CITATION: Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa, 2022 ONSC 1865
DIVISIONAL COURT FILE NO.: 868/21
DATE: 2022-04-04
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Stewart, Perell and D.L. Edwards JJ.
BETWEEN:
KODA HOLDINGS INC. c/o DOMUS INC. Respondent
– and –
GARETH D’COSTA, DAVID EVANS, GRIFFIN RUSH, HUGH KELLY, CAMERON HANSON and SHANE BULWA Appellants
COUNSEL: Mark Melchers for the Landlord Gareth D’Costa in person David Evans in person Jason Tam for the Landlord and Tenant Board
HEARD at Toronto (by videoconference): March 15, 2022
REASONS FOR JUDGMENT
D.L. EDWARDS J.
Introduction
[1] This is an appeal by Mr. D’Costa from a decision and order of the Landlord and Tenant Board (“Board”), dated October 28, 2021. The order terminated the former tenants’ (David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson, and Shane Bulwas’) tenancy and evicted Gareth D’Costa, whom the Board found to be an unauthorized occupant.
[2] For the reasons that follow, I dismiss the appeal.
Factual background
[3] On February 25, 2020 the Landlord entered into a fixed-term tenancy agreement (“Lease”) with David Evans, Cameron Hanson, Shane Bulwa, Hugh Kelly, and Griffin Rush (the “Former Tenants”), commencing September 1, 2020 and ending on August 27, 2023.
[4] The Lease provided an option to the Former Tenants to terminate it early if they provided written notice within a certain timeframe, which they did.
[5] Pursuant to the early termination of the Lease, all of the Former Tenants vacated on or before the revised termination date of August 27, 2021.
[6] Mr. Evans, one of the Former Tenants, sublet his room to Mr. D’Costa for the last two months of the tenancy. Mr. Evans continued to pay rent directly to the Landlord. The Landlord refused to accept rent from Mr. D’Costa.
[7] The Landlord did not consent to sublet or assign the unit to Mr. D’Costa, nor did it enter into a tenancy agreement with him.
[8] On August 26, 2021, the Landlord filed with the Board an A2 Application about a Sublet or an Assignment. In the Application, the Landlord alleged that the Former Tenants had transferred occupancy to Mr. D’Costa without the Landlord’s consent. The Landlord sought an order terminating the Former Tenants’ tenancy and evicting Mr. D’Costa.
[9] The Board’s hearing was held virtually on October 22, 2021. It was attended by the Landlord’s representative, some of the Former Tenants and, and for a short time, by Mr. D’Costa.
[10] At the beginning of the hearing Mr. D’Costa raised two preliminary issues. First, he asked for an adjournment to give him more time to prepare. The request was denied. Second, he asked to be accommodated under the Human Rights Code,[^1] with a different hearing format. What ensued was a series of exchanges between the Member and Mr. D’Costa.
[11] The situation escalated, and eventually Mr. D’Costa was removed from the hearing. The hearing continued in his absence.
[12] On October 28, 2021 the Board issued its order terminating the Former Tenants’ tenancy, ordering Mr. D’Costa to vacate the unit by November 4, 2021 and ordering Mr. D’Costa to pay the Board $1,000 in costs.
[13] On October 29, 2021 Mr. D’Costa filed a request for a review of the Board order. The request for a review was denied on December 31, 2021.
[14] On November 2, 2021, Mr. D’Costa commenced this appeal. On that date the Divisional Court issued a certificate of stay of the Board’s termination order.
Court’s Jurisdiction
[15] The court has jurisdiction pursuant to s. 210 of the Residential Tenancies Act, 2006,[^2] (the “RTA”), to hear appeals on questions of law.
[16] Under subs. 210(4) and (5) of the RTA, the court may affirm, rescind, amend or replace the Order; remit the matter to the Board with the Divisional Court’s opinion; or make any other order, including with respect to costs, that it considers proper.
Standard of Review
[17] This is a statutory appeal on a question of law only, so the standard of review is correctness.[^3]
[18] On an issue of procedural fairness, the standard of review is whether the appropriate level of procedural fairness was afforded.[^4]
Issues
[19] The issues raised by Mr. D’Costa can be combined into two groups.
[20] First, he asserts that the hearing was not conducted in a procedurally fair manner, and that at the hearing he was denied appropriate accommodation required under the Human Rights Code.
[21] Second, he submits that there were errors of law in the Board’s decision.
The Law
[22] All proceedings before the Board are governed by the Statutory Powers Procedure Act,[^5] (“SPPA”). Section 25.01 empowers the Board to determine its own procedures and practices. When the Board determines the hearing format, it must comply with s.52(2) of the SPPA and ss.2 and 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020.[^6]
[23] The RTA directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter”.
