CITATION: Schram v. Thompson, 2022 ONSC 6922
DIVISIONAL COURT FILE NO.: 137/22
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Stewart and Leiper JJ.
BETWEEN:
JAMES SCHRAM
Nan Padmanathan, for Mr. Schram
Applicant
– and –
JENNITA THOMPSON
David S. Strashin, for Ms. Thompson
Respondent
Valerie Crystal, for the Board
HEARD by videoconference at Toronto:
October 27, 2022
BY THE COURT:
PART I INTRODUCTION
[1] James Schram, the Tenant (Appellant), lived in a basement apartment within the Respondent’s (Landlord) house from 1998 until his eviction in March of 2020.
[2] The Tenant appeals the decision of the Board finding that, because he was lawfully evicted and the unit had been reoccupied by the Landlord’s son, the Board did not have jurisdiction to order his return to the rental unit.
[3] For the following reasons, we conclude that the Board erred in law and was procedurally unfair in its decision. We allow the appeal and order that the Tenant be able to return to the rental unit forthwith and remit back to the Board the question of whether any further remedies ought to be granted to the Tenant in the circumstances of this case.
PART II PROCEDURAL HISTORY BEFORE THE BOARD
[4] In late 2019, the Landlord filed an N12 Notice of Termination before the Landlord and Tenant Board on the basis that her adult disabled son needed to live in the basement unit. In response to the Landlord’s N12 Application, the Board held a hearing on December 6, 2019. The Tenant was not present and did not participate.
[5] On January 24, 2020, the Board granted the Landlord’s request and issued an order terminating the tenancy. The Tenant was evicted pursuant to this order on March 12, 2020.
[6] On March 13, 2020, the Tenant sought a review of the Board’s order terminating his tenancy and authorizing his eviction. On that same day, March 13, 2020, the day after the eviction, the Board issued an interim order staying the Board’s eviction order, and prohibiting the Landlord from re-renting the unit, using the unit, or disposing of the Tenant’s belongings. The Landlord never sought to vacate or vary the Board’s interim stay order.
[7] The Tenant’s request to review was scheduled in May of 2020 but was “paused” due to COVID-19 pandemic restrictions. The Board subsequently granted the Tenant’s review request and convened a fresh hearing on July 21, 2021 in respect to the Landlord’s 2019 application, at which only the Tenant appeared.[^1]
[8] On January 5, 2022, the Board issued a decision finding that the Tenant had not been able to participate at the December 6, 2019 hearing because he had not received notice. The Tenant provided evidence that he relied on the Landlord to provide him with his mail (the unit is a basement apartment in the Landlord’s house). The Tenant had not received notice of the proceedings. The parties were asked to make further written submissions solely on the question of the Tenant’s ability to return to the rental unit. The Landlord sent in a written submission which stated that her son was now using the unit as a “family member” and so the unit was not vacant.
[9] On January 27, 2022, the Board concluded that the Tenant had been lawfully evicted and, since the rental unit was no longer vacant, the Board did not have jurisdiction to return possession of the unit to the Tenant. The Board found that the Landlord had not abused the process of the Board because the Landlord did not know that the Tenant was unable to participate in the December 6, 2019 hearing.
[10] The Tenant appealed to the Divisional Court and sought interim relief. On August 11, 2022, Justice Matheson ordered that the Landlord not re-rent the unit or change its current use and expedited this appeal.
[11] The Tenant has been living in the shelter system since his eviction in March of 2020.
PART III ISSUES ON THE APPEAL
[12] These are the issues on the appeal:
a. Should the Tenant’s fresh evidence be admitted?
b. Did the Board err in finding it did not have jurisdiction to reinstate a tenancy by limiting it to only instances where a rental unit is unoccupied?
c. Did the Board breach the Tenant’s right to procedural fairness by relying on evidence from a prior hearing at which the Tenant had been unable to participate?
d. Did the Board breach the Tenant’s right to procedural fairness by relying on the Landlord’s false unsworn statements?
Since we conclude that (i) the fresh evidence ought to be admitted, (ii) the Board erred in its summary conclusion that it did not have jurisdiction to order reinstatement, and (iii) the Board was procedurally unfair to the Tenant at the hearing to consider remedy, we would set aside the Board’s decision. In terms of remedy in this court, it is clear that the Landlord (i) lied about needing the premises for her adult disabled son, (ii) lied about her son occupying the rental unit at the time of the remedy hearing before the Board, (iii) ousted her subsequent tenant from the unit in the face of his evidence respecting his subsequent tenancy, and (iv) does not claim to have re-rented the unit to a third party without notice of this appeal, there is clear jurisdiction to order the Tenant reinstated to the unit. We would so order. The Tenant may be entitled to additional remedies arising from the Landlord’s abuse of process before the Landlord and Tenant Board, and we would remit that issue back to the Board for decision in accordance with (i) these reasons and (ii) any further evidence that may be adduced before the Board respecting the Tenant’s losses resulting from the Landlord’s abuse of process, and (iii) any further evidence that may be adduced before the Board of mitigating circumstances that the Landlord may provide.
