Court File and Parties
CITATION: Ackie Davidson v. Thiviarupan Nagendiram 2022 ONSC 555
DIVISIONAL COURT FILE NO.: 532/21
DATE: 20220126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Before: McWatt A.C.J.S.C.J. Backhouse J. M. Smith J.
BETWEEN:
ACKIE DAVIDSON Appellant
– and –
THIVIARUPAN NAGENDIRAM Respondent
Counsel: Thomas Dugas, for the Appellant Self Represented
HEARD at Toronto (by videoconference): January 19, 2022
REASONS FOR DECISION
McWatt A.C.J.S.C.J.
[1] This is an appeal of the Decision of Member Greg Joy of the Landlord and Tenant Board dated June 2, 2021 denying the Appellant’s motion to set aside a previous order of the Board, issued April 13, 2021 (the Eviction Order), and lifting the stay of that Eviction Order. The Eviction Order terminated the Appellant’s tenancy and required him to vacate the unit by April 24, 2021. The Appellant seeks to set aside the Decision and have this Court impose a permanent stay of the Board’s Eviction Order on the basis that he was denied procedural fairness and that the Member erred in his application of s. 83(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA).
STANDARD OF REVIEW
[2] There is no standard of review applicable to issues of procedural fairness. The question is whether the requirements of procedural fairness were met.
[3] This appeal is statutorily restricted to questions of law. To the extent that this appeal raises any extricable questions of law, these questions are reviewable on a correctness standard.
DISPOSITION
[4] The Appeal is dismissed for the following reasons, but in summary, the Board did not breach any procedural fairness rights of the Appellant at the May 27, 2021 hearing. Further, the Member made no errors in the findings made on June 2, 2021 when he dismissed the Appellant’s motion to set aside the Eviction Order.
BACKGROUND
[5] The Appellant is a tenant of the Respondent landlord. The Respondent has brought numerous applications to the Board seeking to terminate the Appellant’s tenancy and evict the Appellant based on non-payment of rent, hydro fees and/or persistent late payment of rent. The matter has gone on since 2019 and has had a tortuous history for the landlord. The tenant’s nonpayment and late payment of rent has been a consistent problem throughout.
Payment Order
[6] On March 31, 2021, the Board issued a Payment Order setting out a schedule for the Appellant to pay the Respondent $3,548.00 in rent arrears and requiring the Appellant to pay rent on time. The Board ordered that should the Appellant fail to make any of the payments in full and on time by the dates set out in the Order, “(a) the Respondent would be entitled to apply to the Board, without notice to the Appellant, for an order terminating the tenancy and evicting the Appellant and for any arrears that have become due after the date of this order, pursuant to s. 78 of the RTA; and (b) the entire balance of the amount outstanding shall become due and payable on the day following the date of default.”
[7] The Payment Order required the Appellant to make payments as follows:
- On or before March 5, 2021 the sum of $1,000.00 towards arrears.
- On or before April 1, 2021, $1,370.00 the lawful rent for the month of April 2021.
- On or before April 20, 2021, $1,000.00 towards arrears.
- On or before May 1, 2021, $1,370.00 the lawful rent for the month of May 2021.
- On or before May 20, 2021, $1,000.00 towards arrears.
- On or before June 1, 2021, $1,370.00 the lawful rent for the month of June 2021.
- On or before June 20, 2021, $548.00 the balance of the arrears.
Eviction Order
[8] The Respondent applied for an order to terminate the tenancy and evict the Appellant and for an order requiring the Appellant to pay the rent owing because he had failed to meet a condition specified in the Payment Order. As permitted by the terms of the Payment Order and s. 78 of the RTA, his application was brought without notice to the Appellant.
[9] In an order dated April 13, 2021, the Board ordered the tenancy terminated and ordered the Appellant to vacate the unit on or before April 24, 2021. The Board found the Appellant had not met one of the conditions specified in the Payment Order, specifically, the Appellant did not pay $1,370.00 in rent on or before April 1, 2021.
[10] The Board ordered the Appellant to pay the Respondent -$1,025.65, representing the rent owing up to April 13, 2021, less the rent deposit and interest the Respondent owed on the rent deposit, and to pay the Respondent $46.03 per day in compensation for the use of the unit starting April 14, 2021 to the date the Appellant moved out of the unit.
Motion to Set Aside the Eviction Order
[11] The Appellant moved to set aside the Eviction Order, asserting that he had paid the amounts in question. The motion was heard by videoconference before Member Greg Joy on May 27, 2021. Both parties attended. After the hearing concluded and the Respondent had left the conference, the Appellant remained and told the Board he had receipts to prove that he had paid the amounts the Respondent claimed he had not paid. During that conversation, the Member directed the Appellant to “send copies of his evidence to the Landlord and Tenant Board day of hearing email address by the end of the day of the hearing.” The Board Member found in his June 2 Decision, that as of midday on May 28th the proof of payment email had not been received.