[24] The Board has issued Interpretation Guidelines, one of which provides that “[w]here the member is satisfied that the party has received sufficient notice of the hearing and has been provided with an adequate opportunity to prepare their evidence and submissions, summons witnesses and obtain counsel ahead of the hearing date, an adjournment is not usually granted unless there are exceptional circumstances”.
[25] In Baker v. Canada (Minister of Citizenship and Immigration),[^7] the Supreme Court of Canada at paragraph 87 confirmed that the duty of procedural fairness may apply in a variety of circumstances, but that the content of the duty is not uniform. In determining the content of the duty of procedural fairness, the Court held:
Although the duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected… the purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair an open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision maker.
[26] The duty of procedural fairness includes an obligation to accommodate under the Human Rights Code. That accommodation “must accord the tenant full and fair participation in the process to the point of undue hardship”.[^8]
[27] Accommodation under the Code is a collaborative process, requiring both the Board and the individual requiring accommodation to cooperate to facilitate a search for accommodation.[^9]
[28] The Board sets out in its Rules of Practice (“Rules”) and Interpretation Guidelines the process to be followed where a party seeks an accommodation. Generally, it requires that notice be given as soon as possible to Board staff and that the parties work collaboratively.
[29] Further Interpretation Guideline 17 states:
If, on the day of the hearing, a party believes that they do not have an adequate opportunity to participate in the proceeding and require accommodation, they should bring their concerns to the attention of the presiding Member as soon as possible during the hearing. Depending upon the circumstances, the Member may require the party to provide sufficient evidence to establish that they are covered under section 1 of the Code and need accommodation. The Member must be respectful of the party’s privacy interests and should not require the party to disclose more information than is needed to make the necessary determination respecting the issue of accommodation.
Positions of the Parties
[30] Mr. D’Costa asserts that he was denied procedural fairness when he was denied an adjournment to prepare further for the hearing. He also submits that he was wrongfully denied a human rights related accommodation when he requested a different mode of hearing.
[31] The Landlord asserts that Mr. D’Costa had a meaningful opportunity to participate in the hearing but, because of his conduct, and despite being warned, he was removed from the hearing. Further, there was no error in law or denial of procedural fairness when the Board did not grant Mr. D’Costa’s request for a different mode of hearing because Mr. D’Costa declined to cooperate with the Member to explore possibilities for accommodation.
[32] The Board submitted that the SPPA applies to proceedings before the Board and confirms the Board’s power to control its own process.
[33] Further, in considering a request for an adjournment the Board must take into account the statutory direction provided for in s.183 of the RTA and its Interpretation Guideline 1.
[34] With respect to the second issue, Mr. D’Costa asserts:
a. That the Board erred in law by finding that the prior tenants did not transfer occupancy;
b. That evidence submitted by the landlord was false or misleading;
c. The Board erred in law in not finding that the lease and notice to terminate were void pursuant to ss.37(4) and (5) of the RTA;
d. The Board erred in law in not finding that the covenant purporting to withhold consent of assignments and sublets on the basis of sex and one’s status as a student is unreasonable and discriminatory;
e. That the Board erred in law in its interpretation of ss.100 and 101 of the RTA.
[35] The Landlord asserts that the Lease was a valid lease, and that the parties’ termination agreement was valid.
[36] Further, the Landlord asserts that the Member did not err in his interpretation of ss.100 and 101 of the RTA.
[37] Finally, the Landlord asserts that the Member’s weighing and interpretation of the evidence does not give rise to an error of law. For example, the conclusion that there had not been a transfer of occupancy was not an error in law, but rather a matter of mixed fact and law, and not subject to appeal.
Analysis
Procedural Fairness
[38] The Appellant’s allegation of lack of procedural fairness begins with service of the Application and Notice of the hearing.
[39] The Board is obligated to serve the notice of hearing and the Application upon all parties pursuant to Rule 5.1 of the Rules.
[40] All parties acknowledge that, as there was a spelling error in his name, Mr. D’Costa did not receive this notice. However, the Landlord did serve Mr. D’Costa 9 days prior to the hearing with all of the documents upon which it intended to rely upon at the hearing.
[41] Rule 19 required that all evidence upon which the party intends to rely be served upon the other at least 7 days before the hearing and any responding material must be served at least 5 days before the hearing.
[42] One reason for the service of the Notice and Application is to ensure that parties are aware of the date of the hearing and therefore have the opportunity to attend it. Mr. D’Costa appeared at the hearing and therefore this purpose of the requirement to serve was satisfied. The second consequence of not receiving the original notice of the hearing, being a claim of inadequate notice, feeds into his request for an adjournment.
[43] At the beginning of the hearing Mr. D’Costa requested an adjournment. He asserted that having only received 10 days notice of the hearing, he required more time to prepare.