PART IV JURISDICTION AND STANDARD OF REVIEW
[13] This court has jurisdiction over this appeal pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c.17, but “only on a question of law.” For the purposes of jurisdiction, procedural unfairness gives rise to a question of law. The parties agree that the standard of review on appeal is correctness for a question of law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 37; Housen v. Nikolaisen, 2002 SCC 33, at para 8. Issues of procedural fairness are not subject to a standard of review but are measured against several factors and the context in which the decision is made: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817.
PART V – ANALYSIS OF THE ISSUES
Should the Tenant’s fresh evidence be admitted?
[14] The Tenant seeks to adduce fresh evidence in the form of three affidavits, from C.C., Z.M. and E.R.
[15] C.C. is a third party and, in his evidence, he says that he rented the Tenant’s unit after the Landlord evicted the Tenant in March of 2020. C.C. was served notice of this appeal but did not participate.
[16] Z.M. is a caseworker at the Legal Clinic acting for the Tenant. Z.M. attended at the rental unit to serve the Landlord’s son with the Notice of Appeal in these proceedings, based on the Landlord’s statement to the Board that her adult son was occupying the basement unit.
[17] E.R. is an articling student who contacted the Landlord after C.C.’s presence in the rental unit was discovered. E.R.’s affidavit provides information about statements made to E.R. by the Landlord which bear on her statement to the Board about the reason for evicting the Tenant.
[18] The fresh evidence, in summary, is as follows:
• C.C. rented the basement unit from the Landlord from 2020 until May of 2022 and paid $620/month in rent, which was higher rent than the Tenant had been paying;
• C.C. is not related to the Landlord;
• E.R. contacted the Landlord in Jamaica in May of 2022 to advise her that the Tenant intended to introduce evidence that C.C. had been renting the unit since 2020 as part of his appeal;
• The Landlord told E.R. that her son was living in the unit and that C.C. was living there with him, part time, rent free, and that he was a friend of the family and caregiver (part time) for her son;
• When E.R. informed the Landlord that the clinic staff had spoken directly with C.C., the Landlord said “Oh Lord” twice, asked for information on how to contact the court and then abruptly ended the telephone call;
• C.C. confirms that he was not a caregiver for the Landlord’s son and that he paid rent to occupy the unit for himself alone up until he was locked out by the Landlord;
• The Landlord locked out C.C. the day after the telephone call with E.R.
[19] Subsection 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits the admission of fresh evidence on appeal. In accordance with the test in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 SCR 759, appeal courts generally look to four criteria in deciding whether to admit fresh evidence:
a. The evidence should not be admitted if, by due diligence, it could have been adduced at first instance;
b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
c. The evidence must be credible in the sense that it is reasonably capable of belief; and
d. The evidence must be such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result.
[20] The Tenant argues that the affidavit evidence describing the true use of his rental unit could not reasonably have been known to him at the time of his review hearing before the Board. He was given 6 days to respond to the Landlord’s submission that her son was using the unit. This information was directly relevant to the issue of use of the apartment and the veracity of the Landlord’s submission. The evidence is credible, given that it is in the form of uncontroverted affidavits. C.C. is not connected to either party, except by virtue of his renting the rental unit after the Tenant’s eviction, and the events leading to the discovery of his existence are confirmed and described by the affidavit of Z.M.
[21] The affidavits of Z.M. and E.R. are from legal professionals working within a community legal clinic. They provide first-hand accounts of the communications and findings concerning the unit. There has been no cross-examination or other evidence filed that would tend to undermine the reliability or credibility of this evidence.
[22] C.C. is an affected third party, unrelated to the parties. He provided information to Z.M. which was consistent with the observations set out in her affidavit. He was evicted by the Landlord, apparently unlawfully, once E.R. advised the Landlord that his evidence would be tendered on this appeal. He had no reason to misrepresent his status as a tenant when he first spoke with Z.M.
[23] The Board took no position on the request to admit fresh evidence. The Landlord submitted that the fresh evidence is a “collateral attack” on the findings of the Board and should not be admitted.
