Court File and Parties

CITATION: Wang v. Oloo, 2023 ONSC 1028

DIVISIONAL COURT FILE NOS.: 527/22

DATE: 20230210

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JIN WANG v. JOHN OLOO ALOO and PAMELA

BEFORE: D.L. Corbett J.

COUNSEL: Jimmie Z. Chen, for the landlord / Moving Party Wang Mr and Ms Oloo, self-represented

HEARD: By Zoom, November 14, 2022

Endorsement

[1] This is a motion to quash an appeal on the basis that no arguable basis for appeal has been raised in the Notice of Appeal and the landlord requires the premises for her own use.

[2] The issue on appeal is a question of procedural fairness. The tenants requested an adjournment of the LTB hearing and did not appear at the hearing. The LTB proceeded in their absence. These facts are uncontested. The tenants argue that this is a denial of their right to be heard – and they are entitled to their day in court on their appeal.

[3] I do not accept this argument. The LTB has a process to decide adjournment requests. That process requires that a party provide evidence supporting an adjournment request prior to the hearing to obtain an adjournment before the hearing date. If the party does not do this, it is then for the party to appear at the hearing – in person or by agent – to request the adjournment and to furnish evidence in support of the request.

[4] In this case, the LTB made the process clear to the tenants and asked them – repeatedly – to provide evidence in support of their adjournment request. The tenants did not do so. All the LTB received was the request itself, with bald assertions that the tenants were unavailable for medical and travel reasons.

[5] On the day of the hearing, the tenants did not attend, either themselves of by way of an agent. The LTB proceeded and granted the landlord’s application. Among other things, the LTB found that the landlord requires the premises for her own use.

[6] Following the hearing, the tenants sought reconsideration, and in connection with that request provided a copy of Ms Oloo’s passport and a doctor’s letter respecting Mr Oloo’s ability to participate in the hearing. On reconsideration, the LTB was not satisfied that the tenants had explained their failure to document their adjournment request at the time of their initial request and was not satisfied that the doctor’s note was satisfactory to support an adjournment request. The note was conclusory and did not explain the basis on which the doctor was of the view that Mr Oloo could not attend and participate in the hearing.

Analysis

[7] The LTB followed its own rules respecting adjournments at the original hearing. The requirement that a party requesting an adjournment provide evidence in support of the request before the hearing is a reasonable one. The tenants have no reasonable explanation for failure to comply with this requirement. As of the date of the hearing, no adjournment had been granted, no evidence had been provided to support an adjournment request, and neither then tenants nor an agent on their behalf attended the hearing. There is no argument available for appeal that the LTB proceeded in a procedurally unfair manner in holding the hearing, as scheduled, in these circumstances. The hearing panel stated in its decision that “there was no record” of a request for an adjournment. The tenants argue that this is incorrect – they did send an email asking for an adjournment. That request was not placed before the panel because the tenants provided no evidence in support of their request – so the panel’s statement that there was “no record of a request” reflected the record before the panel, and there was no administrative error in failing to include the undocumented adjournment request in the hearing file.

[8] I agree with the tenants that, on reconsideration, the LTB should consider any proper fresh evidence that explains a tenant’s unavailability at the original hearing. However, the fresh evidence must be proper fresh evidence – that is, it must be evidence that was not available at the time of the original decision, and which could not have been tendered at that time through the exercise of reasonable diligence. It would frustrate the LTB process otherwise: if a party could obtain an extended adjournment by failing to follow the Board’s process for seeking an adjournment and then obtain delay by proffering the evidence in the reconsideration process they should have provided before.

[9] Exigent circumstances may prevent a party from following the LTB’s prescribed process for obtaining an adjournment before or at the hearing. Those circumstances may be addressed by application of the test for fresh evidence. The tenants did not establish that their proposed fresh evidence was unavailable at the time of the original adjournment request or at the time of the original hearing. This, by itself, would have been a sufficient basis on which to deny reconsideration.

[10] Further, the fresh evidence did not change the result. The doctor’s note is inadequate to justify an adjournment. Courts have made this point, repeatedly, about doctor’s notes. It is the court, not the doctor, who decides whether the adjournment will be granted. Thus, a doctor’s note must obtain sufficient information to enable the court or tribunal to exercise its own judgment as to whether the adjournment should be granted. This should, at a minimum, describe the diagnosis, the effect of the patient’s condition on their ability to attend and participate in the hearing, and a statement as to when, in the doctor’s opinion, the patient will be well enough to attend court and participate as required. In this case, the LTB reconsideration panel was not satisfied that the doctor’s note explained Mr Oloo’s inability to participate in the hearing – either by telephone or by Zoom and did not further explain Mr Oloo’s failure to attend to request an adjournment. These are factual findings and are not amenable to appeal in this court.

[11] It is in this context that I have concluded that the appellants have not raised an arguable ground of appeal: the appellants have not identified an arguable issue of principle and the LTB’s findings of fact in the reconsideration decision are not appealable.

The Justice of the Case

[12] The tenants have been in the premises for 12 years. The primary reason for their eviction is that the landlord needs the premises for their own use. During argument of the motion, it became clear that – this issue aside – the landlord and the tenants have had a generally good relationship over the years. The tenants’ primary concern was to have sufficient time to find alternate accommodations. The landlord was proposing a new date to vacate in January, and the tenants were proposing June. It was not suggested that the tenants have any basis in fact for resisting an order to vacate in all these circumstances, and I am satisfied that the failure to seek an adjournment properly, to then seek reconsideration, and to then pursue this appeal, has been for the purpose of delaying the inevitable, and not on the basis that there is an arguable defence on the merits.

Disposition

[13] The motion to quash is granted. The tenants shall vacate the premises by no later than April 7, 2023, failing which the Sheriff is asked to enforce the eviction order of the LTB on April 10, 2023, or as soon after that time as is reasonably practicable. Setting the eviction date at April 7, 2023 is conditional upon the tenants bringing any arrears up to date and keeping their rent current to the date they vacate. If the tenants vacate the unit by the end of March 2023, and give the landlord thirty days’ notice of their intention to do this, then the tenants will not owe rent for April 1 – 7, 2023. Any issues with these payment terms may be addressed at the same time the parties address costs.

[14] If the parties are unable to agree on costs they shall arrange a teleconference with this court to speak to that issue.

___________________________ D.L. Corbett J.

Date of Release: February 10, 2023