[44] The Member rejected this request. He stated:
Mr. D’Costa also informed the Board he is a lawyer. As this is an application to remove and (sic) unauthorized occupant who was to vacate the unit nearly two months prior to the hearing and the fact that there was 10 days notice of the hearing, their request is denied.
[45] The decision by the Member to decline the request was an exercise of his discretion and a question of mixed fact and law. This decision itself is not in and of itself subject to appeal to this Court. The question remains whether this decision combined with other factors constitute a lack of procedural fairness.
[46] Mr. D’Costa also asserts that he was denied the rights of a party. Although through error, he did not receive notice of the application, this however, was a harmless oversight as he was named in the documents. Also, he was provided all of the evidence upon which the landlord was relying at the hearing and, had he not been ejected from the hearing, he could have participated fully at the hearing. In these circumstances, there was no meaningful breach of procedural fairness.
[47] Turning to his second complaint, Mr. D’Costa alleges that there was a lack of procedural fairness and natural justice because he was denied accommodation under the Human Rights Code, and improperly removed from the hearing.
[48] Mr. D’Costa submits that he made several requests to Board staff days prior to the hearing for accommodation under the Code, which the Member did not have in his file and that this amounts to an error of law.
[49] The fact that Mr. D’Costa’s prior requests for accommodation were not in the Member’s file is not an error of law. Further, the Interpretation Guideline 17 contemplates situations where the accommodation may be requested at the hearing. Had Mr. D’Costa been less intemperate his request for an accommodation could have been dealt with notwithstanding that it was not in the file before the Board member.
[50] At the hearing Mr. D’Costa advised the Member that he had a “human rights application in”. The Member inquired on what grounds. Mr. D’Costa advised that it was on medical grounds and that he had anxiety. Mr. D’Costa then stated that “once I say I require accommodations, you’re supposed to act on good faith”. The Member responded, “you’re being very contentious, and this is not the way ---appropriate way to behave”.
[51] What followed was a persistent interruption by Mr. D’Costa of what the member was attempting to convey to him. Eventually the Member warned Mr. D’Costa that he may issue costs against him if he continued interrupting. Mr. D’Costa responds: “That doesn’t matter. It’s going to get appealed, sir.”
[52] The Member then tried to move on to other matters and requested that Mr. D’Costa mute himself and stop talking until his matter is reached.
[53] Mr. D’Costa refused to stop talking and the Member indicated that he would take submissions on a cost award against him. Mr. D’Costa’s response was: “Okay, go for it. I’m going to tell you that what you’re doing is illegal and I haven’t had my rights addressed yet. A hundred dollars cost is not going to happen, I’m going to appeal it.”
[54] The Member again attempted to move onto other matters, but Mr. D’Costa continued speaking. He refused to accept the Member’s authority to control the process and refused to stop asking questions.
[55] The Member, clearly frustrated by Mr. D’Costa’s refusal to stop speaking, gradually increased the amount of the cost award against him. Mr. D’Costa continued to question the Member’s response to his request for accommodation. The Member repeated: “That is not what I’m saying. I’m saying I want you to be quiet while I proceed with other matters”.
[56] Finally, the Member warned Mr. D’Costa that if he continued speaking that the Member would dismiss him from these hearings. Mr. D’Costa continued speaking. The Member increased the cost award to $1000 and finally removed him from the proceeding.
[57] The hearing proceeded without Mr. D’Costa, and the Order was ultimately issued.
[58] In the circumstances, the record shows that Mr. D’Costa had the opportunity to fully participate in the hearing, and because of his own conduct, he was ejected. Several times the Member clearly requested that Mr. D’Costa wait his turn, mute himself, and/or stop speaking. The Member stated that the matter was being stood down so that he could deal with other matters, before returning to Mr. D’Costa’s matter.
[59] During oral submissions before us, Mr. D’Costa asserted that he could not hear the Member properly and his conduct was simply one of trying to be understood. The transcript belies that assertion as Mr. D’Costa was quick to respond directly when the Member stated that he was considering making a cost award against him. His responses showed both that he was aware of what was transpiring at the hearing and that he held little respect for the process.
[60] It is important to note that the Member had not yet made any decision about Mr. D’Costa’s request for accommodation. He endeavoured to deal with other matters on his docket first. Mr. D’Costa refused to take the Member’s many directions to stop talking to allow him to deal with other matters before returning to Mr. D’Costa’s matter.
[61] We do not know how the Member would have dealt with the accommodation request because Mr. D’Costa foreclosed that possibility by refusing to take direction from him to wait his turn and stop talking.
[62] In that regard Mr. D’Costa was the author of his own misfortune. There was no lack of procedural fairness or natural justice by the Member ultimately removing Mr. D’Costa from the hearing.
[63] Accordingly, I find that there was no lack of procedural fairness in that proceeding or a failure to accommodate.
