CITATION: CREGLIA V. MATHEWS, 2023 ONSC 3781
DIVISIONAL COURT FILE NO.: 557/2022
LTB FILE NO.: TSL-23662-21
DATE: 20230626
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WALTER CREGLIA
Caryma Sa’d, Lawyers for the Tenant (Appellant)
Tenant (Appellant)
– and –
KAROLYN MATHEWS AND RICHARD MATHEWS
Spencer Toole, Lawyers for the Landlords (Respondents)
Landlord (Respondents)
HEARD at Toronto: May 31, 2023 and June 22, 2023
LEIPER J.
[1] The Appellant, Walter Creglia is a tenant in a house at 19 Weybridge Court, in Etobicoke, Property owned by the Respondents, Karolyn Mathews and Richard Mathews. Mr. Creglia is the former owner, having sold it to the Respondents several years ago.
[2] Since that time, in several applications before the Board, the parties have been engaged in residential tenancy litigation before the Landlord and Tenant Board pursuant to the Residential Tenancies Act, 2006, S.O 2006, c. 17, as amended (the “RTA”).
[3] This appeal is from an order of the Board, affirming a prior decision of the Board to terminate the tenancy, based on evidence that the Respondents wish to demolish the house and rebuild it for their own use, had provided proper notice and compensation to Mr. Creglia. However, because Mr. Creglia was not present at the hearing, he sought a review and an order for a new hearing so that he could participate.
[4] In brief, the procedural history of this application is as follows. On August 13, 2021, the Respondents served Mr. Creglia with an N13 Notice for an order to terminate the tenancy and evict Mr. Creglia from the house for the purposes of demolishing and rebuilding the home.
[5] The Board scheduled a hearing on this application for December 7, 2021. The parties attended that day, but the matter was not reached because of the Board’s volume of work. The matter was rescheduled to March 8, 2022. Again, both parties attended and, again, the matter was not reached. The matter was adjourned a third time to be heard on June 6, 2022.
[6] Mr. Creglia had other applications pending before the Board at the time of the March 8, appearance, including an application at his instance that was scheduled to be heard on June 28, 2022. On May 3, 2022, the Board sent him a notice by mail of the June 6 hearing concerning the Respondents’ application to terminate the tenancy. That notice was not returned as undeliverable.
[7] The Board did not send a notice to his representative on file, although it appears from the record that it may have erroneously sent the notice to his former legal representative. However, the Respondents’ representative did correspond by email with Mr. Creglia’s representative to provide disclosure relative to the June 6 hearing. The subject line of this email referred to the June 6 date of hearing and included this information: “Please find enclosed hereto the Landlord’s updated evidence for the hearing on June 6, 2022. You will note that we have included two additional tabs being Tab 26 and Tab 27.”
[8] A second email from the Respondents’ representative provided cases that they would be relying upon at the hearing. Again, the date of June 6, 2022, was mentioned in the email.
[9] At the June 6 hearing, which neither Mr. Creglia, nor his representative attended, the Board made findings that the Respondents had paid compensation to Mr. Creglia as required by the RTA, that they had obtained the necessary permits to demolish the house and had provided notice of termination of the tenancy. The Board issued an eviction order.
[10] The legal representative for the Respondents noted on the record that she had been in contact with Mr. Creglia’s representative and noted it was “odd” that the representative was not present. The matter was held down, so that Mr. Creglia’s representative could be contacted to advise her they were waiting for her to attend.
[11] On June 6, 2022, at 6:18 p.m. Mr. Creglia’s representative sent an email to the Respondents representative, advising that she had not received notice from the Board to participate in the hearing and that they would be filing to have the matter re-heard based on the lack of “proper notice.”
[12] On July 13, 2022, Mr. Creglia sought a review of the hearing on the basis that he was not reasonably able to participate.
[13] On September 7, 2022, Board heard Mr. Creglia’s review request. Mr. Creglia’s representative did not make submissions or mention that a source of the confusion was that an expectation that the June matters would both be heard on June 28, and that she had requested this at the time of the March adjournment and by a follow-up letter. Mr. Creglia gave evidence that he relied on his representative and that he did not receive the notice of hearing, although he was receiving mail at that time.
[14] The Board asked Mr. Creglia why he did not attend the hearing, and he responded:
A. Well, my, my legal representation is the one that's is, is supposed to be notified about any hearings or anything. I was not notified in the sense, did not receive anything on that for the July 6th or whatever, and I employ legal representation for a reason. If she's not aware of it and she's in another, how do you say, trial on that date, that means that we were never notified.
[15] Mr. Creglia testified as to whether he had issues receiving mail as follows:
A. No. I’ve never had any issues. You know, I mean they, they, they come to the mailbox. I open them and then I, I, I, well within the time period of the hearing, I, I review it with my legal counsel and, how do you say, we, we move forward on it. You know….
Q. So it's, so it's safe to say there's nothing wrong with your mail at the moment. Right?
A. Pardon me?
Q. There's nothing wrong with your mail at the moment?
A. No. There's nothing wrong with the mail. Now, whether the, the, the, the LTB sent me that letter or not, I mean I don't know if they sent it or not. I did not receive it.
