CITATION: Kurdina v. Toronto Community Housing Corporation, 2021 ONSC 544
DIVISIONAL COURT FILE NO.: 223/20
LANDLORD AND TENANT BOARD FILE: TET-95764-18-RV
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, McCarthy and Kristjanson JJ.
BETWEEN:
GALINA KURDINA
Appellant
– and –
TORONTO COMMUNITY HOUSING CORPORATION
Respondent
Galina Kurdina, self-represented,
Doug Letto, for the Respondent
HEARD at Toronto: (by videoconference) January 20, 2021
REASONS FOR JUDGMENT
Swinton J.
[1] The appellant Galina Kurdina appeals a review order of the Landlord and Tenant Board dated March 26, 2020, which refused her request to review a decision of the Board dated December 4, 2019. In the initial decision, the Board dismissed her application alleging that the respondent Toronto Community Housing Corporation failed to meet its obligations with respect to maintenance under s. 20 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) because of its dealings with the bedbug infestation in her apartment building.
[2] The Board rejected the review request, concluding that the appellant was attempting to relitigate her application because she was dissatisfied with the initial decision. The Board member stated that he found no serious error in the decision or the conduct of the proceedings.
[3] In the initial decision, the Board held that there was a bedbug infestation in the appellant’s building in the period under adjudication (between October 4, 2017 and October 4, 2018). However, the Board held that the appellant failed to prove on a balance of probabilities that her unit had been infested.
[4] The Board set out s. 20(1) of the Act, which states that a landlord is responsible to provide and maintain a residential complex in a good state of repair and fit for habitation and comply with health, safety, housing and maintenance standards. The Board member accepted the respondent’s evidence that it had conducted inspections and treatments in the building from February through July of 2018. She observed that the appellant testified that the respondent responded to her complaints and treated her unit, and the respondent worked to deal with an infestation in the apartment next to the appellant’s. The Board concluded that the respondent had responded to the infestation in a timely and effective manner and dismissed the application.
The Motion for Fresh Evidence
[5] An appeal lies to this Court only on a question of law (RTA, s. 210(1)).
[6] The appellant brought a motion to admit fresh evidence just prior to the appeal. She sought to admit eight unsworn documents signed by other tenants in the apartment building stating that no pest control treatments were provided to their units for bedbugs. She also sought to introduce the results of a freedom of information request relating to bedbug treatments carried out by the respondent from 2016 to 2018 in the building. This information was obtained after the initial decision was made.
[7] The motion was dismissed at the hearing, because the appellant failed to satisfy the test for admission of fresh evidence from Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. First, she has failed to show that this evidence was not available with reasonable diligence at the time of the Board’s initial decision. The letters are signed by other tenants in the building about their experience and could have been obtained for the hearing. Similarly, the information about the landlord’s bedbug treatments could have been obtained for the hearing.
[8] Second, the tenant evidence is not reliable, given that it is unsworn and with no details about the signatories of the letters or the circumstances in which the documents were signed. It was not the responsibility of the respondent to investigate the reliability of this evidence, as the appellant suggests.
[9] Third, this evidence is not relevant to the issues on this appeal. With this evidence, the appellant seeks to challenge findings of fact made by the Board. However, an appeal lies to this Court only on a question of law. None of this evidence can assist this Court in determining whether there has been an error of law in the initial decision.
The Merits of the Appeal
[10] With respect to the appeal of the March 2020 review decision, the appellant has failed to identify any error of law.
[11] However, it is clearly the initial decision that she wishes to challenge, as that decision was the focus of her arguments. Again, she has identified no error in law in that decision.
[12] First, the appellant has not identified any error of law in the Board’s interpretation of s. 20 of the RTA or in the statement of the applicable legal test.
[13] Second, the Board held that she had not proved her allegations against the respondent, a conclusion that was available to it on the evidentiary record. The Board accepted the evidence of the respondent’s witness, as it was entitled to do, with respect to the steps the respondent had taken to deal with the bedbug infestation. The fact that there might have been an error in the Board’s finding that all units were treated (rather than those found to be infested) is not an error in law, nor is it a palpable and overriding error of fact. The Board’s decision about the credibility of Ms. Lanteigne, the respondent’s witness, discloses no error of law.
[14] Third, the appellant also alleges bias and denial of procedural fairness at the hearing. I have read the transcript of the hearing and see no evidence that the appellant was treated unfairly by the Board. At times, the Board prevented her from interrupting the examination in chief of the respondent’s witness. This was proper conduct by the Board member in the interests of managing an orderly hearing. I also note that the appellant never informed the Board that she was having any difficulty hearing the witness.
[15] Finally, the appellant has failed to meet the test to show bias or a reasonable apprehension of bias. The fact that the Board did not find in her favour does not give rise to a reasonable apprehension of bias.
Conclusion
[16] Accordingly, the appeal is dismissed, as the appellant has failed to show any error of law in either of the Board’s decisions. Costs to the respondent are fixed at $500.00.
Swinton J.
I agree _______________________________
McCarthy J.
I agree _______________________________
Kristjanson J.
Released: January 22, 2021
CITATION: Kurdina v. Toronto Community Housing Corporation, 2021 ONSC 544
DIVISIONAL COURT FILE NO.: 223/20
LANDLORD AND TENANT BOARD FILE: TET-95764-18-RV
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, McCarthy and Kristjanson JJ.
BETWEEN:
GALINA KURDINA
Appellant
– and –
TORONTO COMMUNITY HOUSING CORPORATION
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: January 22, 2021