[24] We conclude that the proposed fresh evidence meets the Palmer test for fresh evidence. The Landlord asserted that her son was living in the unit at the time of the review hearing. The discovery that C.C. was renting the unit came about by happenstance. The question of the use of the unit was central to the issues between the parties concerning remedy, and the description of C.C.’s rental, the conversations between E.R. and the Landlord, and the information provided by Z.M. are credible on this record. The fresh evidence is dispositive of issues critical to a proper remedy in this case. It was not available to the Tenant through the exercise of reasonable diligence at the time of the Board hearing. We admit the fresh evidence on this appeal.
Did the Board err in finding it did not have jurisdiction to reinstate a tenancy where a rental unit is “occupied”?
[25] The Residential Tenancies Act, 2006, S.O. 2006, c. 17, is remedial legislation and it is to be given a “large and liberal interpretation”: Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin, 2020 ONSC 7405 at paras. 58-75. One of its primary purposes is to protect residential tenants from unlawful rent increases and evictions: Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468 (C.A.), leave to appeal refused [2010] S.C.C.A. No. 369.
[26] The Board has broad jurisdiction to review its own orders, including to correct a miscarriage of justice. Section 209(2) of the RTA allows the Board to review an order “if a party to a proceeding was not reasonably able to participate in the proceeding.” That is what the LTB found took place at the first hearing of the Landlord’s application to evict the Tenant. That finding was not challenged on reconsideration or appeal and so has been finally determined. It is not open to the parties, the Board, or this court, to disregard or change this finding.
[27] The Board may terminate a tenancy in accordance with s. 37(1) of the RTA. A landlord may only recover possession of a rental unit where a tenant vacates or abandons the premises or where the Tenant is subject to a Board order terminating the tenancy or evicting the tenant. Where a tenant has been evicted pursuant to a Board order, the Board has jurisdiction to restore a tenant to possession of a rental unit if the Board grants a tenant’s request for review of the eviction order. Where the unit is vacant, the Board has held, and this court has approved, that the Board has the authority to restore possession to a tenant pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to prevent an abuse of its process: TSL-06175-10-RV (Re), 2010 65490 at paras. 1-4 (Ont. LTB); TSL-67800-15-RV (Re), 2016 39858 at paras. 25-30 (Ont. LTB); Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692 at paras. 16-17 (Div. Ct.); Young v. CRC Self-Help, 2020 ONSC 1874 at para. 39 (Div. Ct.); Metropolitan Toronto Housing Authority v. Ahmed, [2001] O.J. No. 1477 at paras 7-10 (Div. Ct.).
[28] In Seguin, this court found that the Board has broad remedial jurisdiction to reinstate a tenant, including by virtue of s. 31(1)(f) of the RTA which permits it to make “any other order that it considers appropriate.”
[29] In seeking written submissions on whether to order reinstatement, the Board reviewed the procedural history of the matter and concluded that:
Logically, where a tenant successfully argues, on a review, that she or he was not reasonably able to participate in the hearing, and the Board’s order has been enforced by the Sheriff but the unit remains vacant, I believe that the Board does have the jurisdiction to order that tenant back into possession, once the review is granted, in order to prevent an abuse of process. This is especially so as, upon a successful review request, the initial order is null, the tenancy between the parties has not been terminated, and the tenant retains the right to possession of the unit by virtue of the tenancy agreement. However, this may not be where a new tenant or, in this case, the Landlord’s son, is in possession of the unit.
Given the above, I find that the Board lacks the jurisdiction to grant the Tenant’s request to return possession of the rental unit to the Tenant since he was lawfully evicted, and the rental unit is no longer vacant. No further submissions were provided by the Tenant to counter the Landlord’s submission with respect to the status of the rental unit. As such, the Tenant’s request must be denied.
(Emphasis added)
[30] The Board’s decision is flawed in multiple ways:
a. it failed to consider the implications of the Board having stayed the eviction order almost immediately after the eviction was carried out and failed to inquire into the date on which the tenant’s son was said to have occupied the unit;
b. it relied on an unsworn written submission from the Landlord that the Landlord’s son was occupying the unit;
c. it failed to require an affidavit from the son (the alleged occupant) as required by s.72(1)(a) of the RTA;
d. it failed to consider whether it had remedial discretion to displace an “occupant” who was not a “tenant”; and
e. it failed to consider whether it had remedial discretion to displace a “tenant” to address an abuse of process in respect to a prior tenant.
