CITATION: Carr v. Brown; Henry v. Brown, 2022 ONSC 4337

DIVISIONAL COURT FILE NO.: DC-21-771 and DC-21-770

LANDLORD AND TENANT BOARD FILE NO: TNL-27493-20 and TNL-27492-20

DATE: 20220727

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Tzimas, Nishikawa and Davies JJ.

BETWEEN:

Andre Carr

Appellant

– and –

Claude Brown

Respondent

Self-represented

Spencer Toole, for the Respondent

Eli Fellman, for the Landlord and Tenant Board

AND BETWEEN:

Dexter Henry

Appellant

– and –

Claude Brown

Respondent

Amir Abbasi, for the Appellant

Spencer Toole, for the Respondent

Eli Fellman, for the Landlord and Tenant Board

HEARD: April 12, 2022

REAONS FOR DECISION

DAVIES J.

A. Overview

[1] Andre Carr and Dexter Henry live in separate units at 55 Dovehouse Avenue, which is owned by Claude Brown. Mr. Henry lives on the upper level. Mr. Carr lives on the lower level. There are other tenants who live on the middle level of the house. In August 2020, Mr. Brown served Mr. Carr and Mr. Henry with a notice terminating their tenancy because Mr. Brown’s son wanted to move into their units. Mr. Brown did not give notice to the other tenants.

[2] Mr. Brown brought two separate applications to the Landlord and Tenant Board: one to terminate Mr. Carr’s tenancy and the other to terminate Mr. Henry’s tenancy. Mr. Henry and Mr. Carr were both self-represented at the hearing.

[3] The Landlord and Tenant Board issued two separate decisions. In each decision, the Member found Mr. Brown had a genuine intention for his son to occupy Mr. Henry and Mr. Carr’s units. The Member terminated the tenancies of Mr. Carr and Mr. Henry effective August 31, 2021.

[4] Mr. Carr and Mr. Henry each requested a review of the Board’s decision. Their reviews were considered in writing by different Members. Mr. Carr’s request for a review was dismissed on September 2, 2021. Mr. Henry’s was dismissed on September 15, 2021.

[5] Mr. Carr and Mr. Henry now appealed the Board’s decisions to this court. They raise several grounds in relation to the substance of the Board’s decision. They also argue the original hearings were procedurally unfair. We heard the appeals together because they raise the same issues.

[6] The issues raised by Mr. Carr and Mr. Henry about the substance of the Board’s decisions are not questions of law and therefore do not fall within this Court’s jurisdiction. For example, Mr. Carr and Mr. Henry challenged the Board’s finding that Mr. Brown’s son intends to move into their units. They also challenge the Board’s finding that Mr. Brown acted in good faith when he served the eviction notices. Those are factual findings. We do not have jurisdiction to review factual findings made by the Board. We only have jurisdiction to intervene if the Board made an error of law: Residential Tenancies Act, s. 210(1).

[7] Issues of procedural fairness do fall within this Court’s jurisdiction. A failure on the part of the Board to ensure that a hearing is procedurally fair is an error of law: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 22, Tipping v Coseco Insurance Co, 2021 ONSC 5295, at para. 41, 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 at para. 8.

[8] We find that the hearings before the Board were procedurally unfair because Mr. Carr and Mr. Henry were both excluded from the hearing when relevant evidence was heard. We find that their right to be heard was violated and the decisions of the Board must be set aside.

B. Duty of Procedural Fairness

[9] The Landlord and Tenant Board has the power to determine its own process and make orders about the procedure to be followed in each case: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.0.1. However, the process it adopts must comply with the duty of fairness. The scope of the duty of fairness depends on the nature of the decision being made and the process followed. The statutory scheme and the importance of the decision to the individual also inform the content of the duty of fairness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 22- 25.

[10] The right of each party to be heard is a fundamental element of the duty of fairness. Before a party’s rights are determined they must know the basis upon which the decision will be made and have an opportunity to make submissions on the matter: Kipiniak v. K. Dubiel, 2011 ONSC 825at para. 36. The right to be heard is particularly important in the context of the Landlord and Tenant Board because housing decisions can have a profound impact on all aspects of an individual’s life.

