Court File and Parties

CITATION: Fahmi v. Liu, 2024 ONSC 4066

DIVISIONAL COURT FILE NO.: 153/24

DATE: 20240725

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NOURA OSAMA MOHAMED AHMED FAHMI, Appellant

AND:

YIMING LIU, Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant Self-represented Respondent Nicola Mulima, for the Landlord and Tenant Board

HEARD at Toronto: July 22, 2024, by video-conference

ENDORSEMENT

[1] The appellant tenant appeals the decision of Member Hunt of the Landlord and Tenant Board (LTB) dated February 22, 2024 (the Decision), granting the respondent’s application to terminate the tenancy so that the respondent landlord’s daughter can move in to the premises.

[2] This appeal is restricted to questions of law only: s. 210, Residential Tenancies Act, 2006, S.O. 2006, c. 17. This includes issues of procedural fairness. On this appeal, the issues relate to procedural fairness.

[3] Appellate standards apply. The standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Law Society of Saskatchewan v. Abrametz, 2002 SCC 29, at paras. 27 and 30.

[4] The appellant has put forward an affidavit on this appeal but has failed to bring a fresh evidence motion. Much of that evidence is inadmissible, the test for which was fairly put forward by counsel to the LTB. The affidavit contains evidence that was not before the LTB. It contains arguments regarding the evidence and the Decision, and the steps taken after the Decision. However, to the extent that it relates to the allegations of procedural unfairness, I have taken it into account. On that issue, I also have the transcript of the hearing, which I have reviewed.

[5] The respondent has uploaded documents to CaseLines that are also not properly part of the record for this appeal. The appellant further notes that the respondent’s materials were all provided very late and that they include emails about privileged settlement negotiations. I have disregarded the improper evidence put forward by the respondent.

[6] At the LTB hearing, the appellant was represented by a paralegal. The respondent was self-represented. The Member heard considerable evidence and made factual findings, as set out in the Decision. Very briefly, the LTB found that the respondent in good faith required the premises for her daughter, who had been accepted to the University of Toronto, downtown, which otherwise would require a three-hour (round trip) commute.

[7] Both the respondent and her daughter were questioned at the hearing. The appellant testified as well, giving her account of why she submitted that the respondent had ulterior reasons for the application and did not genuinely intend to have her daughter move in. The Member did not find ulterior motives. The Member then considered whether there were any amounts owing and whether there should be relief from the eviction under s. 83(1) of the Act, ordering that the tenancy be terminated as of March 4, 2024, a short extension of time.

[8] The appellant sought a review at the LTB, submitting that her evidence and cross-examinations were rushed, that she would have given more evidence regarding her health and emails between the parties, and that the Member had therefore proceeded on insufficient evidence. Vice Chair Lang reviewed the recording of the hearing and noted that the appellant’s legal representative had cross-examined the respondent and the respondent’s daughter for one hour.

[9] The Vice Chair agreed that at the outset of the appellant’s evidence, the Member had directed the appellant’s legal representative to expedite that evidence. The Vice Chair found that this was reasonable after the legal representative had taken so much of the hearing time in his cross-examinations. The Vice-Chair was not satisfied that there was an error.

[10] On the review, the appellant further submitted that the Member erred in only focusing on some of the evidence and erred in permitting the respondent’s daughter to assist her mother due to language challenges. The daughter had not planned to testify, however, the Member wanted to ask her questions because she had filed a declaration. Given that development and the request that the daughter assist her mother, the Member required that the daughter be questioned first, before assisting her mother. Further, as the hearing transpired, the mother directly answered most of the questions. On review, the Vice Chair agreed that the daughter’s role was not ideal, but that the Member had proposed a fair way to proceed.

[11] On this appeal, the appellant has raised overlapping issues.

[12] The appellant submits that she was denied procedural fairness because her evidence was rushed and she did not fully address all the points she wanted to make. The transcript shows that the Member asked the appellant’s paralegal to make it “a little short” given the time. The paralegal then asked the appellant to respond in her own words and “as briefly as possible”. The appellant then gave her answer, which is set out on about three pages of transcript. Afterward, the Member made some comments and requested final submissions. There was no objection by the paralegal or other statement to the effect that the appellant wanted to say more.

[13] The Member was entitled to control the process, including taking steps to focus the issues and efficiently complete the hearing, provided that the process was fair. Here, the Member took into account the time already taken by the appellant’s paralegal and asked the paralegal to be a little short. This led to the paralegal directing his client to be as brief as possible. The appellant now submits that she wanted to say more about the topics that she did testify about, focusing mainly on her medical difficulties and her questioning of the respondent’s motives. The transcript shows that both issues were raised by the appellant in her evidence. After she completed her response to her paralegal, there was no suggestion that the appellant was not finished. The appellant has not demonstrated that there was procedural unfairness.

[14] Although not a focus in the factum, the appellant submits that it was unfair to proceed with the landlord’s application first, when a prior application she had brought, against the landlord, had not yet been addressed by the LTB. This too falls within the LTB’s control over its proceedings, and it has not been shown to create a procedural unfairness in relation to the Decision.

[15] The appellant’s factum also submits that the role of the respondent’s daughter, in assisting her mother, was procedurally unfair. As set out above, when it became apparent that the Member wanted to question the daughter, the Member set out a procedure to do so in a fair manner. The daughter was questioned first, including by the appellant’s paralegal. The mother was then questioned. She answered most of the factual questions herself. The daughter made what I would call a submission and a summary for her mother. I agree with the Vice Chair that the situation was not ideal. However, the Member set out a procedure that sufficiently addressed the situation.

[16] The appellant also challenges the factual findings and submits that, for example, there was insufficient evidence that the daughter had actually been admitted to the University of Toronto. These are challenges to the factual findings and are not the proper subject matter of an appeal.

[17] At the appeal hearing, the appellant said that she had been hampered in her attempts to get new premises after the Decision because the respondent had not given her a positive reference. In response, the respondent said she would only give a truthful reference. This is not a proper ground of appeal.

[18] This appeal is therefore dismissed.

[19] At the hearing, the appellant requested three months to vacate if the appeal was unsuccessful. The respondent submitted that she would agree to two weeks and noted that the appellant has not paid rent since April. If this failure to pay rent pending appeal had been drawn to the attention of this Court sooner, there would ordinarily have been terms imposed. However, the appeal is now over.

[20] Since the appeal is dismissed, the stay of the LTB Decision pending appeal is also lifted. The appellant shall provide vacant possession by August 9, 2024. The respondent has not put forward any recoverable legal costs. Therefore, there shall be no order as to costs.

Matheson J.

Date: July 25, 2024