Court File and Parties

DIVISIONAL COURT FILE NO.: 342/23

DATE: August 22, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Jedadiah Drummond Appellant

– and –

Ridgeford Charitable Foundation Respondent

(Self Represented)

Spencer Toole, for the Respondent

HEARD: March 5, 2024

REASONS FOR DECISION

SHORE J.

[1] The Appellant, Jedadiah Drummond, (the “Tenant"), appeals a decision of the Landlord and Tenant Board (the “Board”) dismissing his request to extend the time to review an eviction order. The Tenant is also appealing the eviction order.

[2] For the reasons that follow, the Tenant’s appeals are dismissed.

Background:

[3] The Respondent, Ridgeford Charitable Foundation (the “Landlord”), owns 23 Thunder Grove, Toronto, Ontario (the “Property”). The Tenant resides in unit 318 at this Property.

[4] The Landlord brought an application before the Board to terminate the tenancy of the Tenant for non-payment of rent.

[5] The Board scheduled the hearing of the application for February 28, 2023. The Board served the Tenant with notice of the hearing.

[6] Two days before the hearing, the Tenant submits that he sent an email to the Board and the Landlord, advising that he was not available on February 28, 2023, to attend the hearing. No reasons were provided in the email other than he wanted “a chance to prepare.”

[7] The Tenant did not attend the hearing and did not send anyone on his behalf. The hearing proceeded on February 28, 2023, in the Tenant’s absence.

[8] The Board released its decision on March 24, 2023 (the “eviction order”). The Board found that the Tenant was in arrears of $4,204 as of the date of the hearing (and $6,309 as of the date of the eviction order). The ongoing rent was $1,919, due on the first day of each month. The Tenant was given until April 4, 2023, to pay the arrears, failing which the tenancy was terminated and the Tenant was to vacate the premises.

[9] The Tenant did not pay the arrears of rent, and on April 27, 2023, the Tenant sought an extension of time to seek a review of the eviction order. This request was denied in an order dated May 1, 2023 (the “first extension order”).

[10] On May 5, 2023, the Tenant’s son sought an extension of time to seek a review of the eviction order. This request was also denied, in an order dated May 19, 2023 (the “second extension order”).

[11] The Tenant appeals these three orders (the eviction order and the two extension orders), submitting that the Board made errors in law and there was a lack of procedural fairness to the proceedings.

Standard of Review:

[12] An appeal from an order of the Board lies to this court only on a question of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210(1). This court does not have jurisdiction to hear an appeal on a question of fact, or of mixed fact and law: see Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.), at para. 26; Zouhar v. Salford Investments Ltd., 2008 27484 (Div. Ct.), at paras. 8-9.

[13] The Supreme Court of Canada clarified the difference between questions of law, fact, and mixed fact and law, in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35: “Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”

[14] The applicable standard of review on questions of law is correctness.

[15] No assessment of the standard of review is necessary where the requirements of natural justice and procedural fairness are at issue. The court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to, by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly: London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.), at para. 10; P.D. v. The Children's Aid Society of the Region of Peel and K.D., 2022 ONSC 1817, at paras. 8-10.

[16] In hearing the appeal, the court must consider that the Board is a specialized tribunal, and the legislature has deliberately limited appeals from its decisions to, inter alia, ensure a process that is streamlined, timely and cost-efficient.

[17] The Board is entitled to control its own process and its procedural choices are entitled to deference. This is because administrative tribunals, including the Board, have experience and expertise balancing the need to ensure fair participation by all parties with the need to ensure that the issues are dealt with in a timely and efficient way: see Wei v. Liu, 2022 ONSC 3887, at para. 9.

[18] In considering each of the orders under appeal, this court must determine:

(a) Whether the Board made an error in law; and/or

(b) Whether the appellant was denied procedural fairness in regard to the eviction order and the extension orders.

Analysis:

1. The eviction order

[19] The Tenant does not argue that the Board made an error of law in the eviction order. The Tenant submits that he is appealing the eviction order due to a lack of procedural fairness, in that the hearing proceeded even though he was not present.

[20] On February 26, 2023, two days before the hearing of the application, the Tenant submits that he sent an email to the Board advising that he was not available on February 28, 2023. He did not provide any reason for not being available.