[11] The Residential Tenancies Act codifies the right of the parties to be heard. The Act states that the Board must adopt the “most expeditious method of determining” a matter that gives all parties an opportunity to “know the issues and be heard on the matter”: Residential Tenancies Act, s. 183.

[12] For Mr. Carr and Mr. Henry’s common law and statutory right to be heard to be meaningful, the Board was required to ensure that Mr. Carr and Mr. Henry heard all the evidence and understood the legal basis for Mr. Brown’s application to terminate their tenancies. The Board also had to give Mr. Carr and Mr. Henry an opportunity to present evidence and make submissions on why their tenancies should not be terminated.

[13] Mr. Henry and Mr. Carr were given an opportunity to present evidence and make submissions. However, they were not given the opportunity to hear all the evidence presented by Mr. Brown. The Member of the Board conducting their hearings excluded each of them from parts of the hearing. Relevant evidence was given when each of them was excluded. The Member used the evidence heard when they were each excluded as a basis for the decisions to terminate their tenancies. This was a breach of the duty of procedural fairness and an error in law.

C. Proceedings before the Board

[14] The Member hearing Mr. Brown’s applications for the termination of Mr. Carr and Mr. Brown’s tenancies had the jurisdiction to decide whether the landlord’s applications would be heard together or separately. The Member also had the jurisdiction to decide how to conduct the hearing or hearings. However, the process adopted had to be fair.

[15] The Member made several procedural rulings during the hearings, which proceeded virtually. Unfortunately, her rulings were neither consistent nor clear. Initially, the Member ruled that the application related to Mr. Carr’s tenancy would be heard separately from the application related to Mr. Henry’s tenancy.

[16] Before the hearings started the parties were given an opportunity to meet with a mediator. The Member told Mr. Carr and Mr. Henry that if the mediation failed (which it did) their hearings would “proceed independently.”

[17] When the hearings resumed after the failed mediation, the Member said there would be one hearing, not two. Mr. Carr and Mr. Henry were in the same room, using the same computer when the hearings started. Counsel for the landlord objected to Mr. Carr and Mr. Henry being together during the hearing. The Member made the following ruling on landlord’s objection:

The witness or the tenant on the one file should not be listening to the tenant on the other file during separate hearings or even in the same hearing. So we’re going to have one hearing and the landlord’s only going to give their evidence once instead of having to duplicate it and we spend three hours here instead of one.

[18] The Member’s second procedural ruling is not clear. She said there would be only one hearing but then proceeded in a manner that suggests she intended to conduct separate hearings but have the landlord testify once and apply his evidence to both hearings. It was open to the Member to proceed either way if it was done in a manner that was fair to all parties. However, it is not clear whether the Member intended to exclude Mr. Carr and Mr. Henry from the entirety of each other’s hearing or only when the other gave evidence. At first, she said Mr. Carr and Mr. Henry “should not be listening to the tenant on the other file”, which suggests she only intended to exclude them when the other was testifying. However, when Mr. Henry agreed to log on from a different device in his unit, the Member said, “you’re not to be participating in this hearing or listening to the evidence.” This comment suggests the Member intended to exclude Mr. Henry from the whole of Mr. Carr’s hearing.

[19] In fact, the Member conducted two hearings and she excluded Mr. Carr and Mr. Henry from the entirety of the other’s hearing. She then heard closing submissions on both hearings together.

[20] Neither Mr. Carr nor Mr. Henry objected to the Member’s order that they would be excluded from the other’s hearing. But Mr. Carr did say he thought the matters had been “consolidated and amalgamated” because the reason for terminating their tenancies was the same.

[21] Whatever the Member’s intention, fairness required that both Mr. Carr and Mr. Henry be present to hear the landlord’s evidence so they would know the case against them. That did not happen, which is the breach of the duty of procedural fairness. Mr. Henry was absent when the landlord testified at Mr. Carr’s hearing. Mr. Carr was absent when the Member invited the landlord to testify at Mr. Henry’s hearing to clarify several issues.

The Hearings

[22] Mr. Carr’s hearing proceeded first.

[23] During Mr. Carr’s hearing, Mr. Brown testified that he bought 55 Dovehouse Ave. from another family member many years ago. Mr. Brown testified he bought the property with the intention that his children would eventually live there. His son recently moved back to Canada from the United States and wanted to move into the house with his fiancée. Mr. Brown explained that the units occupied by Mr. Henry and Mr. Carr could, with a few minor modifications, be used as a single unit. Mr. Brown testified that he issued a notice to each of the tenants saying he needed their units for his own use so his son could move in. Mr. Henry was not present to hear Mr. Brown’s evidence.