Errors of Law
[64] Mr. D’Costa raises a number of matters which he contends amount to errors of law and therefore subject to appeal to this Court.
[65] First, he asserts that the finding by the Board that the Former Tenants did not transfer the occupancy of the rental unit to Mr. D’Costa is an error of law.
[66] In my opinion, however, that determination is one of a mixed finding of fact and law and not appealable to this Court.
[67] Second, he asserts that evidence before the Member was misleading or false. There has been no fresh evidence permitted on this appeal. The weighing of evidence is a process of mixed fact and law. Nothing that is before me satisfies me that what occurred gives rise to an error of law.
[68] Third, the Member found that the tenancy was terminated as of August 27, 2021, but Mr. D’Costa submits that portions of the Lease and the agreement to terminate the Lease early were void.
[69] A provision in the Lease allowed the Former Tenants the option to terminate the Lease early by giving notice by a certain date. That provision does not run afoul of s.37(4) or (5) of the RTA, which voids a tenant’s notice to terminate if given either at the time that the agreement is entered into, or as a condition of the agreement.
[70] Further, this issue was not before the Member. Neither the Former Tenants nor the Landlord made any submission that the termination was void. The Former Tenants and the Landlord were in agreement that the Lease and the agreement to terminate the Lease early were both valid.
[71] The finding by the Member that the tenancy terminated on August 27, 2021 was a finding of mixed law and fact and is not subject to appeal to this Court.
[72] Fourth, Mr. D’Costa asserts that a covenant purporting to withhold consent of assignments and sublets on the basis of sex and one’s status as a student is unreasonable and discriminatory. This issue was also not before the Member, as all parties except for Mr. D’Costa did not contest the Lease’s validity. Further, the Member found that there had been no transfer to Mr. D’Costa. The Member did not rest that conclusion upon any refusal to consent. Rather he found that the transfer did not occur. That is a finding of mixed fact and law and is not subject to appeal to this Court.
[73] Fifth, Mr. D’Costa submits that the Member misinterpreted sections 100 and 101 of the RTA. He asserts that the Member’s statement which follows was an error at law: “Mr. D’Costa is not being evicted. Mr. D’Costa is not a tenant being evicted from the rental unit. The Board will order the Sheriff to provide the Landlord with vacant possession of the rental unit and to remove and (sic) unauthorized occupant”.
[74] Mr. D’Costa points to the wording of s.100 of the RTA which states “where the tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred”.(emphasis added)
[75] To understand the context of the Member’s statement, one must read the prior paragraphs of the decision. The Member points out that Mr. D’Costa is not a tenant. Rather, the Member has found that Mr. D’Costa is an unauthorized occupant. In that sense, the proceeding was not one for an order to evict a tenant. As Mr. D’Costa is not a tenant, the Member is stating that his order is not an order to evict a tenant. The Member is clear that the effect of his order will be the removal of the unauthorized occupant. The Member’s statement that “Mr. D’Costa is not being evicted”, must be read in that context.
[76] In conclusion, I find that there are no errors of law in the Member’s decision.
Disposition
[77] The appeal is dismissed, and the Order dated November 2, 2021 which stayed the Board’s decision is vacated.
[78] The Sheriff shall forthwith enforce the Board’s decisions of October 28, 2021 and December 31, 2021.
Costs
[79] The Board does not seek costs and asks that no costs be awarded against it.
[80] The Former Tenants filed no materials on the appeal, nor did they make any oral submissions at the hearing. It is appropriate that no cost award be made against them.
[81] Mr. D’Costa commenced this appeal and was unsuccessful. It is appropriate that he bear the burden of any cost order.
[82] The Landlord has been successful and is entitled to a cost order. The Landlord has submitted a Cost Outline which does not include any time related to the motion that it withdrew. It seeks costs on a partial indemnity basis of $2,721.83 and on a full indemnity basis of $4,536.38.
[83] I am satisfied that partial indemnity costs are appropriate for this matter and that the sum requested is reasonable. I order that Mr. D’Costa pay to the Landlord within 30 days the sum of $2,720.00 fixed inclusive of HST.
D. L. Edwards, J.
I agree _______________________________
Stewart J.
I agree _______________________________
Perell J.
Released: April 4, 2022
[^1]: R.S.O. 1990, c. H.19. [^2]: S.O. 2006, c. 17. [^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. [^4]: Okoye v. De Melo, 2021 ONSC 6201 (Div. Ct.), at para. 13. [^5]: R.S.O. 1990 c. S.22. [^6]: S.O. 2020, c.5 Sched. 3 [^7]: [1999] S.C.R. 817. [^8]: Beaux Properties Management Co. v. Shomer, 2019 ONSC 6170 (Div. Ct.) at para. 2. [^9]: Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at para 35.