CITATION: Krishna v. Alexandra Park Co-operative, 2022 ONSC 92
DIVISIONAL COURT FILE NO.: DC-21-386
DATE: 20220107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, MATHESON & SHEARD JJ.
BETWEEN:
SAMMY KRISHNA
Appellant
– and –
ALEXANDRA PARK CO-OPERATIVE
Respondent
Joseph Cary, for the Appellant
Kent Elson and Amanda Montgomery, for the Respondent
Brian A. Blumenthal and Katia Snukal, for the Landlord Tenant Board
HEARD at Toronto: December 16, 2021 (by videoconference)
REASONS FOR DECISION
[1] This is an appeal from the decision of Member Laing of the Landlord and Tenant Board dated February 17, 2021, as confirmed on review by an order of Member Sullivan dated April 1, 2021, ordering the eviction of the appellant from the Alexandra Park Co-Operative.
[2] Mr. Krishna submits that the eviction order should be set aside because of procedural unfairness and a failure to accommodate his disability as required by the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).
[3] For the reasons set out below, the appeal is dismissed.
Background
[4] The appellant has lived in the Alexandra Park Co-Operative (the “Co-op”) for 48 years. He has back pain and mobility issues necessitating the use of a cane or stroller or walker. He receives social assistance for people with disabilities.
[5] In June 2020, the Co-op applied to the LTB for an order evicting the appellant under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). The grounds for eviction included conduct that substantially interfered with the reasonable enjoyment of the residential complex, illegal acts, and safety issues.
[6] At this time, the LTB had suspended all hearings regarding evictions due to the COVID-19 pandemic. Hearings were proceeding only if the matter related to an urgent issue such as an illegal act or serious impairment of safety.
[7] By interim order dated June 18, 2020, the LTB granted the respondent’s request for an urgent hearing because of the serious allegations made by the respondent.
[8] Due to restrictions resulting from the COVID-19 pandemic, the LTB had moved to remote hearings. The hearing was therefore scheduled to proceed by telephone conference.
[9] The hearing proceeded on July 7, 2020. At that time, the appellant’s counsel submitted that the respondent’s notices were invalid. This objection did not succeed. The appellant’s counsel also requested an adjournment to allow him time to review the respondent’s disclosure and prepare with the appellant. The adjournment was granted.
[10] The respondent ultimately withdrew some of the allegations in the notices. The hearing began on July 28, 2020, with the respondent’s evidence. The appellant’s evidence was not reached that day. The hearing was adjourned again.
[11] The parties were then sent a notice of adjourned hearing, giving September 18, 2020 for the resumption of the hearing by videoconference. That notice invited the parties to email the LTB if they believed that the holding of the hearing by video would cause significant prejudice. The notice indicated that if the LTB found that there would be significant prejudice, the video hearing could be rescheduled as a different type of hearing.
[12] The appellant did not respond to say that having a video hearing would cause him prejudice.
[13] The hearing resumed on September 18, 2020. The appellant’s counsel participated by videoconference and the appellant participated by telephone. The appellant’s evidence was heard on that date.
[14] The hearing concluded on September 18, 2020. Over the course of the entire hearing, Member Lang heard evidence from eleven witnesses, including the appellant.
[15] By order dated February 17, 2021, the LTB granted the respondent’s application. Member Lang dismissed some of the allegations but found that the appellant had committed an illegal act by intentionally stealing the respondent’s master keys from the security guard’s desk. Member Lang made other findings of fact, including that the appellant had made racist comments, showed a blatant disregard for his neighbours and that his treatment of other residents was toxic.
[16] There was no issue that the appellant took the master keys. He testified that he thought they were his. The evidence about the theft of the master keys included a short video clip (which did not have sound) from the security camera in the area of the security guard’s desk. The appellant and his lawyer were provided with that video clip well in advance of the hearing and were notified that the respondent was going to rely on it at the hearing. Member Lang found, based on all the evidence but especially the video clip, that the appellant intentionally stole the master keys.
[17] Member Lang considered all the circumstances, including considerable evidence about the appellant’s disruptive behaviour, to determine whether to grant relief from eviction. Member Lang expressly considered the appellant’s disability. As a result of his disability, she decided to postpone the eviction for two months, ordering vacant possession by April 16, 2021.
[18] The appellant sought a review of the decision.
[19] On April 1, 2021, the LTB released its review decision, confirming Member Lang’s decision. Member Sullivan found that the request did not support the conclusion that there might be a serious error in the order or in the proceedings.
[20] This appeal was then commenced.
Issues
[21] Under s. 210(1) of the RTA, this appeal may only raise questions of law, which include issues of procedural fairness.