[16] The Board found that a combination of a notice of hearing mailed to the home on May 3, 2022, and the Respondents’ representative’s email of May 30, 2022 persuaded her that the Mr. Creglia had wilfully failed to attend the hearing and “should not be rewarded with a rehearing.” The Board made findings of fact that notice was sent to Mr. Creglia, not returned to the Board, and it was deemed to have been effective as of May 8, 2022. The Board also referred to the emails from the Respondents’ representative which contained the June 6, 2022 hearing date and provided material for the hearing. The Board was not convinced that Mr. Creglia genuinely intended to participate in the hearing, although it made no finding that his failure to attend was a deliberate attempt to delay the hearing.
[17] Mr. Creglia’s notice of appeal and factum initially submitted that his non-attendance on June 6 related to a misunderstanding about the date of the hearing. He alleged that his representative sought to consolidate the June 6 and June 28, 2022 matters before the Board at the time of the March adjournment and by a written follow-up communication. He submitted that this caused confusion about the June 6 date.
[18] This representation was withdrawn during argument by counsel to Mr. Creglia (who was not his representative at the hearing) once the transcripts were ordered and they revealed that no such request was made, nor referred to at the reconsideration of the matter. The letter seeking to consolidate was never produced. Counsel to Mr. Creglia is to be acknowledged for her diligence in ensuring that a complete record was before the court on this appeal and for appropriately conceding that Mr. Creglia’s representations on that portion of the argument were not borne out by the record. This was an appropriate concession to make.
Standard of Review
[19] An appeal from a decision of the Board arises from a question of law alone by virtue of s. 210(1) of Residential Tenancies Act, 2006. The standard of review is correctness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para. 37;. Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
Issues on Appeal
[20] Mr. Creglia argues that the failure of the Board to consider the procedural history of the matter, including his attendance at prior hearings, amounts to an error in law. He also submits that he was denied natural justice in the treatment of his request for review.
Analysis: Did the Board Err in Law In Finding that Mr. Creglia did not genuinely intend to participate in the hearing?
[21] Mr. Creglia submits that based on the procedural history, this tenancy’s history before the Board and his evidence on the Review Hearing, that the Board’s conclusion that the Mr. Creglia did not genuinely intend to participate was not supported by the evidence. He also raises natural justice concerns relative to the importance of housing to tenants and the remedial nature of the RTA. The Board made findings of fact that are supported by the transcript and the record before it on the reconsideration hearing. These findings include evidence that the Mr. Creglia was properly served with the notice by the Board, that the notice was mailed to the Mr. Creglia on May 3, 2022, that the notice was not returned to the Board as undelivered, and the notice was deemed to have been served on Mr. Creglia on May 8, 2022. Further, the Board accepted the evidence that Mr. Creglia did not have a problem with delivery of mail to his address.
[22] Service is provided for by virtue of s. 191 of the RTA. The Board did not err in finding that Mr. Creglia was deemed to have been served by May 8, 2022. This meant that the Board had jurisdiction to proceed in Mr. Creglia’s absence on June 6, 2022, by virtue of the Statutory Powers Procedure Act, R.S.O. 1990, c S.22, as amended, s. 7(1).
[23] Findings of fact which support a legal available outcome are not subject to challenge on appeal on a question of law alone: Sandgecko Inc. v. Ye, 2020 ONSC 7245 (Div. Ct.) at para. 34.
[24] Mr. Creglia was able to seek a review of the hearing in his absence and seek a further hearing. He gave evidence about his reasons for failing to attend the June 6 hearing. He was represented at the review hearing and received written reasons explaining the decision of the Board. The decision was an important one to him, with significant consequences. This process, while it did not provide him with the result he wanted, was procedurally fair.
[25] While different adjudicators might reach different conclusions from the same record, or draw different factual inferences, I cannot conclude that the Board’s review hearing arrived at a result that was clearly unreasonable, illogical, or unfair. The salient facts concerning the notice, Mr. Creglia’s non-attendance and the communications to his representative which ought to have alerted her to the June 6 hearing were considered, discussed, and supported by the record.
[26] The Board’s failure to mention the fact that Mr. Creglia attended on two prior occasions does not amount to an error in law in the context of the issues: what was more pertinent was the providing of notice, the communications between the representatives leading up to and at the hearing, and Mr. Creglia’s evidence about how he receives mail. An adjudicator who fails to discuss a relevant factor in depth or mention a relevant factor is not a sufficient basis for an appellate court to reconsider the evidence: Housen v. Nikolaisen at para. 39.
[27] In essence, Mr. Creglia is asking this court to reweigh the evidence that was presented before the Board at the review hearing and to arrive at a different conclusion. That is not the role of this court on appeal.
[28] Having found that the Board made no error in law, nor did it breach Mr. Creglia’s right to procedural fairness, I conclude that the appeal must be dismissed.
Conclusion
[29] The appeal is dismissed. The Board’s order terminating the tenancy is upheld. It will take effect as of August 1, 2023, to permit Mr. Creglia time to find alternative accommodation.
[30] The Respondents are entitled to their costs of this appeal, which I fix at $6,000.
Leiper J.
Date of Release: June 26, 2023
CITATION: CREGLIA V. MATHEWS, 2023 ONSC 3781
DIVISIONAL COURT FILE NO.: 557/2022
LTB FILE NO.: TSL-23662-21
DATE: 20230626
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
WALTER CREGLIA
Tenant (Appellant)
– and –
KAROLYN MATHEWS AND RICHARD MATHEWS
Landlord (Respondents)
REASONS FOR JUDGMENT
LEIPER J.
Date of Release: June 26, 2023