[24] At the end of Mr. Brown’s examination-in-chief – again in Mr. Henry’s absence – the Member made clear her intention to rely on the evidence heard in Mr. Henry’s absence to decide whether to terminate both tenancies. She said, “I’m just going to make a note we’re not going to have the landlord duplicate his evidence with respect to TNL-27492-20, the upper unit of this dwelling.” The upper unit is Mr. Henry’s unit.

[25] Mr. Carr was then given an opportunity to cross-examine Mr. Brown. Mr. Henry was also absent during Mr. Carr’s cross-examination.

[26] Mr. Brown’s son, Brandon, also testified in Mr. Carr’s hearing in Mr. Henry’s absence. Brandon testified that he moved to Toronto from Los Angeles during COVID. He testified he intends to move into the two units at 55 Dovehouse Ave. with his fiancée. Brandon is a musician. He testified that he intends to use the lower unit in the house as a music studio.

[27] Mr. Carr was given an opportunity to cross-examine Brandon.

[28] Mr. Carr then testified. Mr. Carr said he thought Mr. Brown was acting in bad faith. Mr. Carr described several problems he has had with Mr. Brown. He testified that Mr. Brown failed to properly maintain the unit. Mr. Carr also testified that Mr. Brown tried to get them to move out a year earlier, saying he wanted to renovate his unit. Mr. Carr also testified that Mr. Brown threatened him several times. In cross-examination, Mr. Carr acknowledged that he never raised his concerns about Mr. Brown with the Landlord and Tenant Board before. Mr. Carr explained that over the years he raised his concerns with Mr. Brown’s lawyers but had not brought an application to the Board to seek a rent abatement or seek an order requiring Mr. Brown to do maintenance on the unit.

[29] Mr. Brown testified a second time in reply. Mr. Henry was not present for Mr. Brown’s reply evidence. Mr. Brown denied Mr. Carr’s allegations that he did not maintain the property. He also denied he ever threatened Mr. Carr.

[30] After Mr. Brown completed his reply evidence, the Member asked that Mr. Henry join the hearing and asked Mr. Carr to leave.

[31] The Member then conducted the evidentiary portion of Mr. Henry’s hearing.

[32] As soon as Mr. Henry joined the call, the Member asked if he had any questions for the landlord. In effect, the Member asked Mr. Henry to cross-examine Mr. Brown without having heard the examination-in-chief or the cross-examination by Mr. Carr. Mr. Henry asked Mr. Brown questions about whether he owned another rental property. Mr. Henry also suggested to Mr. Brown that he was trying to evict them from the property so he could increase the rent. The questions Mr. Henry asked were largely unrelated to Mr. Brown’s evidence in chief. Counsel for Mr. Brown was given an opportunity to re-examine Mr. Brown after Mr. Henry’s cross-examination.

[33] Mr. Carr was not present for Mr. Henry’s cross-examination of Mr. Brown or the further re-examination.

[34] Brandon Brown was called a second time in Mr. Henry’s hearing and asked to “summarize” the evidence he gave when Mr. Henry was absent. Brandon explained a second time that he moved back to Toronto from LA during COVID and had no place to live. He said he wanted to move into his father’s rental property with his fiancée. He testified he plans to live in the rental property indefinitely. Mr. Henry was given an opportunity to cross-examine Brandon.

[35] While Brandon was testifying the second time (when Mr. Henry was present and Mr. Carr was excluded), the Member realized for the first time there are four rental units at 55 Dovehouse Ave. but the landlord was only seeking to terminate the tenancies for two units.

[36] The Member invited Mr. Brown to testify again to describe the other two units in the property. Mr. Henry was present for this portion of Mr. Brown’s evidence but Mr. Carr was not. Mr. Brown testified the property is a split-level house with one unit of the top level, two units on the middle level and one unit on the lower level. He explained the units on the upper and lower levels – the units occupied by Mr. Henry and Mr. Carr – are connected by a set of stairs and a corridor and could become a single unit with minor alterations.