[22] For questions of law, the standard of review is correctness. For procedural fairness issues, there is no standard of review. The question is whether or not the requirements for procedural fairness were met.
[23] The appellant raises the following issues on this appeal:
(i) whether it was fair to hold an expedited hearing on the basis of allegations that were subsequently withdrawn;
(ii) whether it was fair to view the video from the security camera at the hearing when the appellant was unable to view it with the adjudicator in the course of the hearing;
(iii) whether it was fair to make findings against the appellant for conduct that was not specifically mentioned in the notices; and,
(iv) whether the tribunal failed to accommodate the appellant’s disability.
Analysis
(i) Expedited hearing
[24] As set out above, at the time of the order for an expedited hearing, LTB eviction hearings were proceeding only if the matter related to an urgent issue such as an illegal act or serious impairment of safety.
[25] There is no doubt that the grounds set out in the respondent’s notices included conduct that would fall within the above circumstances, justifying an urgent hearing. The appellant’s issue is that some of those grounds were withdrawn at a later stage. The appellant submits that the respondent obtained the urgent date under “suspect” circumstances.
[26] This issue was raised before the LTB. Member Lang noted that the above scheduling decision was not a determination of the merits of the application. On review, Member Sullivan agreed and noted that the appellant had not shown a serious error in the scheduling of the hearing as an urgent matter.
[27] While some of the allegations were withdrawn, those that were pursued still included serious allegations about safety and illegality. The allegations pursued at the hearing included forcible confinement, trespass, and theft, among other issues. The appellant has not shown that the respondent’s conduct in obtaining the urgent date was suspect.
[28] Further, the appellant was granted an adjournment of the urgent hearing date, to prepare, and as matters unfolded there was a second adjournment as well. The appellant’s evidence was heard almost four months after the initial eviction notice.
[29] The appellant has not demonstrated procedural unfairness regarding the scheduling of the hearing.
(ii) Form of hearing and use of video clip
[30] The appellant submits that the hearing should not have been conducted by telephone conference call on the first two dates but does not point to a specific unfairness arising because of the form of those hearing days. The focus of the objection before us is on the use of the video clip from the security camera on the third hearing day.
[31] The third hearing day was scheduled to be heard by videoconference. The appellant submits that he had previously had difficulty participating by telephone but does not provide an adequate explanation for why he did not take steps to attend the third day by video conference. He did not have the technology himself but did not show any efforts to access it. In advance of the hearing date he was invited to say if the form of hearing was prejudicial to him and did not do so. No accommodation was sought. His counsel did participate by videoconference.
[32] The appellant’s counsel now submits that the appellant was forced to have a remote hearing. That is not so. The August LTB notice of videoconference left open the possibility of another form of hearing. The appellant did not pursue that option.
[33] With respect to the use of the video clip, the appellant and his counsel had ample time to review it, with at least seven weeks notice that the video clip would be relied on at the hearing. The appellant’s counsel obtained an adjournment for the specific purpose of having time to review the disclosure and discuss it with his client. The appellant now raises pandemic restrictions as an impediment, but he did not come forward on the return date, through his counsel, and say that he had been unable to prepare with counsel.
[34] On the September hearing day, Member Lang viewed the video showing the appellant take the master keys. Due to the form of hearing, the video was not viewed by the participants at the same time. The Member viewed it, also described what she saw, and, although the appellant suggests that there was an inconsistency between the video and her description, none has been shown. She also gave a description of the video clip in her reasons for decision. No error has been alleged in that description.
[35] The appellant now submits that he did not have the technical ability to view the video in the course of the hearing. Again, the record does not show that the appellant made efforts to participate in the hearing in a different way if he wished, or needed, to do so. Accepting his submission that he is of modest means, that does not necessarily preclude access to videoconference technology. His lawyer was able to participate by video conference. A request for accommodation could have been made to the LTB.
[36] The appellant further submits that the Member “cross-examined” him about the video. However, the record shows that the Member was giving him an opportunity to explain the differences between his account of what happened and the video. She asked: “Can you help me reconcile your testimony with the, the video and the circumstances?” The appellant gave a lengthy factual answer, toward the end of which he said he had not seen the video “exactly” yet and went on to complete his answer. His counsel did not object or request steps to permit the appellant to view the video clip before answering.
[37] The appellant suggests that there was an objection to this use of the video, but the objection relied upon related to a different video. Unlike the video clip about the master keys, appellant’s counsel indicated that he had not been given advance notice that the other video would be relied upon. In the course of that objection, he confirmed that the appellant had notice about the video clip regarding the master keys, distinguishing it from the video that was the subject of the objection.
