CITATION: Swingler and Yoga v. Shapiro, 2021 ONSC 738

DIVISIONAL COURT FILE NO.: 1233-20

DATE: 20210201

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ALEXANDER SHAPIRO, Landlord/Respondent

AND:

MICHELLE SWINGLER AND GEORGE OBIERO YOGA, Tenants/Appellants

BEFORE: Firestone RSJ, Pattillo and Lederer JJ.

COUNSEL: Miguna Miguna, for the Appellants Stuart O’Connell, for the Respondent

HEARD at Toronto: January 26, 2021 by Video Conference

ENDORSEMENT

[1] On this appeal the Appellant Tenants seek an order setting aside two Orders of the Landlord and Tenant Board.

[2] The first is the Order of Nancy Morris dated February 24, 2020 [TNL-21355-19] which terminated the Appellants’ tenancy for late payment of rent. Application TNL-21354-19 seeking to terminate the tenancy for non-payment of rent was dismissed.

[3] The second is the Interim Order of Egya Sangmuah dated March 9, 2020 [ TNL-21354-19-RV-IN and TNL-21355-19-RV which upheld the termination of the tenancy but remitted the issue of quantum of rent owed at the termination date back to the Board.

Standard of Review

[4] Pursuant to section 210(1) of the Residential Tenancies Act (the “Act”) “[a]ny person affected by an order of the Board may appeal to the Divisional Court within 30 days after being given the order, but only on a question of law.”

[5] The creation of a statutory right of appeal is an indication that appellate standards of review in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.235 are to apply: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.

[6] The Act stipulates that appellate review is limited to a question of law. The proper standard of review is therefore correctness: Housen at para. 8.

[7] No standard of review analysis is necessary for procedural fairness issues. A decision is either procedurally fair or it is not: Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632.

[8] The Appellants submit that the Board erred in law incorrectly interpreting and applying the applicable statute. In addition, they submit that at the hearing, at which time they were self-represented, they were not afforded an opportunity to fairly present their case by filing evidence regarding proof of payments and disability.

[9] The Respondent Landlord argues that the question of whether the Board’s denial of the Appellants’ review hearing is a question of mixed fact and law and the appeal should be dismissed. They argue that the Appellants’ failure to order the transcripts of the January 20, 2020 hearing before member Morris is fatal to the procedural fairness argument and that the absence of transcripts makes it impossible for the Court to consider the merits of this appeal.

[10] The Appellants have raised, in part, procedural fairness issues as the basis for the relief sought. In order for this Court to fairly determine those issues the transcript of the proceedings is necessary.

[11] In the Case Management Endorsement of Favreau J dated November 26, 2020, the Appellants were directed that if they need the transcript for this appeal that they take immediate steps to order it, so it is available for the appeal. At that time the Appellants did not have counsel.

[12] At the commencement of the hearing, counsel for the Appellants advised that he had received the transcript the day before and had sent it to the court. Unfortunately, the panel has not received the transcript.

[13] Given the issues raised in this appeal, the interests of justice require that it be adjourned so that the Appellants can ensure the transcripts of the hearings under appeal which have now been received can be properly filed with the court and uploaded to the drop box. Without a complete record of the proceedings under appeal the court is unable to properly and fairly determine the issues in this appeal.

[14] Pursuant to O. Reg 13/21 filed January 13, 2021 there is currently an Order under the Emergency Management and Civil Protection Act temporarily postponing the enforcement of residential evictions for the duration of the emergency Order. Further, the Appellants continue to pay rent. There is no prejudice that cannot be compensated for by costs as a result of a short adjournment.

[15] Accordingly, we direct that a case conference be arranged before Favreau J, as soon as possible, in order to fix an expedited return date for this appeal. The issue of any costs thrown away as a result of this adjournment will be dealt with at the return date. The return date is peremptory to the Appellants.

Firestone RSJ.

Pattillo J.

Lederer J.

Released: February 1, 2021