Court File and Parties

CITATION: So v. Canadian Mental Health Association, Toronto Branch, 2024 ONSC 3371

DIVISIONAL COURT FILE NO.: 603/23

DATE: 20240612

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NGUI-HAU TERRI-LYNN SO, Appellant -and- CANADIAN MENTAL HEALTH ASSOCIATION TORONTO BRANCH, Respondent

BEFORE: FL Myers J

COUNSEL: Joseph Kary, for the Appellant Mark A. Glynn and Ashleigh Graden, for the Respondent

HEARD at Toronto: June 11, 2024 (by videoconference and telephone)

Endorsement

[1] Ms. So appeals the decision of the Landlord and Tenant Board summarily rejecting a request for consideration of an order entered into by the parties on consent.

[2] The landlord alleged that Ms. So had violated the terms of a prior order made by the board. Under the terms of the prior order, the landlord had obtained an order evicting Ms. So. Ms. So moved to set aside that order. She requested accommodation from the board for mental health disabilities from which she suffers.

[3] At the hearing, Ms. So had the assistance of a professional support worker and duty counsel. After meeting with her aids and the landlord’s representative, the parties compromised. Ms. So agreed to leave the rental premises and the landlord agreed to provide her two extra months to do so.

[4] On duty counsel and Ms. So confirming the agreement to the Presiding Member, she made the order sought.

[5] The matter came to the Divisional Court and, on consent, was sent back to the board for reconsideration.

[6] Ms. So submits that the on reconsideration the Vice Chair of the board made errors of law and applied an unfair process in upholding the consent order.

[7] This appeal proceeds under s. 210 of the Residential Tenancies Act 2006, SO 2006, c 17. The appeal is limited to reviewing errors of law and procedural fairness. The standard of review is correctness on issues of law. Fairness is considered under the factors discussed by the Supreme Court fo Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC).

[8] In my view, the Vice Chair who dealt with the reconsideration decision made no errors of law and committed no violation of procedural fairness. Therefore, the appeal is dismissed.

[9] Ms. So submits that her mental health issues vitiated her consent to the order terminating her tenancy. She submits that the initial Presiding Member failed to inquire into her consent sufficiently. But that is not the issue on the appeal as it involves findings of fact and application of the law to the facts. Those types of issues cannot be appealed to this court.

[10] Instead, Ms. So submits that the Vice Chair of the board erred in law by deciding the reconsideration on its merits at the screening stage.

[11] Ms. So submits that the Vice Chair made a legal error because instead of just considering whether Ms. So raised serious issues that required an oral hearing on reconsideration, the Vice Chair found that he was satisfied that Ms. So did not establish any serious error entitling her to reconsideration.

[12] Mr. Kary submits that the Vice Chair made findings of fact on evidence when he was just conducting a screening for a prima facie case. The time for evidence had not arrived yet. Mr. Kary submits that the Vice Chair was not entitled to find that Ms. So had no case. Rather, he was required by the statute and Guidelines published by the board to consider whether she might have a case and, if so, to send it on to an evidentiary hearing.

[13] Mr. Kary submits that the same argument raises an issue of procedural fairness. He submits that Ms. So did not know the case she had to meet as she understood the Guidelines to say that evidence was not to be filed for the first level screening of reconsideration requests. She was not told that her evidence would be considered and weighed on its merits.

[14] Mr. Kary raises a particular concern with the Vice Chair’s rejection of the sufficiency of Ms. So’s doctor’s note to establish her lack of capacity to consent to the settlement of the initial motion to set aside the eviction order.

[15] Ms. So also says that the Presiding Member and the Vice Chair both failed to consider s. 83 of the statute that provides an equitable jurisdiction to prevent eviction.

[16] I agree with Mr. Glynn however, that there is semantics but no substance in Ms. So’s submissions.

[17] Rule 26.8 and 26.9 board’s Rules of Procedure provide:

26.8 A request to review an order must provide:

a. the order number;

b. the address of the rental unit or member unit;

c. the requestor's name, address and telephone number;

d. if the requestor is not a party to the order, explain the requestor's interest in the order;

e. sufficient information to support a preliminary finding of an alleged serious error or an explanation why the requestor was not reasonably able to participate in the hearing;

f. an explanation of how the order should be changed;

g. if seeking to stay the order, an explanation why a stay is necessary and any prejudice or harm may result if a stay is not ordered;

h. information about any appeal of the order; and

i. where there is an appeal of the order, the requestor's position on whether the LTB should lift the stay resulting from the appeal.

