticated self-represented litigant. Until recently, she was a lawyer. She had notice of the hearing. Rather than making sure she complied with the Board’s processes for seeking an adjournment, she simply wrote a letter advising that she had a doctor’s appointment and that she did not consider that she had been properly served with the notice of hearing. In so doing, she ignored the warning that was expressly spelled out in the Guidelines that if she failed to appear the “tribunal may proceed with a hearing” in her absence.

[11] The Board followed its own rules and procedures when it proceeded with the hearing in Ms. Ejidike’s absence. We see no error of law nor any breach of procedural fairness in the Board’s decision to proceed with the hearing.

[12] The appeal is dismissed.

[13] Ms. Noel and the Board do not seek costs and, accordingly, we make no order as to costs.

Heeney J.

Broad J.

Favreau J.

Date: March 5, 2021