[21] The hearing proceeded on February 28, 2023, in accordance with s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which provides that where notice of a hearing has been given to a party in accordance with the SPPA, if a party does not attend, they may proceed in the absence of the party. The Board found that the Tenant had received proper notice of the hearing and they proceeded with the hearing in his absence.

[22] Further, the Landlord and Tenant Board’s Rules of Procedure (the “Rules”) govern all matters before the Board. Rule 21.1 provides that requests for rescheduling can only be made with the consent of all the parties, and not less than five days before the scheduled hearing date. The appellant did not meet this requirement.

[23] Rule 21.2 of the Rules states that notwithstanding the requirements of r. 21.1, a request to reschedule a hearing may be granted if the Board is satisfied that it was not reasonably possible for the party making the rescheduling request to comply with r. 21.1. Rule 21.8 provides relevant factors that the Board should consider in a request to reschedule a hearing, including reasons for the adjournment.

[24] As set out in Kalin v. College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.), at paras. 30-31 (adopted in Thomson v. Sisters of St. Joseph, 2010 ONSC 2337, at para. 13):

[30] Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. Generally speaking, decisions made in the exercise of discretion are entitled to considerable deference, provided the discretion is exercised judicially and in accordance with principles of fairness and natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560 at para 18; Baker, supra, at para 53.

[31] A Tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party: Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 1669 (ON SC), 99 D.L.R. (3d) 165 (Ont. Div. Ct.). However, in exercising its discretion as to whether to grant an adjournment, a Tribunal is not permitted to act arbitrarily. The tribunal may take into account the public interest and the interest of the tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means: Re Flamboro Downs, supra; Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134 (1993), 1993 9380 (ON SCDC), 103 D.L.R. (4th) 437 (Div. Ct.); Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 5198 (Div. Ct.) , aff’d [2003] O.J. No. 4233 (C.A.).

See also Wei, at para. 9.

[25] However, the Tenant provided no reason to the Board for his request to adjourn the hearing, other than stating in an email that he wanted time to prepare. As set out in the Board’s reasons, “There was no record of a request to adjourn the hearing.” The Board followed its own procedure and exercised its discretion based on the information (or lack of information) before it. I see no reason to interfere with the Board’s exercise of its discretion. I do not find there was a lack of procedural fairness.

[26] The Board released its decision on March 24, 2023. The Board found that the Tenant had failed to pay rent, and that the arrears owing as of February 28, 2023, were $4,204. The Board made an order terminating the Tenant’s tenancy but provided the Tenant an opportunity to void the order if payments were made by April 4, 2023. The Tenant did not avail himself of this opportunity.

2. The first extension order

[27] The Tenant chose to seek a review of the eviction order. However, the Tenant missed the deadline to request a review from the Board.

[28] The Board can extend the time to seek a review. Rule 26.4 provides that a request to review must be made within 30 days of the order being issued. If a request is not made within 30 days, a request can be made to extend time.

[29] So, the Tenant requested an extension of time to request a review of the eviction order. This request was denied. The Tenant submits that the Board made an error of law in refusing to extend the time to seek a review.

[30] Rule 16 of the Rules addresses requests to extend or shorten time. Rule 16.4 indicates that the following factors may be considered in deciding whether to grant a request to extend time:

a. The length of the delay, and the reason for it;

b. Any prejudice a party may experience;

c. Whether any potential prejudice may be remedied;

d. Whether the request is made in good faith; and

e. Any other relevant factors.

[31] In Chin Yong Ahn v. 4900 Bathurst Street Ltd, 2014 ONSC 7325 (Div. Ct.), the tenant failed to attend the last day of a three-day hearing. He submitted that he got the date wrong and thought they were concluding the following day. The Board member noted that "[a]lthough being reasonably able to participate must be interpreted broadly, it is not sufficient for a party to merely state that they were not able to participate in the hearing": at para. 20. A party must explain why they were unable to participate so that the Board assessing the request for review can determine whether or not the party was reasonably able to participate in the hearing. The appellant failed to provide an explanation and the Board continued in his absence. The decision of the Board was upheld on appeal.