[38] Relying on Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67, [`893] 1 WLUK 44 (H.L.), the appellant submits that any evidence used to discredit him should have been shown to him while he was testifying so he had the opportunity to explain. Here, the video was not “shown” to him at the same time. However, it was disclosed, express notice was given that it would be relied on, it was put into evidence, and the adjudicator described it. The appellant was represented by counsel. The appellant had ample opportunity to review it in advance in order to prepare for his testimony, and no break was requested so that arrangements could be made for him to review it in order to answer the Member’s question.
[39] The appellant further submits that the Member misdescribed the video as she viewed it. This has not been established.
[40] The appellant also relies on the Ontario Bar Association guide to “Best Practices for Remote Hearings” dated May 28, 2021. That guide, which post-dates the events in this matter, indicates that ideally remote hearings are conducted by video and if a party cannot participate by video, by teleconference. It goes on to say that if the parties are satisfied that no unfairness will result, the hearing may proceed with one or more parties on the telephone and others using video. Although this more recent guidance was not available at the time, it is consistent with the LTB process. The LTB notice of the video hearing specifically invited participants to notify the LTB if a video hearing would cause significant prejudice, and the appellant did not do so.
[41] In the particular circumstances of this matter, there was no procedural unfairness in the use of the video clip regarding the master keys in the hearing.
(iii) Findings on other matters
[42] The appellant submits that prejudicial evidence that was not within the grounds for eviction was wrongly relied upon by the LTB. The appellant specifically refers to testimony from a security guard that the appellant had told him that he was from Africa and should go back where he came from.
[43] The notices did include the appellant’s altercation with the security guard as a ground. In addition, one of the notices specifically noted racist insults as a ground, along with many other particulars of disruptive conduct. The appellant relies on Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.) for this position. However, that case arose in a different context since the landlord had given little or no details in the notices.
[44] Here, there was extensive evidence about the appellant’s behaviour, beyond the remarks he now focuses on. Member Lang relied on all the evidence regarding the allegations of disturbing conduct. Other members of the Co-op gave evidence, one of whom testified that the appellant told her that white people do not like her (she is a person of colour) and made several other highly offensive statements as well. In response to her evidence, the appellant testified that he would never utter racial slurs. Member Lang weighed all the evidence, finding that the appellant did make the offensive remarks.
[45] Member Lang also weighed all of the evidence about the alleged remarks made to the security guard. She considered the absence of an express denial, along with the other evidence. The appellant had ample opportunity to respond to the evidence. There were about seven weeks between the Co-op’s witnesses and the appellant’s testimony.
[46] The appellant has not demonstrated a breach of procedural fairness regarding notice.
(iv) Accommodation of disability
[47] The appellant submits that because of his disability, other approaches short of eviction should have been ordered. He submits that the LTB member erred in failing to consider whether conditions could be imposed that would allow the appellant to continue to live in the Co-op.
[48] There is no question that the LTB is obligated to accommodate a party with disability related needs, as set out in the Code. Further, there is no issue that the appellant is disabled within the meaning of the Code.
[49] The appellant relies on Walmer Developments v. Wolch, 2003 42163 (ON SCDC), [2003] O.J. No. 3435 (Div. Ct.). In that case, the tenant’s disability was the cause of the problems giving rise to the landlord’s notice to terminate. She suffered from schizophrenia and, when she did not take her medication, she caused problems. This court determined that the LTB ought to have, and did not, find that her disability could be accommodated. Through accommodation steps, the problems could be addressed before they escalated.
[50] The appellant’s situation is different. Here, the appellant’s disability did not cause the conduct that gave rise to the grounds for eviction. Further, Member Lang specifically considered the appellant’s disability in reaching her decision about eviction. Member Lang also considered the other evidence before her. In the circumstances before her, Member Lang decided to accommodate the appellant’s disability by delaying the eviction for two months.
[51] The appellant has shown no failure to accommodate or other error of law in the LTB decisions challenged on this appeal.
Orders
[52] This appeal is dismissed, and the stay of the eviction order is terminated.
[53] Neither the respondent nor the LTB seek costs against the appellant. There therefore shall be no order as to costs.
Justice W. Matheson
I agree _______________________________
Justice T. Lederer
I agree _______________________________
Justice L. Sheard
Released: January 7, 2022
CITATION: Krishna v. Alexandra Park Co-operative, 2022 ONSC 92
DIVISIONAL COURT FILE NO.: DC-21-386
DATE: 20220107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER, MATHESON & SHEARD JJ.
BETWEEN:
SAMMY KRISHNA
Appellant
– and –
ALEXANDRA PARK CO-OPERATIVE
Respondent
REASONS FOR DECISION
Released: January 7, 2022