Court File and Parties

CITATION: Lacroix v. Central-McKinlay International Ltd., 2022 ONSC 2807

DIVISIONAL COURT FILE NO.: DV-2018-19 (Thunder Bay)

DATE: 2022-05-11

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: RAYMOND LACROIX, Appellant AND: CENTRAL-MCKINLAY INTERNATIONAL LTD., Respondent

BEFORE: D.L. Corbett, Perell and Sheard JJ.

COUNSEL: Robert MacRae, for the Appellant Tim J. Harmer, for the Respondent

HEARD: February 16, 2022, at Toronto, by videoconference

REASONS FOR DECISION

The Court:

[1] The appellant appeals the decision of the Landlord and Tenant Board granting the landlord an eviction order for the purposes of demolition.

[2] The respondent, at the start of its factum, states that "[t]he appeal discloses no question of law, is fundamentally without merit, and is an abuse of process brought solely to delay the tenant eviction." We agree. For the reasons that follow, the appeal is dismissed.

Facts

[3] The landlord seeks to demolish the premises and obtained a permit to do so from the City of Sault Ste. Marie on April 25, 2019. The landlord had previously served an eviction notice on the tenant, on December 22, 2018, with a termination date of April 30, 2019. The tenant failed to comply with the notice, and so the landlord commenced proceedings before the LTB for an eviction order.

[4] The matter came on for hearing before the LTB on July 13, 2019. The landlord and its witnesses were present. The tenant was present with a witness. The tenant's lawyer was also present prior to the start of the hearing, and he presented an offer to the respondent to purchase the property. The tenant's lawyer did not stay for the hearing, and the tenant self-represented at the hearing. No request for an adjournment was made prior to or at the hearing.

[5] The issue at the hearing was whether the landlord intended, in good faith, to demolish the building. The LTB found, as a matter of fact, that the landlord did intend in good faith to demolish the building. The LTB ordered the tenant to vacate the unit as of August 31, 2019, failing which the landlord could file the order with the Sheriff for eviction.

[6] The tenant filed a request to review on the basis that his lawyer was "unable" to attend the hearing on July 13, 2019.

[7] On, the review, the LTB found that the tenant did not request an adjournment. Further, it is apparent from the original decision of the LTB that the tenant participated in the hearing. No errors were identified in the original LTB order. The reconsideration request was denied on its merits.

[8] On August 30, 2019, the tenant commenced this appeal, alleging that the LTB erred in proceeding with the hearing in the absence of counsel for the tenant. No other ground of appeal was pursued at the hearing of this appeal.

Jurisdiction and Standard of Review

[9] This court has jurisdiction over this appeal by virtue of s.210 of the Residential Tenancies Act, 2006, SO 2006, c.17, which provides for an appeal to this court from an LTB order solely on a question of law. Procedural unfairness is considered a question of law for the purposes of s.210.

[10] The standard of review for questions of procedural fairness is "fairness", sometimes understood as "correctness". The court determines whether fairness has been accorded to the appellant based on the events as they unfolded, basic principles of fairness as developed in the jurisprudence, and the tribunal's own rules and procedures: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817; Peel Housing Cooperative o/a Peel Living v. Sharpe, 2017 ONSC 6303, per F.B. Fitzpatrick J. (Div. Ct.).

Fresh Evidence

[11] The tenant seeks to adduce as fresh evidence an affidavit setting out his internal thought processes at the hearing. We would not admit this fresh evidence for three reasons:

(a) the proposed fresh evidence does not shed light on events at the hearing in a manner bearing on procedural fairness.

(b) the tenant's internal thought processes are not relevant to an issue before this court. Procedural fairness is assessed on an objective standard. The subjective state of mind of the appellant would matter only in this analysis if there was evidence that he was incapable of participating in the hearing (by reason of factors such as (without limitation) illness, disability or language barrier). Even in these circumstances, it is incumbent on a party to raise the issue with the tribunal, or for there to be a basis on which the claim of incapability is grounded objectively in events at the hearing.

(c) to be admitted, the proposed fresh evidence must be potentially conclusive on an issue on appeal: Krizans v. Skurdelis, 2020 ONSC 4386 (Div. Ct.); Palmer v. The Queen, 1979 8 (SCC), [1980] 1 SCR 759. In the immediate case, the proposed evidence is far-fetched and self-serving and is not corroborated by evidence from the appellant's former lawyer attesting to his unavailability for the hearing, even though he had been present until shortly before it began. The proposed evidence is vague and unparticularized (it does not even provide the name of the lawyer who allegedly agreed to represent the tenant at the hearing and then cancelled his participation the night before the hearing). But even if this evidence was accepted at face value, it could not affect the appeal because there is no evidence that an adjournment was sought by the appellant, or anything took place at the hearing that should have given rise to concerns that the appellant was unable to participate effectively in the hearing.