Preliminary Review of Request

26.9 The LTB will conduct a preliminary review of the request and may exercise its discretion to:

a. dismiss the request because it was not filed in time;

b. extend the time for making the request;

c. dismiss the request; or

d. direct a review hearing of some or all of the issues raised in the request and, where appropriate, make any interim orders.

[Emphasis added.]

[18] Mr. Kary delivered a comprehensive written submission to support the tenant’s reconsideration request. The tenant knew or was deemed to know that the relevant rule required that the submission contain, “sufficient information to support a preliminary finding of an alleged serious error” and “an explanation of how the order should be changed.”

[19] In Ms. So’s submission supporting reconsideration, Mr. Kary referred to the evidence that was before the Presiding Member including the doctor’s letter. He made the same submissions as he made in this appeal concerning the Presiding Member’s duty to ascertain the validity of the tenant’s consent, the duty to accommodate the tenant’s disabilities, and s. 83 of the statute among other things.

[20] The Vice Chair held:

[2] On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings or that the Tenant was not reasonably able to participate in the proceeding. Accordingly, the Tenant's review order TSL-26154-22-SA must be denied.

[21] The Vice Chair gave reasons to support that conclusion:

a. that the tenant was accommodated by the presence of a support worker and duty counsel;

b. that the Presiding Member had considered the circumstances as required by s. 83 despite failing to mention the section by its number;

c. that the Presiding Member had sufficiently determined that Ms. So understood and agreed to the termination of her tenancy; and

d. that the doctor’s letter relied upon by Ms. So was inadequate to undermine Ms. So’s capacity to contract. It did not describe any diagnosis or limitations on Ms. So’s ability to participate in the proceeding.

[22] The Vice Chair ultimately held that, “the Tenant has not established circumstances sufficient to justify interfering with the consent order, such as mistake, fraud, duress, lack of capacity, or unconscionability.”

[23] Mr. Kary submits that the Vice Chair erred in deciding the reconsideration at the screening stage. He should have just considered whether the tenant raised a prima facie case to then go on to an oral hearing. He should not have weighed the evidence before evidence was adduced and issues were joined at an oral hearing.

[24] I disagree.

[25] The reconsideration is not a do-over. It is a discretionary process to allow a review in specific circumstances. The hearing occurred already. The issue was whether Ms. So’s submission provided sufficient information to support a preliminary finding that a serious error was made at the hearing. It did not.

[26] There was no weighing of the parties’ evidence as the landlord had never adduced any evidence. All that was considered was the sufficiency of the tenant’s submission. The Vice Chair held that it was insufficient to raise a ground requiring further consideration and he therefore dismissed the reconsideration process as he was entitled to do under Rule 26.9 (c).

[27] Section 83 does not have a second independent applicability at a reconsideration hearing. The Vice Chair was not required to consider it himself as opposed to reviewing the Presiding Member’s consideration. Delic v Enrietti-Zoppo, 2022 ONSC 1627.

[28] This appeal is on all fours with the decision of Horkins J. in Li v. Gibson, 2018 ONSC 1347 at paras 16 and 23 to 26 and is similarly devoid of merit.

[29] There was no denial of procedural fairness. Ms. So knew the case she had to meet on reconsideration and had a fair opportunity to do so.

[30] While a consent order can be undermined by contractual defences, including the doctrine or unconscionability, here Ms. So had support and legal advice. Even if she was still vulnerable, the outcome provided her with a benefit to which she was not otherwise entitled. Even if the application of the doctrine of unconscionability to the facts was appealable, I could not find a palpable and overriding error (or a that the Vice Chair ought to have found a prima facie case of serious error) in any event.

[31] The respondent seeks minimal costs of $2,500 all-inclusive. In my view it is fair and reasonable for costs to follow the event. The amount claimed pales in comparison to the amount claimed by Mr. Kary that is more indicative of the real costs of the appeal.

[32] The appeal is therefore dismissed. Ms. So is ordered to pay costs to the respondent fixed in the amount of $2,500 all-inclusive.

FL Myers J

Date: June 12, 2024