CITTION: Timbercreek Asset Management Inc. v., 2024 ONSC 4041 DIVISIONAL COURT FILE NO.: DC-19-1178 and DC-22-1346 LANDLORD AND TENANT COURT FILE NOS.:
TNL-15571-19, TNL-15574-19 & TNL-15575-19, TNL-15571-19-RV, TNL-15574-19-RV & TNL-15575-19-RV, and LTB-L-001037-22 & LTB-L-001037-22-RV
DATE: 20240717
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN: )
ABDY SOUFI
– and –
Div. Ct. File No.: DC-19-1178
Tenant (Appellant in Appeal)
) Gene Filice, for the Tenant
) (Appellant in Appeal)
TIMBERCREEK ASSET MANAGEMENT INC.
Landlord (Respondent in Appeal)
– and –
LANDLORD AND TENANT BOARD
Intervenor
) Timothy M. Duggan, for the Landlord (Respondent in Appeal)
) Morgana Kellythorne and Valerie Crystal,
) for the Landlord and Tenant Board
AND BETWEEN: )
ABDY SOUFI
– and –
Div. Ct. File No.: DC-22-1346
Tenant (Appellant in Appeal)
) Gene Filice, for the Tenant
) (Appellant in Appeal)
HAZELVIEW PROPERTY SERVICES INC.
Landlord (Respondent in Appeal)
– and –
LANDLORD AND TENANT BOARD
Intervenor
) Timothy M. Duggan, for the Landlord (Respondent in Appeal)
) Morgana Kellythorne and Valerie Crystal,
) for the Landlord and Tenant Board
J.C. Corkery J.:
[1] The appellant brings two appeals under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) with respect to the following orders of the Landlord and Tenant Board (“LTB”):
a. 2019 appeal:
the order dated July 26, 2019, made by Member Harry Cho (TNL-15571-19, TNL- 15574-19 &TNL-15575-19);
the review order dated August 7, 2019, made by Vice Chair Egya Sangmuah (TNL- 15571-19-RV, TNL-15574-19-RV &TNL-15575-19-RV);
b. 2022 appeal
the order issued May 25, 2022, by Member Susan Priest (LTB-L-001037-22);
the review order issued December 14, 2022, made by Member Jitewa Edu (LTB- L-001037-22-RV).
[2] The appellant asks this Court to set aside these orders and dismiss the landlord’s application to terminate the tenancy, or, in the alternative, to remit the matter to the LTB for a new hearing before a differently constituted panel.
[3] Both appeals involve the same landlord, the same tenant and rental unit. In both proceedings, the appellant tenant did not attend his hearings. The hearings proceeded in his absence and resulted in termination and eviction orders. In both hearings, the LTB found that the appellant had committed an illegal act. In the 2019 hearing, the LTB found that the appellant had created a serious impairment of safety. In both cases, the LTB found that the appellant had persistently paid rent late. In both proceedings, the LTB denied the tenant’s requests for review.
[4] The issues on both appeals are whether the LTB’s process was procedurally fair and whether the LTB’s decisions contain any errors in law. More specifically, the question is: was the appellant denied procedural fairness in being denied his right to be heard?
A. Background
[5] As of October 27, 2022, the appellant was 68 years old. He is diagnosed with depression. According to his doctor, the appellant has suffered from depression since 2010. His source of income is Old Age Security and before that ODSP.
[6] The appellant has lived in the rental unit since May 1, 2011. His rent is subsidized by the government. On May 1, 2019, the total rent was $1,225.70 per month. The portion the appellant paid was $139.00 per month.
1. 2019 Appeal
[7] The respondent landlord filed eviction application (TNL-15571-19, TNL-15574-19 & TNL-15575-19) based on: illegal act, impairment of safety, and persistent late payment of rent. The illegal act and impairment of safety related to an allegation that the appellant lit on fire and burned part of a paper notice posted on an exit door in the unit. A combined LTB hearing date was set for July 24, 2019. The appellant did not attend.
[8] The hearing proceeded in the appellant’s absence on July 24, 2019. The hearing transcript from July 24, 2019, shows that the hearing began at 10:06 a.m. and concluded at 10:18
a.m. An eviction order was issued by Member Harry Cho with provisions for expedited enforcement of the eviction.
[9] On August 1, 2019, with the assistance of the Community Legal Clinic of York Region, the appellant filed a Request to Review. He explained that he was unable to participate in the hearing due to a car issue. On the date of the hearing, he had arranged for a friend to drive him. On the way, the friend’s car had a flat tire. It took one hour to change the tire and the appellant arrived at the hearing location at 11:00 a.m., where he was informed that his case had already been heard and that he needed to file a review. He wanted to participate in the hearing.
[10] On August 7, Vice Chair Egya Sangmuah of the LTB issued a Review Order denying the appellant’s Request to Review without a hearing.
[11] On August 12, 2019, the appellant was evicted by the sheriff.