[32] Similarly, the Tenant gave no reason for his delay in his request to extend the time. When the Board tried to assess the Tenant’s request by asking for further details with respect to the Tenant’s delay, the Board found that the Tenant did not offer a reasonable explanation for the delay.

[33] On May 1, 2023, the Board denied the request to extend the time, finding the reason given by the Tenant to be “insufficient”. The Board found that the Landlord would be “denied its interest in finality for no reason other than the Tenant wishes it” if the Board were to grant the Tenant an extension of time “without being given any reason for the delay”.

[34] The Board considered the correct test (as set out in r. 16.4) and therefore did not make an error of law.

[35] For similar reasons as set out above, I do not find that there was a lack of procedural fairness. Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. The decision to deny the extension of time was not an arbitrary decision, based on the information before the Board at the time.

3. The second extension order

[36] On May 3, 2023, the Tenant’s son, Elijah Drummond, a person affected by the eviction order, filed a request to extend the time to request a review of the eviction order. He submitted that he was unaware of much of the proceeding “as my father had shielded much of this from me”.

[37] On May 19, 2023, the Board denied the request and confirmed the eviction order. The Board found that the Tenant’s omission to advise his son represents a lack of due diligence on the Tenant’s part.

[38] The Tenant failed to point to any error in law by the Board in exercising its discretion to deny the second extension order. There was no breach of procedural fairness.

New Information:

[39] It was only when the Tenant commenced this appeal in the Divisional Court that he disclosed for the first time that he could not attend the hearing on February 24, 2023, because he was incarcerated at the time of the hearing. He was incarcerated from February 14, 2023, until March 1, 2023.

[40] However, at no time in advance of the hearing did the Tenant disclose this information to the Board or to the Landlord. As set out above, he did not offer this as a reason as to why he could not attend on February 28 for the hearing.

[41] His argument cannot succeed. The appellant did not raise the issue at any of the Board hearings and did not advise the Board of his reason for not attending the hearing. It cannot be an error of the Board not to consider a matter that was never put before it: see Baig v. Williams, 2016 ONSC 5380 (Div. Ct.), at para. 9.

[42] Had the Tenant given any reason for his inability to attend, the outcome may have been different. But he did not. That is the problem of the Tenant, not the Landlord or the Board.

[43] The Board made no error in proceeding with the hearing based on the information it had before it at the time. The Board made no error in denying the request to extend the time to appeal based on the information it had before it at the time.

[44] Even if the new information is relied on at this appeal, I would still dismiss the appeal. While the Tenant was incarcerated at the time of the hearing, he was released from incarceration well prior to the eviction order being released. Yet the Tenant offered no reason why he was late in asking for a review of the eviction order.

[45] There were mechanisms available to the Tenant to void the order: he could have paid the arrears of rent or sought a timely review of the order.

[46] The Tenant did not pay the arrears of rent. He chose to seek a review of the eviction order.

[47] The eviction order was released on March 24, 2023, well after the Tenant’s release from jail on March 1, 2023. However, the Tenant missed the deadline to seek a review from the Board. He offers an insufficient reason for his delay to seek a review. The incarceration did not affect the Tenant’s ability to seek a review of the decision in a timely manner. He still did not advise the Board about his incarceration.

[48] Finally, the Tenant’s incarceration did not impact his ability to tell his son about the eviction order. The Tenant was no longer incarcerated when the eviction order was released.

Conclusion:

[49] For these reasons, the appeal is dismissed.

[50] The Landlord is seeking costs of $9,258.77. The Landlord was successful in opposing the appeal. I have considered the factors set out in r.57.01 and I find that costs of $7,500 payable from the Tenant to the Landlord to be reasonable in in the circumstances.

[51] Order to go as follows:

(a) The appeal is dismissed.

(b) The appellant shall pay the respondent costs in the sum of $7,500 within 30 days, inclusive of disbursements and HST.

SHORE J.

Released: August 22, 2024

DIVISIONAL COURT FILE NO.: 342/23

DATE: August 22, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Jedadiah Drummond Appellant

– and –

Ridgeford Charitable Foundation Respondent

REASONS FOR DECISION

SHORE J.

Released: August 22, 2024