Decision Under Appeal
[12] The tenant was allowed to produce evidence as specified by the Member even after the May 27th hearing should have concluded. The Respondent had left the videoconference and was not given an opportunity to address the Member’s decision to let the Appellant send the email. According to the record before us on this appeal, the tenant did not provide the requested evidence to support that he had paid the outstanding rent. Now, the Appellant claims that he has been highly prejudiced because the Member failed to consider the evidence the Board requested of him. Given the severe consequences of the Member's decision and the resulting effects on him, the Appellant argues that the only remedy is for this Court to set aside the Decision and impose a permanent stay of the Board’s Eviction Order.
[13] In the decision of June 2, 2021, the Board denied the Appellant’s motion to set aside the Eviction Order and lifted the stay of that order. The Board found that the Appellant paid March and April rent late and did not pay the Respondent $1,000 towards arrears as ordered in the Payment Order on either April 20th, 2021 or May 20th, 2021.
[14] The Appellant maintains at this appeal that he did send the evidence requested of him to the Board at 2:19 pm on the day of the hearing.
[15] The Board’s website indicates that parties are to send their evidence to LTB.Evidence@ontario.ca. There is also an email address for the Board at LTB.Hearing@ontario.ca.
[16] A copy of the email sent by the Appellant is filed on this appeal. It is addressed to “LTB.hearings@ontario.ca.” The address has an ‘s’ after “hearing” which the Board’s website address does not.
[17] The Appellant’s email had, attached to it, his receipts indicating a $5,000 payment made on February 20, 2021. It is not clear what this payment is for, but it is clear that the payment was made before the Payment Order of March 31, 2021 (heard March 2, 2021), in which the Board held that the Appellant still owed $3,580.00 in arrears at that point.
[18] The Appellant’s receipts filed on this appeal also do not address the Board’s findings that the Appellant paid March and April 2021 rent late.
[19] The receipts the Appellant maintains he sent on May 27, 2021 set out the following payments to the Respondent:
- February 20, 2021: $5,000
- March 8, 2021: $1,000
- April 1, 2021: $1,000
- April 6, 2021: $370
- April 30, 2021: $1,370
[20] The Appellant’s argument that he has suffered a breach of procedural fairness by the Board fails because his email was not received in the time frame specified by the Member. In fact, the Appellant was given an opportunity to prove that he had paid the arrears in spite of the fact that, in our view, this resulted in unfairness to the Respondent because he had left the videoconference at the end of the hearing after which the Appellant was afforded yet one more opportunity to prove he had paid his rent on time.
[21] We are left with the Member’s findings that there was no proof of payment forwarded to the Board by the Appellant. As such, the Appellant’s claim that the Member erred in his application of s. 83(1) of the RTA also fails and there was nothing for the Member to consider which would have affected the Board’s decision to dismiss his motion.
[22] And even if the Board had received the receipts, those receipts do not address the Board’s findings that the Appellant paid March and April 2021 rent late. The Appellant’s motion would have failed on that basis alone.
[23] After that, this appeal came before the Divisional Court for a hearing on December 14, 2021. The Appellant asked for an adjournment. The Respondent objected to the adjournment. As well as unpaid rent, the Respondent submitted that the Appellant had failed to make hydro payments for quite some time. The Court granted a short adjournment on the following terms: “(1) this appeal is adjourned to the week of January 17, 2022, on a date that week to be set by the court office, which will notify the parties of the date; (2) the appellant shall have no more adjournments; (3) the appellant shall pay any rental arrears and all hydro bills in full by December 20, 2021; (4) the appellant shall serve, and file on CaseLines, all the appeal materials by December 20, 2021.”
[24] The Court also ordered that the Respondent could serve and file any additional materials by January 6, 2022, should he wish to do so, including material about whether the Appellant fulfilled the above terms. The Appellant was told that if the terms for the adjournment were not fulfilled, the appeal may be dismissed.
[25] The Respondent filed a Rent Arrears Record as of January 11, 2022.
[26] Total arrears are $7,135 (Previous $5,765 + January Rent $1,370). The Appellant paid $1,386.44 and did not pay all rental arrears and all hydro bills in full by December 20th, 2021 as ordered on December 14, 2021.
[27] The Respondent also filed evidence that, since the December 14th adjournment, he tried to contact the Appellant regarding property damage the Appellant had caused. The Respondent called the Appellant and texted him on Whatsapp but got no response. After that, the Respondent had an “N5 form” (notifying the Appellant of the damage concerns) issued to which there was no reply and then the Respondent put a letter through the Appellant’s door. The Appellant did not respond.
CONCLUSION AND COSTS
[28] The Appeal is dismissed. The Appellant shall pay $500.00 to the Respondent for costs of some of the Respondent’s missed days of work for the Respondent to attend hearings in this matter.
McWatt A.C.J.S.C.J.
I agree _______________________________
Backhouse J.
I agree _______________________________
M. Smith J.
Released: January 26, 2022
CITATION: Ackie Davidson v. Thiviarupan Nagendiram 2022 ONSC 555
DIVISIONAL COURT FILE NO.: 532/21
DATE: 20220126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ACKIE DAVIDSON Appellant
– and –
THIVIARUPAN NAGENDIRAM Respondent
REASONS FOR Decision
McWatt A.C.J.S.C.J.
Released: January 26, 2022