CITATION: Ramlal Hemchand v. Toronto Community Housing Corporation, 2023 ONSC 5777

DIVISIONAL COURT FILE NO.: 690/21

DATE: 20231018

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RAMLAL HEMCHAND, Appellant

AND:

TORONTO COMMUNITY HOUSING CORPORATION and LANDLORD AND TENANT BOARD, Respondents

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant Doug Letto, for the Respondent Toronto Community Housing Corporation Valerie Crystal, for the Respondent Landlord and Tenant Board

HEARD at Toronto: October 17, 2023, by video-conference

ENDORSEMENT

[1] By notice of appeal dated August 20, 2021 the appellant tenant brought an appeal of the decision of the Landlord and Tenant Board (“LTB”) dated August 6, 2021. That was the date of the hearing. The order is dated August 11, 2021 (the “Order”). In the notice of appeal, the appellant tenant also sought relief regarding an LTB order dated June 23, 2021.

[2] At the outset of the hearing of this appeal, the appellant clarified the spelling of his name. While his first name is spelled “Ramlal” in this appeal, it is also spelled “Ramlall” in some of his documents. He confirmed that both spellings could be used to refer to him.

[3] This appeal arises from an application by the respondent landlord to evict the appellant tenant for non-payment of rent. The LTB hearing was scheduled for June 23, 2021. The tenant requested that the hearing be rescheduled. That request was granted in advance of the hearing date. The landlord was notified that the hearing would be rescheduled, however, it appears that information was not given to others. As a result, a hearing was still convened on June 23, 2021. The tenant attended and asked again that the hearing be rescheduled. Since the landlord did not attend, the landlord’s application was dismissed as abandoned. The LTB member then became aware of the prior order rescheduling the hearing and gave an order reversing the above dismissal and ordering that the hearing proceed to be rescheduled.

[4] The hearing was rescheduled. Only the landlord attended the rescheduled hearing on August 6, 2021. The hearing proceeded and the LTB found that the tenant had vacated the unit in June 2021, but owed arrears of rent totaling $21,185.31. This is the Order under appeal in this Court.

[5] In the tenant’s notice of appeal, he alleged that he had wrongly lost his rent-geared-to-income (“RGI”) assistance, resulting in a large rent increase and the rental arrears. Before moving forward with his appeal, he was permitted to await a decision in a related application for judicial review that was before this Court. He had sought judicial review of a decision of the City of Toronto Review Board regarding his eligibility to receive RGI assistance.

[6] The tenant’s judicial review application regarding RGI was dismissed.[^1]

[7] The tenant did not proceed promptly with this appeal. Justice O’Brien’s directions dated April 21, 2023, recount the procedural history as follows:

This case conference was scheduled because it appears the appellant has not taken any steps to pursue his appeal. The appellant Tenant initiated the appeal in August 2021. Although his appeal was held in abeyance pending the determination of a related Divisional Court decision, he was directed in September 2021 to nonetheless proceed with obtaining the LTB transcripts for this appeal.

The Divisional Court decision was released on January 20, 2023 and a case conference was scheduled for February 16, 2023. On February 9, 2023, the appellant requested that a different date be chosen for the conference because he was having cataract surgery. On February 14, 2023, the court cancelled the February 16, 2023 case conference but directed the Tenant to answer the following questions within 7 days: The date for his cataract surgery, all dates on which he was available for a case conference until the end of March 2023 (and details to explain dates for which he was unavailable); and confirmation that he had ordered the transcripts from the LTB.

The Tenant did not respond to these questions. In March, 2023, the case conference was rescheduled to today in accordance with counsel for the Landlord’s availability. In the court’s March 10, 2023 directions, the Tenant was advised that he should be prepared to address the following issues at today’s case conference: explain why he did not respond to the court as directed previously; confirm that he had ordered the LTB transcripts; and be prepared to establish a prompt schedule for the exchange of materials and hearing of the appeal.

He was also advised as follows: “If [the appellant] is not able to confirm at the case conference and that he has ordered the LTB transcripts and demonstrate that he is prepared to establish a prompt schedule for the hearing of the appeal, he should be prepared to justify why the appeal should not be dismissed for delay.”

On April 16, 2023, only a few days before today’s conference, [the appellant] wrote to the court stating that he has been “unable to see, read, write, etc.” and that his scheduled surgery was postponed. He also stated that he would “produce all required docs on or [b]before the end o[f] June.”

[The appellant] did not appear at today’s case conference. Counsel for the Landlord advised that since the Tenant was directed to obtain the transcripts for this appeal, he has followed up with the Tenant several times and has received no confirmation that he has obtained the transcripts. The Landlord sought dismissal of the appeal for delay.

The Tenant not only failed to appear today but has been selective in his communications with the court. He states he cannot read or write but was able to write an email to the court, still not providing any details regarding his surgery nor directly answering the court’s other questions. In view of this, the court has serious concerns about his sincerity in pursuing this appeal.