[12] On August 23, 2019, Sosna J. granted the appellant’s motion to be reinstated to possession of his rental unit pending this appeal.
2. 2022 Appeal
[13] The respondent filed eviction application LTB-L-001037-22 based on an illegal act relating to an allegation that the tenant took an Amazon delivery package left on the floor of the lobby which did not belong to him. The LTB video hearing for this application proceeded uncontested in the absence of the appellant on May 10, 2022. An eviction order was issued on May 25, 2022, by Member Susan Priest, without the appellant’s knowledge
[14] On June 15, 2022, with the assistance of the West Scarborough Community Legal Services legal aid clinic, the appellant filed a Request to Review. In support of his request, the appellant stated that he never received the Notice of Hearing and was unaware of the hearing which took place on May 10, 2022. He stated that he did “not know how or why he never received, saw, or became aware of the Notice of Hearing for this case, but the reality is that he never knew about this hearing taking place on May 10, 2022.” Had he known of the hearing he “absolutely would have been present to argue his defence”.
[15] The LTB granted a Review Hearing and granted a stay pending the hearing scheduled for October 27, 2022.
[16] On October 27, 2022, a review hearing was held before LTB Member Jitewa Edu. The appellant was represented by Mr. Filice. The appellant testified and three exhibits were entered: documentation regarding the appellant’s government rent subsidy; a doctor’s letter confirming the appellant’s depression diagnosis and treatment; and a transcript of the motion before Sosna J. on August 23, 2019.
[17] The appellant testified at the hearing. Asked if he received a document notifying him of the May 10, 2022 hearing from the LTB, he answered, if they mailed it then he probably did. Asked why he did not attend the hearing, the appellant said he did not know he had to join the video meeting and that he did not think Mr. Filice knew about it either. The appellant said he received something from the LTB, but he did not recall what it was. Asked again if he knew about the hearing on May 10, 2022, he said he did not. The answers provided by the appellant during the review hearing are inconsistent regarding his receipt of the notice. He is clearly confused. When asked by the member if there was any reason why he would not have received mail from the LTB, the appellant answered that he had no idea. He was consistent, however, that he was not aware that the May 10, 2022 hearing was taking place.
[18] On December 14, 2022, Member Edu issued her order denying the appellant’s request and lifting the eviction stay. She was not satisfied that the tenant was not reasonably able to participate in the proceeding. Considering the evidence presented and the provisions s. 193(3) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, the member concluded that “the tenant chose not to attend the hearing even though he received the Notice of Hearing from the Board and was aware of the hearing date”.
B. Analysis
[19] As stated by Cunningham A.C.J., speaking for this court in King-Winton v. Doverhold Investments Ltd., at para 3, “Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.”
[20] Procedural fairness is a question of law. The standard of review is correctness.
[21] With respect to both appeals, the appellant was not reasonably able to participate. On both matters, the appellant wished the opportunity to be heard. Appropriately applying the broad interpretation of natural justice in this regard, the appellant was denied the opportunity to be heard in both the 2019 hearing and the 2022 hearing. He was not reasonably able to participate in either hearing.
[22] The appellant has a completely reasonable explanation for his arriving late and missing the 2019 hearing, a flat tire. He conducted himself responsibly. Upon arriving, he learned that his hearing had concluded and that he would need to file a review. He sought legal advice and promptly filed a Request to Review.
[23] With respect to not participating in the May 10, 2022 video hearing, the appellant provided a reasonable explanation: he was not aware that there was a hearing. Although s. 191(3) of the Residential Tenancies Act provides that a notice given by mail shall be deemed to have
been given on the fifth day after mailing, from the appellant’s evidence it was apparent that if he received the notice, he did not understand it. By this point, he was represented by a lawyer and it is clear that he was deferring to his lawyer.
[24] The appellant has a disability. He has suffered from depression for many years. He received ODSP. His rent is almost wholly subsidized. It is reasonable to infer that eviction would leave him homeless. This constitutes a clear and appropriate application of the broad interpretation of being reasonably able to participate in the proceeding and on the facts of this case natural justice requires no less.
[25] The review orders are set aside and both matters are to remitted back to the LTB for new hearings before differently constituted panels.
Released: July 17, 2024
CITTION: Timbercreek Asset Management Inc. v., 2024 ONSC 4041 DIVISIONAL COURT FILE NO.: DC-19-1178 and DC-22-1346 LANDLORD AND TENANT COURT FILE NOS.:
TNL-15571-19, TNL-15574-19 & TNL-15575-19, TNL-15571-19-RV, TNL-15574-19-RV & TNL-15575-19-RV, and LTB-L-001037-22 & LTB-L-001037-22-RV
DATE: 20240717
ABDY SOUFI
– and –
Div. Ct. File No.: DC-19-1178
Tenant (Appellant in Appeal)
TIMBERCREEK ASSET MANAGEMENT INC.
Landlord (Respondent in Appeal)
– and –
LANDLORD AND TENANT BOARD
INTERVENOR
Released: July 17, 2024