[37] Mr. Henry testified. He said he thought the landlord was trying to evict him so he could charge more rent for his unit. Mr. Henry testified that two years earlier, Mr. Brown raised his monthly rent by $200. He testified that Mr. Brown had recently asked them to pay $300 more per month in rent or move out. Mr. Henry also testified that Mr. Brown fails to maintain the property.

[38] Mr. Carr was not present during Mr. Henry’s evidence.

[39] At the end of Mr. Henry’s evidence, the Member said she wanted to hear from Mr. Brown again about any other rental properties he owned. In the absence of Mr. Carr, Mr. Brown testified that he and his wife own another single-family dwelling that they use as a rental property. He testified a family had been living in the other property for four years.

[40] The Member was entitled to seek clarification from Mr. Brown on relevant factual issues even after Mr. Henry testified. But the process she adopted was unfair and contributed to the haphazard, confusing nature of the hearing. The Member allowed Mr. Brown’s counsel to ask additional clarifying questions about why Mr. Brown had chosen to evict only Mr. Henry and Mr. Carr and not the other tenants of 55 Dovehouse Ave. Mr. Henry was not given an opportunity to ask any follow-up questions after the Member elicited new information from Mr. Brown. And all of Mr. Brown’s answers were given in the absence of Mr. Carr.

[41] Before Mr. Carr rejoined the hearing, counsel for Mr. Brown started his submissions on why termination orders should be issued. A short time later, Mr. Carr was invited back into the hearing. Counsel for Mr. Brown finished his submissions about the validity of the notices provided to Mr. Carr and Mr. Henry. Mr. Carr and Mr. Henry were each given an opportunity to make final submissions.

The Decisions

[42] The Board’s decisions in the two matters are very similar. Many paragraphs in the two decisions are identical. In both decisions, the Member found “the Landlord in good faith requires possession of the rental unit for the purpose of residential occupation for his son.”

[43] In the decision related to Mr. Carr, the Member fairly summarized the evidence Mr. Carr gave and the arguments he made. In the decision related to Mr. Henry, the Member fairly summarized the evidence Mr. Henry gave and the arguments he made.

[44] The problem is that the Member relied on evidence heard in the absence of Mr. Henry and Mr. Carr in making her findings in each matter. In the reasons in Mr. Henry’s matter, the Member relied on Mr. Brown’s evidence that he had owned the property for several years and that he bought it so his family could use it in the future. Mr. Brown gave that evidence when Mr. Henry was excluded from the hearing. In the reasons on Mr. Carr’s matter, the Member considered the evidence given by Mr. Brown about the layout of the house and about how the upper and lower units could be made into a single unit. Mr. Brown gave that evidence when Mr. Carr was excluded from the hearing. Because both Mr. Henry and Mr. Carr were absent when relevant evidence was given in their respective cases, they did not know the evidence that would be used against them and were unable to cross-examine on or respond to it.

[45] It can be difficult to manage hearings that proceed virtually, especially when one or more party is self-represented. However, the process adopted during a virtual hearing, even if slightly less formal, must still be fair to the parties. By receiving evidence in the absence of Mr. Henry and Mr. Carr and then relying on the evidence heard in their absence in her reasons for ordering their evidence, the Member violated her duty of procedural fairness and denied Mr. Henry and Mr. Carr the right to be heard.

D. Conclusion

[46] While it was open to the Member to decide how these two hearings would proceed, she violated Mr. Henry and Mr. Carr’s right to procedural fairness and the decisions must be set aside.

[47] The appeals are allowed. The matters are remitted back to the Landlord and Tenant Board for new hearings before a different member.

Davies. J.

I agree _______________________________

Tzimas J.

I agree _______________________________

Nishikawa J.

Released: July 27, 2022

CITATION: Carr v. Brown; Henry v. Brown, 2022 ONSC 4337

DIVISIONAL COURT FILE NO.: DC-21-771 and DC-21-770

LANDLORD AND TENANT BOARD FILE NO: TNL-27493-20 and TNL-27492-20

DATE: 20220727

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Tzimas, Nishikawa and Davies JJ.

BETWEEN:

Andre Carr

Appellant

– and –

Claude Brown

Respondent

AND BETWEEN:

Dexter Henry

Appellant

– and –

Claude Brown

Respondent

REASONS FOR DECISION

DAVIES, J.

Released: July 27, 2022