CITATION: Riddell v. Huynh, 2021 ONSC 4820
DIVISIONAL COURT FILE NO.: DC 57/19
LTB File NO.: CEL-85419-19
DATE: 20210707
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Penny and Conlan JJ.
B E T W E E N:
MATTHEW RIDDELL
Mr Riddell, self-represented
Appellant / Tenant
- and -
NGOC THI CAM HUYNH
Timothy M. Duggan, for the Respondent
Respondent / Landlord
Heard by ZOOM at Toronto:
December 16, 2020
REASONS FOR DECISION
D.L. Corbett j.:
[1] This is an appeal from the decision of the Landlord and Tenant Board ordering the eviction of Mr Riddell on the basis that the Landlord sold the rental unit and the new owner required the unit for his own personal use. For the reasons that follow, I would allow the appeal and remit the case back to the Board for a fresh hearing before a different member or Vice Chair of the Board.
[2] The landlord and tenant relationship between the parties has been fraught for some time.
[3] On October 18, 2017, the Board dismissed an application by the landlord to evict the tenant because the landlord wished the use of the rental unit personally. On August 28, 2018, the Board dismissed a second application brought by the landlord on this basis. In January and February 2019, the tenant threatened the landlord with Board proceedings respecting snow and ice removal issues at the premises. In January 2019, the landlord purported to increase rent and removed use of a parking space from the tenant, leading the Board to order a rent reduction on March 8, 2019.
[4] On April 22, 2019, the landlord purportedly sold the rental unit to her brother, Huu Ty Huynh. On April 25, 2019, the landlord purported to terminate the tenant’s tenancy by serving an N12 Form on the basis that the purchaser, the landlord’s brother, needed the rental unit for his own personal use. On May 1, 2019, the tenant commenced an application at the Board, taking the position that the landlord was attempting once again to end his tenancy for no valid legal reason.
[5] The Board sided with the landlord and concluded that the sale from the landlord to her brother was bona fide and that the brother did need the premises for his own personal use.
Issues on Appeal
[6] The appellant raises four substantive issues on this appeal:
(a) Did the Board misconstrue and misdirect itself on the legal doctrines of issue estoppel and res judicata?
(b) Did the Board deny the tenant procedural fairness and natural justice by curtailing cross-examination and refusing the introduction of relevant evidence?
(c) Did the Board misapprehend the evidence and the law?
(d) Did the Board provide inadequate reasons?
[7] I would not accept the appellant’s arguments respecting issues (a), (c) and (d) for the following reasons:
(a) The principles of issue estoppel and res judicata did not bar the landlord’s claim that she sold the unit to her brother and that her brother required the unit for his own use. The prior “own use” applications were based on different facts and did not preclude the landlord from selling the unit to someone who intends to live in it.
(b) I see no basis to conclude that the Board misconstrued the evidence and the law. The factual issue before the Board was whether the sale from the landlord to the landlord’s brother was genuine and whether the brother truly intends to live there. It was open to the Board to believe the landlord and her brother and thus to accept their position.
(d) The Board’s reasons adequately expressed the applicable principles, the Board’s factual findings, and they enable this court to review the Board’s decision. They are sufficient.
[8] Issue (b) contains two aspects: curtailment of cross-examinations generally, and precluding the appellant from eliciting evidence related to a critical issue before the Board.
[9] In respect to the Board’s “curtailment” of the cross-examination, I find that the appellant was unduly aggressive and would not accept cues and directions from the Board about the reasonable conduct of his cross examinations. The appellant was, frankly, very annoying in his conduct at the hearing, and it is evident from the transcript that the Board found it difficult to keep the appellant within reasonable bounds. The appellant is intelligent, good with words, and legally trained, and it is clear that the Board felt that the appellant was taking unfair advantage of his personal gifts to browbeat the landlord and her brother. The Board has a broad discretion to control its own process so that a fair hearing may be accorded to both sides. It is apparent that this is what the Board was trying to do when it directed the appellant about his cross-examinations and other procedural matters.
[10] In one area, however, the Board erred in law and the error gave rise to substantive unfairness to the tenant. The critical issue before the Board was the bona fides of the purported sale from the landlord to her brother. As a long line of cases before the Board shows, where the sale transaction is to a close family member, this is a warning sign, or flag, that the transaction may not be genuine. In this case, the unit was not exposed to the open market. No real estate agent was involved. It was a private deal. The agreement of purchase and sale was disclosed, but the price of the transaction was redacted. The appellant requested a complete copy of this critical document. This request was denied by the Board and no proper justification was given for denying this request.
[11] This was no “fishing expedition”. The price was one of the critical indicia to consider in determining the bona fides of the transaction. So were payment terms and financial arrangements that were made to meet those payment terms. Although the prior applications to evict the tenant for “personal use” did not give rise to an issue estoppel or res judicata, they did provide context for the dispute. So, too, did the history of conflict, including evidence adduced by the tenant that the landlord had recently tried to impose another illegal rent increase and had threatened to sell the unit if the tenant did not accede to the improper demand for rent. Just days after this, the landlord purported to agree to the sale to her brother.
[12] There were many “alarm bells” that this was another attempt by the landlord to oust the tenant without a proper justification. The tenant was entitled to test the evidence relevant to this issue, and this included full details of the sale transaction. These were proper questions, the Board erred in disallowing them, and this error may have affected the outcome. If the price and the payment arrangements did not reflect reasonable commercial terms, the inference that the transaction was not genuine would have become more and more irresistible.
[13] On my reading the erroneous ruling respecting full disclosure of the terms of the sale transaction followed as an extension of the Board’s efforts to constrain the appellant’s conduct in the hearing within reasonable bounds. The Board’s discretion is broad in respect to the conduct if hearings, but not so broad as to preclude a party from testing critical evidence on a key issue in dispute.
[14] For these reasons I would allow the appeal, set aside the decision below, and remit the issue back to the Board for a fresh hearing before a different member or Vice Chair of the Board.
[15] I would allow Mr Riddell costs of $1,789.76 for his disbursements. I am not satisfied that Mr Riddell lost income because of time he spent representing himself in this appeal and so would not award other costs.
Order
[16] The appeal is allowed, the decision of the Board is set aside, and the case is remitted back to the Board for a fresh hearing before a different Member or Vice-Chair. The respondent shall pay the appellant costs of the appeal fixed at $1,789.76, inclusive, payable within thirty days.
D.L. Corbett J.
I agree:_______________________________
Penny J.
I agree:_______________________________
Conlan J.
Released: July 7, 2021
CITATION: Riddell v. Huynh, 2021 ONSC 4820
DIVISIONAL COURT FILE NO.: DC 57/19
LTB File NO.: CEL-85419-19
DATE: 20210630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Penny and Conlan JJ.
BETWEEN:
Matthew Riddell
Appellant / Tenant
- and –
Ngoc Thi Cam Huynh
Respondent / Landlord
REASONS FOR DECISION
D.L. Corbett J.
Released: July 7, 2021