[12] The respondent also notes that the proposed fresh evidence has been tendered late in the appeal process, is not in proper form (the affidavit was not sworn prior to the hearing of the appeal), and that no motion was been brought to adduce the fresh evidence – it was filed without an order or a motion. If justice required it, the court could consider a request for fresh evidence, despite these procedural irregularities. Since the proposed fresh evidence is not admissible in any event, we decline to exercise our discretion to overlook these irregularities and also refuse to admit the evidence on these procedural grounds.

[13] This appeal has been delayed far too long as it is, and it would not be fair to the respondent to permit the appellant to move to admit this evidence so late in the process: a further adjournment to permit the respondent to adduce responding evidence, or to cross examine on the proposed fresh evidence, would result in overall delay amounting to prejudice to the respondent.

Analysis

[14] Parties are entitled to be represented by counsel before the LTB. However, they are not required to be represented by counsel, and a great many parties before the LTB are self-represented. The tenant did not request an adjournment of the hearing. There is no evidence that the tenant raised his lawyer's non-participation in the hearing with the LTB.

[15] In argument, counsel for the tenant submitted that the LTB had a duty to inquire into whether the tenant wished to be represented by counsel. He also argued that counsel for the respondent had a duty to raise this issue. We do not accept these submissions. In a tribunal where many parties are self-represented, and cases are often fact-driven (as was the case here), there is no obligation on the LTB to make such an inquiry.

[16] Further, it was the tenant's obligation to attend the hearing ready to proceed. If the tenant had requested an adjournment, he would have had to provide the LTB with an explanation – particularly where the lawyer had attended at the LTB to present an offer to buy the property but had then left.

[17] Further still, the LTB generally requires that requests for an adjournment be made in advance of the hearing and not on the day of the hearing. No explanation has been provided as to why the lawyer was suddenly unavailable at the last minute, or, if his unavailability arose at the last minute, how this could have been so given his presence at the LTB prior to the hearing.

[18] Although these points do not undercut the obligation the LTB has to be satisfied that parties are able to participate appropriately in a hearing, this issue does not arise in this case. Nothing in the record suggests that the appellant was unable to participate in the hearing appropriately. On appeal, counsel for the appellant did not identify any aspect of the hearing that suggested that the tenant was unable to participate appropriately, to give his evidence, to challenge the evidence of the landlord, and to make his arguments.

[19] This conclusion is buttressed by the record before this court. There is nothing in it that casts doubt on the factual finding underpinning the LTB's order. An assertion that experienced counsel could have sewed doubt in the mind of the Tribunal as to the landlord's good faith intentions is, at best, fanciful.

[20] The tenant points to the LTB finding that certain facts were agreed at the hearing as a failure in the process below: he argues that there is no basis in the record establishing this "agreement". The agreed facts are not challenged before us: they are in respect to background facts:

(a) that notice of termination was timely and in compliance with the RTA.

(b) that the landlord obtained the necessary demolition permits.

(c) that compensation for termination is not payable because there are less than five rental units at the premises (RTA, s.52(b)).

[21] The LTB stated in its reasons that these facts were agreed. Such an agreement may be conveyed to the LTB orally at the hearing. The purpose of such an agreement is to focus the hearing on truly contested issues. There is no basis in the record to suppose that (a) any of these facts was not true, (b) conceding these facts was unreasonable; (c) the agreed facts were not, in fact, agreed at the hearing. These are precisely the sorts of issues that should be conceded if there is no legitimate issue in respect to them, as was the case here.

[22] We see no procedural unfairness and no failure of justice in the substantive result. The case turned on questions of fact in respect to which there is no appeal available.

Order and Costs

[23] We understand that the tenant is upset that he must move. He has lived at the premises for about forty-five years. It has been his home. However, the property belongs to the landlord, and the landlord wishes to make other uses of it. This the law permits the landlord to do, and the LTB made no error in so finding. The appeal is dismissed, with costs payable by the tenant to the landlord fixed a $8,467.50, inclusive, payable within thirty days.

[24] The tenant has brought a meritless appeal and has failed to show diligence in pursuing it. Each delay was said to be justified by exigent circumstances, but the overall pattern leads to an ineluctable inference of intentional delay. In all the circumstances, the Sheriff is directed to enforce the eviction order of the LTB on June 1, 2022, or as soon after that date as is reasonably practicable.

"D.L. Corbett J."

"Perell J."

"Sheard J."

Released: May 11, 2022