CITATION: Turner v. Dong, 2024 ONSC 5081
OSHAWA DIVISIONAL COURT FILE NO.: DC-23-1430
DATE: 20240913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA TURNER
Tenant/Appellant
– and –
GORDON DONG and KANTILAL CHUNILAL MODI
Landlords/Respondents
Marc Goldgrub, for the Tenant/Appellant
Paul Portman, for the Landlords/Respondents
Linda Naidoo, Counsel for the Landlord and Tenant Board
HEARD: August 27, 2024
REASONS FOR DECISION
CHARNEY J.:
[1] The Appellant, Dana Turner, (the “Tenant”), appeals a decision of the Landlord and Tenant Board (the “LTB”) dated September 27, 2023, granting the Respondents’, Gordon Dong and Kantilal Chunilal Modi, (the “Landlords”), application to terminate the tenancy because the Landlords had entered into an agreement of purchase and sale of the rental unit and the purchaser in good faith required possession of the rental unit for the purposes of residential occupation.
[2] The Tenant also appeals from the November 7, 2023 Review Order of the LTB, which denied the request to review the September 27, 2023 Order on the basis that there was no serious error in the order or proceeding before the LTB.
Facts
[3] The application to the LTB was a joint application by the vendor and the purchaser of the rental unit. The application was brought as an “N12” application. An N12 application is brought under s. 49 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, (“RTA”), which provides:
49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,
(a) the purchaser;
(b) the purchaser’s spouse;
(c) a child or parent of the purchaser or the purchaser’s spouse…
[4] In accordance with s. 49 of the RTA, a landlord may serve an N12 notice on behalf of a purchaser who intends to live in the unit after the sale is completed and the tenant vacates. Alternatively, a purchaser may wait until the sale is completed, at which time they become the landlord, enabling them to serve an N12 notice for landlord’s own use under s. 48 of the RTA.
[5] The Landlords served the Tenant with the N12 Notice for the Purchaser’s own use on September 27, 2022. The hearing before the LTB proceeded by video conference on May 4, 2023.
[6] At the outset of the hearing, the Tenant raised a preliminary objection, requesting that the Landlords’ application be dismissed because the residential complex contained more than three units, and therefor the N12 application was invalid.
[7] The LTB heard evidence from the parties and ruled on this preliminary issue. The Tenant testified that the house contained four separate residential units. The LTB summarized her evidence as follows:
The Tenant testified that the building was built by her father, and that over time her father had renovated the building to hold a total of four separate residential units. The Tenant said that the main house had an upstairs and a downstairs residential unit. The Tenant described the evolution and progression of the building as consisting of a main house and a garage that was renovated into a residential unit and then a second garage was constructed and subsequently renovated into a residential unit. These two units each have an exterior door and an interior fire door between them and a number identifying the unit.
[8] The unit had only one municipal address, and mail was delivered to a single mailbox. There was a single tenancy agreement between the Landlords and the Tenant, and the Tenant permitted unidentified persons, including her husband and daughter, to live in the other units. These persons paid rent to the Tenant, who paid one rental amount each month to the Landlords. None of the other occupants attended the hearing, and the Tenant refused to reveal the names of the other occupants or the monthly rental amounts that she collected from the other occupants.
[9] The Tenant testified that she was in possession of leases between herself and the other occupants, but she refused to provide these leases to the Landlords and did not provide them to the LTB at the hearing.
[10] The Tenant also put into evidence an Agreement of Purchase and Sale (APS) from 2015 which described the house as a “4-plex”, and a real estate listing from 2022 which described the property as a “Sidesplit House…Plus 3 Self-contained apartments”
[11] The Landlords submitted as evidence an email from the Town of Stouffville that confirmed the zoning restrictions on the property as follows:
Only one single detached dwelling is permitted on this property. A second suite is permitted in a lawful single detached building.
[12] In addition, the Landlords submitted the APS from 2022, which refers to only one existing tenant, “Ms. Dana Turner”.
[13] The LTB held that the only tenancy agreement was between the Landlord and the Tenant. The Tenant did not sublet the unit to any other tenant because s. 2(2) of the RTA provides that a reference to subletting a rental unit refers to situations in which the tenant “vacates the rental unit” and gives one or more persons the right to occupy the rental unit for a fixed term until the tenant resumes occupancy of the rental unit after a specified date. Since the Tenant resided in the rental unit, there could be no subtenancy within the meaning of the RTA.
[14] The LTB concluded:
On the basis of the evidence before me I find that there is a historic tenancy agreement, described most recently in the August 27, 2022 Agreement of Purchase and Sale, between the owner of the property and the Tenant D Turner which does not describe more than one rental or residential unit. The Tenant confirmed that she is the sole individual who pays rent to the Landlord G Dong, and that she is not in arrears of rent. The Tenant confirmed that there is one address for the purposes of Canada Post mailing and that the Tenant distributes the mail to the other occupants.
I am not satisfied that the Tenant has established that there are more than three residential units at this address. While members of the Tenant’s family may live in portions of this large rental unit and pay her money in exchange, that is not sufficient to result in a finding that there are more than three separate residential units.