[31] It was necessary for the Board to require a proper evidentiary basis for the claim that the Landlord’s son was occupying the unit, including evidence of the date on which he took up that occupancy. Of course, if the Landlord and her son had presented false sworn evidence to the Tribunal in response to such requirements, then the Tribunal’s decision might have been the same. But if sworn evidence had been required, including evidence from the son, this might have given the Landlord pause. That is one of the reasons for the requirement of sworn evidence: the Landlord made a false statement to the LTB. If she had been required to put that statement under oath, it might have given her pause. The Landlord’s son might not have been prepared to provide false testimony. Requiring a proper evidentiary basis, in this case, could have prevented the injustice that took place.
[32] Once the Board had a proper record before it, it was then necessary for the Board to consider its jurisdiction and the proper exercise of its remedial discretion on the basis of the facts before it. In the circumstances of this case, it is not necessary for us to reason through the issues of jurisdiction and exercise of discretion. As we explain below, with the evidentiary record before this court, which was not before the Board, questions of jurisdiction do not arise, and the proper exercise of discretion is straightforward.
Did the Board breach the Tenant’s right to procedural fairness by relying on the Landlord’s false unsworn statements?
[33] The adjudication of residential tenancy disputes requires a level of procedural fairness "at the higher end of the spectrum": Baker v Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), at paras 28, 30, 4547; Shapiro v Swingler, 2021 ONSC 6191 (Div. Ct.), at paras. 39-42. The right to be heard is a “fundamental precept of our system of justice": See, Duncan v. Toronto Community Housing Corp, 2015 ONSC 4728 at para 2.
[34] The RTA, s. 183, provides 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.” Where evidence can affect the outcome of a decision involving a person’s housing, a tenant should be able to test that evidence by cross-examination: Manikam v Toronto Community Housing Corporation, 2019 ONSC 2083 at para 44. Implicit in this principle is that the evidence must be sworn evidence given orally or in an affidavit.
[35] In considering an unsworn, untested statement from the Landlord that her son had moved into the unit and in failing to give the Tenant the ability to cross-examine on that evidence, the Board did not give the Tenant a right to be fully heard. Further, the Landlord’s statement did not establish the date on which her son had begin to occupy the unit – a critical issue in light of the Board’s stay order made immediately following the Tenant’s eviction. The Board evidently missed this point: if the son began to occupy the unit after the Board’s stay order, then the son’s occupancy, itself, was arguably a breach of the Board’s stay order and an abuse of process.
[36] This breach of the requirements of procedural fairness is starker when s.72(1) of the RTA is considered. It provides:
The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,
(a) a notice of termination given under section 48… unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year….
The Act is express that sworn evidence was required from the proposed occupant. Fairness required that sworn evidence be provided by the Landlord. The Board proceeded based on an unsworn statement from the Landlord and nothing from the occupant.
[37] In all the circumstances, we conclude that the Tenant was denied procedural fairness when the Board accepted and relied solely upon the Landlord’s unsworn statement to find that the Landlord’s son was occupying the unit. For this reason alone, the Board’s decision on remedy cannot stand.
Did the Board breach the Tenant’s right to procedural fairness by relying on evidence heard from a prior hearing at which the Tenant had been unable to participate?
[38] The Appellant further argues that the Board in its decision on remedy used evidence from the first hearing to conclude there had been proper notice and a lawful eviction. He submits that the Board referred to the "uncontested evidence" that the Landlord had served the Tenant with notice of termination prior to applying to the Board for his eviction.
[39] The Tenant’s uncontested evidence during the review hearing was that the Landlord had not given him notice of termination, nor had he received any notice of any hearing before the Board. Any evidence that the landlord had done so was from the original hearing – the hearing in which the Board had already determined that the Tenant had not been reasonably able to participate.
[40] We agree that in making findings that relied on contested versions of the adequacy of notice and failing to put the Tenant on notice that it would do so, the Board further failed to provide him with procedural fairness.
PART VI REMEDY
[41] Ordinarily when this court sets aside a Board decision on grounds of procedural unfairness, we remit the case back to the LTB. The issue before the Board was the question of remedy. The Board did not have a proper record before it that would justify its decision on remedy. This court now has a full record. Given that record, it is clear that the Tenant should be restored to his rental unit, and that any further delay in so doing would perpetuate injustice brought about by the Landlord’s dishonesty and abuse of the Landlord Tenant Board process.