However, given that, in his email, he said he will file all required documents by June 30, 2023, I have decided to give him a last opportunity to do so. Therefore, the parties shall comply with the following schedule:

By June 30, 2023, the Tenant shall file all his materials on the appeal, including the LTB transcript and his factum…

[8] The appellant tenant also failed to comply with the above schedule for his appeal materials.

[9] The appellant tenant uploaded some documents in July 2023, including an affidavit saying that he only came to know about the June deadline in July. The tenant uploaded a document described as a transcript of the LTB hearings on June 23, 2021 and August 6, 2021. The document has not been prepared by a professional transcriptionist. I therefore required that the LTB provide the Court with the audio recordings. At around that time, the respondent also brought a motion to quash. Since the appeal is now being heard, it is not necessary to separately deal with the motion to quash.

[10] An appeal under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, is limited to questions of law.

[11] The notice of appeal and factum recount events regarding the tenant’s dispute about rent increases beginning in 2017, and his RGI subsidy. This Court has already dismissed the tenant’s application for judicial review regarding the decision of the City of Toronto Review body in that regard. The notice of appeal and the tenant’s factum also make many allegations against the landlord that have no basis in the record, nor are there questions of law that arise from them.

[12] The issue raised by the appeal that is arguably a question of law is the course of events described above where the first hearing went ahead in error, giving rise to a second hearing. The second hearing then went ahead without the tenant. This gives rise to a potential issue of procedural fairness, which would be a question of law.

[13] There is no procedural unfairness arising from the LTB member realizing that he ought not have dismissed the landlord’s application on June 23, 2023, for failure to attend. The LTB member was correcting a mistake. The landlord had been notified that the hearing would be rescheduled. The landlord had not abandoned the application. The tenant would have a fresh opportunity to participate in a hearing of the landlord’s application on the rescheduled date. While the tenant may have been inconvenienced by attending at the first hearing date, it was not a breach of procedural fairness in the circumstances.

[14] The tenant suggests that he was entitled to the benefit of the error made at the first hearing, resulting in the application being dismissed. He submits that the LTB member was functus officio and therefore could not rescind the order made in error. However, the LTB member had not made a final order. On the contrary, due to the prior LTB order granting the tenant’s request to reschedule, the matter was not even properly before the LTB member on June 23, 2023. Even if the order was final, tribunals may revisit their final decisions where there has been an accidental slip or error: Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, at 860-861. Nor is the tenant’s appeal assisted by his reliance on res judicata and issue estoppel in the circumstances.

[15] The tenant has also made a submission based upon the Criminal Code and the concept of double jeopardy, which do not apply to this appeal.

[16] There is then the issue of whether it was unfair to proceed on the new date, without the tenant. The LTB has put forward a document indicating that the notice of hearing (for the new date) was mailed to the tenant along with information permitting the tenant to use the Public Access Terminals (“PATs”) that the LTB makes available to parties who do not have access to technology.

[17] The tenant has not put forward evidence that he did not receive the notice. However, in his submissions at the appeal hearing, the tenant said he did not receive the notice. In contrast with this submission, in his notice of appeal, the tenant said he had been sent a notice of the second hearing and his notice of appeal includes steps he took on that date. Having regard for all relevant material before me, I conclude that the tenant did receive the notice.

[18] The tenant also raises, at the hearing of this appeal, the submission that he did not receive the L1 form. There is no evidence to support this submission.

[19] The tenant also submits that the second hearing was unfair because the LTB building was closed due to the Pandemic and he could not get in. This came up for the first time at the appeal hearing. It is not in the appellant’s affidavit or the notice of appeal. The notice of appeal speaks about attempts to access the Internet at other locations that day, not an attempt to use the PATs available at the LTB. The appellant has not established that the building was closed.

[20] The appellant also alleges bias. At the outset of the first hearing, the LTB member disclosed that about fifteen years earlier he had worked for Toronto community housing but indicated that he did not believe that he had a conflict with this matter. He heard from the appellant, who objected, and ruled that he could hear the matter. The same LTB member heard the matter on the new date. The appellant has not put forward any evidence on this appeal that suggests that this ruling should be reconsidered.

[21] The appellant further submits that the LTB member had apparent camaraderie with the legal representative of the landlord at the second hearing based on the transcript. I have listened to the audio recording and it shows polite conversion while they waited for the appellant. It does not support a finding of bias.

[22] Lastly, the appellant submits that he has sought leave to appeal this Court’s decision in his application for judicial review. He asks that this appeal await his Court of Appeal hearing. The information about the status of a leave motion is unclear. The appellant himself said he had tried many times to appeal. Assuming that there is a motion for leave to appeal, it does not form a basis to delay this appeal. It has been more than two years since the LTB Order. Further, the appellant could have, and did not, raise this request in case management, well before the hearing of this appeal.

[23] This appeal is therefore dismissed. The appellant shall pay the Toronto Community Housing Corporation costs in the amount of $300, all inclusive. There shall be no costs for or against the LTB.

Matheson J.

Date: October 18, 2023

[^1]: 2023 ONSC 410