CITATION: Chan v. Tralen Investments Ltd., 2023 ONSC 4345

DIVISIONAL COURT FILE NO.: 448/22
DATE: 20230727

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LIEN THU CHAN and NGHIA TRAN, Appellants

AND:

TRALEN INVESTMENTS LTD. a.k.a. Tralen Investments Inc., Respondent

BEFORE: Lococo, Nishikawa and Schabas JJ.

COUNSEL: Natasha Mazzitelli, for the Appellants

Jimmie Chen, for the Respondent

HEARD at Toronto: July 26, 2023 (by videoconference)

ENDORSEMENT

Overview

[1] The Appellant tenants, Lien Thu Chan and Nghia Tran, appeal from the order of Member Terri van Huisstede of the Landlord Tenant Board (the “Board”) dated July 15, 2022, terminating the tenancy for purposes of conversion to a non-residential use (the “Decision”) under ss. 50(1)(b) and 69(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).

[2] The Appellants submit that the Board erred in law by:

(i) Denying the Appellants’ adjournment request without providing them the opportunity to appoint a litigation guardian;

(ii) Finding that the Respondent landlord required possession of the unit to convert it to use for a purpose other than residential premises; and

(iii) Finding that discretionary relief under s. 83 of the RTA was not warranted.

[3] For the reasons that follow, the appeal is dismissed.

Factual Background

[4] The Appellants have lived in the main floor unit of the property for 20 years. The Respondent Landlord, Tralen Investments Ltd., owns the property. On July 7, 2020, the Respondent served the Appellants with a Notice of Termination with a termination date of November 30, 2020. The Notice stated that the Respondent intended to convert the main floor unit to a non-residential use (i.e., a retail store). On April 1, 2021, the Respondent obtained a zoning certificate, which approved a mixed-use (commercial and residential) building on the property.

[5] At the hearing, the Appellants sought an adjournment on the basis that Ms. Chan was experiencing mental health difficulties and that Mr. Tran could not afford to miss a day of work. The Board denied this request, finding that there had already been long delays; Mr. Tran chose to go to work and send a representative to the hearing instead; and an entire afternoon had been reserved to hear the merits of the application.

[6] The LTB found that the Respondent had a good faith intention to convert the unit to a commercial space and terminated the tenancy. The Board granted a delayed eviction with a termination date of September 30, 2022.

[7] The Appellants requested a review of the Decision. In a decision dated September 20, 2022, the Decision was upheld.

Analysis

The Applicable Principles

[8] Section 210 of the RTA provides a statutory right to appeal a decision of the LTB, but only on a question of law. In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337 (Div. Ct.), at para. 28, aff’d 2022 ONCA 446, this court explained what constitutes a question of law in the context of a statutory appeal, as follows:

On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).

[9] The parties agree that the applicable standard of review on an appeal on a question of law is correctness.

Did the Board Err in Denying the Appellants’ Adjournment Request?

[10] The Appellants submit that the Board erred in denying the Appellants’ adjournment request and in failing to provide Ms. Chan an opportunity to file a signed declaration to appoint a litigation guardian.

[11] The Appellants raise the appointment of a litigation guardian for the first time on appeal. It is not in the interests of justice to allow the Appellants to raise this issue when it was not before the decision-maker at first instance and no request for a litigation guardian was made before the LTB: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at paras. 18-24. There is no basis on which to find that the Board should have adjourned the hearing to suggest on its own initiative that a litigation guardian be appointed when no such request was made.

[12] The issue of whether the Board should have granted an adjournment because of the Appellants’ mental health and employment issues is not a question of law. The granting of an adjournment is an exercise of discretion that falls well within the scope of a tribunal to control its process.

Did the Board Err in Finding that the Respondent Required Possession?

[13] The Appellants submit that the Board erred in concluding that the Respondent required possession to convert the premises to use it for a purpose other than residential premises under s. 50(1) of the RTA because the City had denied the Respondent’s variance request in respect of the mandatory installation of a wheelchair ramp.

[14] In my view, the grounds raised by the Appellants do not fall within the limited circumstances in which an administrative decision-maker’s assessment of evidence gives rise to an error of law. The Appellants do not identify an error in law or legal principle made during the fact-finding exercise or a misapprehension of the evidence based on a wrong legal principle. The Appellants essentially disagree with the Board’s findings made on the evidence that was before her. These are questions of fact which fall outside this court’s jurisdiction under s. 210.

[15] In any event, the evidence supported the Board’s findings. The Respondent had obtained a zoning certificate for a mixed-use building. The Decision further reflects that the Board accepted the Respondent’s evidence that a minor variance to install a wheelchair ramp was not necessary to convert the unit from residential to mixed use. Moreover, the Appellants provided no evidence to contradict the Respondent’s evidence that no other permits were necessary to convert the premises.

[16] As a result, the Board did not err in finding that the Respondent required possession within the meaning of s. 50(1) of the RTA.

Did the Board Err in Declining to Order Discretionary Relief?

[17] The Appellants take the position that the Board erred in concluding that discretionary relief under s. 83(1) of the RTA was not warranted. The Appellants submit that the Board should have refused to order eviction or postponed it for at least seven months. The Appellants submit that the Board failed to consider all the relevant circumstances, including the highly prejudicial effects of an eviction order on the Appellants, in particular because of Ms. Chan’s mental health concerns and the Appellants’ financial circumstances.

[18] Again, the issue raised by the Appellants is not a question of law. The Appellants take issue with the Board’s findings on the evidence and her exercise of discretion. It is clear from the Decision that the Board took into consideration the fact that the Appellants had lived in the unit for over 20 years and that finding affordable housing would present a significant challenge, especially given one of the Appellants’ mental health concerns. However, the Board also recognized that the Appellants had the benefit of a two-year delay in having the matter heard on the merits and that the Respondent had experienced an extended inconvenience.

[19] Accordingly, I find that the appeal raises no question of law.

Conclusion

[20] For the foregoing reasons, the appeal is dismissed.

[21] The automatic stay of the LTB’s order is to be lifted. In order to permit the Appellants to make arrangements to vacate the premises, the lifting of the stay is not to take effect until September 30, 2023.

[22] The Respondent seeks its costs of the appeal on a full indemnity basis. However, I see no basis for the award of full indemnity costs, which are reserved for cases of egregious conduct. The Appellants shall pay costs to the Respondent on a partial indemnity basis fixed at $3,500, all-inclusive.

“Nishikawa J.”

“I agree: Lococo J.”

“I agree: Schabas J.”

Date: July 27, 2023