[42] In particular, the facts established on the record are as follows:
(i) the Tenant was a residential tenant in a basement apartment owned by the Landlord for roughly 22 years;
(ii) the Landlord applied to the Board to terminate the tenancy on the basis that she required the rental unit for the use of her adult disabled son;
(iii) the Tenant did not receive notice of the Board hearing into the Landlord’s application and was not aware of the Board’s order until he was evicted, without notice, on March 12, 2020;
(iv) the Tenant immediately sought review by the Board and the Board issued a stay order on March 13, 2020;
(v) the Landlord did not seek review or appeal the Board’s stay order;
(vi) the review requested by the Tenant was scheduled in May 2020 but was delayed because of COVID-19;
(vii) the Board eventually concluded that the Tenant had not been able to participate in the hearing of the Landlord’s application, set aside the Board’s original order terminating the tenancy, and directed a fresh hearing on the Landlord’s application;
(viii) the Landlord did not attend the fresh hearing and the Board dismissed the Landlord’s application to terminate the tenancy;
(ix) the Board then directed a further hearing on the issue of remedy, given that the tenancy was not terminated;
(x) the Landlord then advised the Board that the unit was now occupied by her son. This information was false;
(xi) On the basis of the Landlord’s false information, the Board declined to restore the Tenant to the rental unit;
(xii) In fact, the Landlord had re-rented the unit to C.C. in 2020, for higher rent than had been payable by the Tenant, and C.C. continued to occupy the unit as a tenant until May 2022, when he was summarily evicted by the Landlord because his tenancy had been discovered by and was going to be relied upon by the Tenant in this appeal;
(xiii) In this court before Matheson J., the Landlord claimed that her son was occupying the unit as of August 2022;
(xiv) Matheson J. of this court granted an interim order that the Landlord not re-lease the unit nor change its current use pending disposition of this appeal.
[43] On the basis of these facts, the Landlord abused the process of the Landlord Tenant Board to obtain the initial order terminating the tenancy. There is no evidence that the unit was occupied at the time the Board made its stay order on March 13, 2020 and it is likely that the landlord re-leased the unit to C.C. in 2020 in breach of the Board’s stay order.
[44] If a third-party tenant, without notice of these circumstances, was in possession of the unit today, the Tenant could not be restored to the unit without displacing that subsequent tenant. In such a case, issues could arise about the Board’s jurisdiction to oust the subsequent tenant in favour of the original tenant, and the test for exercising such jurisdiction, if it exists. They do not arise in this case. Where an alleged occupant is not a tenant, but is a family-member occupant, and the alleged occupation is either a ruse or a tactic to further a landlord’s abuse of the process of the LTB, the Board has jurisdiction pursuant to SPPA, s. 23(1) and RTA, s. 31(1)(f), to order that the tenant be restored to the unit. That is this case.
[45] The Tenant may be entitled to other remedial orders as a consequence of the Landlord’s abuse of process and the Tenant’s consequent dispossession from his home since March 2020 – a period of more than 2.5 years during which the Tenant says he has had to live in a shelter. We are not positioned to grant additional remedial orders on the record before us, nor does justice require that we do so because of the effect of ongoing delay. We remit this issue back to the Board.
PART VII DISPOSITION AND COSTS
[46] The appeal is allowed and the Board’s decision on remedy is set aside. We order that the Tenant be reinstated to the rental unit and that he be permitted possession forthwith, and in any event by no later than December 13, 2022, 12 noon, to his unit at 144 Cordella Avenue, Toronto. If the Tenant is impeded in re-entry pursuant to this order, he may request an order from this court for immediate police enforcement. We remit to the Board the question of whether the Tenant is entitled to any further remedies as a result of the landlord’s abuse of process.
[47] As agreed by the parties, there shall be no order as to costs.
D.L. Corbett J.
Stewart J.
Leiper J.
Released: December 8, 2022
CITATION: Schram v. Thompson, 2022 ONSC 6922
DIVISIONAL COURT FILE NO.: DC-137/22
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Stewart and Leiper JJ.
BETWEEN:
JAMES SCHRAM
Appellant
– and –
JENNITA THOMPSON
Respondent
REASONS FOR DECISION
Leiper J.
Released: December 8, 2022
[^1]: The issue of the delay between May 2020 and July 2021 is not before us. We would note, however, that this case should have been treated by the Board as urgent once it made its interim order on March 13, 2020. On the basis of that order, the Tenant had been evicted and not restored to his unit and the Landlord was precluded from using the unit. Such an interim order is necessary and appropriate in such circumstances, but having made such an order, the Board should have prioritized this case for disposition and required the parties to proceed with it with dispatch. We appreciate that COVID-19 played havoc with the Board’s scheduling and make this observation, not to criticize what may have happened in this case, but as guidance for future cases.