[15] Accordingly, the LTB concluded that there was only one lease, one tenant, one rental unit and one address for the property.
[16] Following the LTB’s ruling on the number of units, the Tenant requested that the hearing be adjourned to give the Tenant time to adequately prepare for the hearing. The Tenant explained that she was advised by the Tenant Duty Counsel that she would succeed on her preliminary objection to the number of units, and so she was not prepared for the hearing.
[17] The LTB denied the adjournment request, noting that the Tenant had received notice of the N12 Application on September 27, 2022, and that:
[T]he Tenant was suitably prepared with multiple requests to dismiss the Landlords’ application. On the balance of probabilities, I do not find it probable that the Tenant is unprepared to proceed with a hearing, therefore the Tenant’s request for an adjournment is denied.
[18] Finally, the LTB accepted the purchaser’s evidence that he intended to move into and live in the unit.
[19] The LTB concluded, at para. 64:
I find that the Landlords have proven that:
o the residential complex contains three or fewer units.
o the Landlord K Modi has entered into an agreement of purchase and sale of the residential complex.
o the purchaser G Dong in good faith requires possession of the rental unit for the purpose of their own residential occupation.
and therefore, the Landlords’ application for termination of the tenancy will be granted.
[20] On November 7, 2023, the Tenant’s review request was dismissed for, inter alia, the following reasons:
The review request appears to disagree with the Member’s determination that she was not satisfied that the residential complex contains more than three residential units. This determination was reasonable based on the totality of the evidence given at the hearing.
The review request states that the Tenant requested an adjournment and was denied. It appears this may be a submission that the denial of the adjournment request was a serious error. The Tenant’s request for an adjournment was on the basis that: (a) she was not prepared to proceed with the hearing of the merits because she assumed the application would be dismissed; and (b) she required time to obtain legal representation. The Member then asked the Tenant when she received the Notice of Hearing. The Tenant stated that she received it in mid to late April. It was reasonable to deny the request. It was not reasonable for the Tenant to assume that she would succeed in her preliminary issue and the Tenant had sufficient time to prepare, as evidenced by how much she prepared for the preliminary issue. The Notice of Hearing was emailed to the Tenant on March 20, 2023 for a hearing that took place on May 4, 2023. This was sufficient time to obtain legal representation.
Issues
[21] The Tenant appeals the decision of the LTB, arguing that the LTB erred in finding that the property contained three or fewer units. She argues that the Landlords “misled” the LTB, and that she was denied procedural fairness because the LTB refused an adjournment and denied her the opportunity to show the LTB the units by doing a “video walkthrough” of the property.
[22] The Tenant has brought a motion to adduce fresh evidence that she alleges demonstrates that the property had more than three residential units.
Standard of Review
[23] I adopt the following summary of the standard of review set out by Shore J. in her decision in Jedadiah Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658, at paras. 12 – 18:
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.
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 the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.”
The applicable standard of review on questions of law is correctness.
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.
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.
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.
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
i) Fresh Evidence Motion
[24] The Tenant brought a motion for an order admitting fresh evidence in this appeal. The proposed fresh evidence is:
a. Tenancy agreements pertaining to the Property from between 2008-2021;
b. Emails between the Appellant and the Second Respondent from between March – September 2021 pertaining to the leases for the units;
c. Text messages between the Appellant and the Second Respondent from January 2021 pertaining to her management of the Property;
d. Text messages between the Appellant and the Second Respondent from September 2021 – July 2022 pertaining to the leases for the units;
e. Text message from real estate agent Eva Wong to the Appellant regarding the First Respondent and an inspector inspecting the Property and its “apartments” from July 9, 2022;
f. Photographs of the Property and its various units;
g. Parcel Register for the Property; and
h. The Respondents’ L2 application dated November 29, 2022
[25] The Tenant has sworn an affidavit explaining that when she appeared before the LTB she was self-represented, and was “not aware of the importance of the Lease Agreements, photographs of the various residential units…and other fresh evidence to this matter, and had therefore not submitted it”.
[26] This Court may admit fresh evidence in a civil appeal under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under the traditional test in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, reaffirmed in Barendregt v. Grebliunas, 2022 SCC 22, at paras. 27 and 34, a party seeking to adduce fresh evidence in a civil appeal must show that:
a. The proposed evidence is credible, in that it is reasonably capable of belief;
b. The proposed evidence is relevant to a decisive or potentially decisive issue in the trial;
c. The proposed evidence could not have been, through due diligence, adduced at trial; and,
d. If admitted and believed, the proposed evidence could have been expected to have affected the result at trial.
See also: Schram v. Thompson, 2022 ONSC 6922, at para. 19.
[27] The Tenant has failed to meet this test. First, all of the evidence was available to the Tenant at the time of the LTB’s hearing. Indeed, some of this evidence, such as the “tenancy agreements pertaining to the property” was evidence that the Tenant possessed on the date of the LTB hearing but refused to provide to the Landlords or the LTB.
[28] The requirement for “due diligence” is the same whether a litigant is represented by counsel or self-represented. Being self-represented is not a ground for admitting fresh evidence on appeal.
[29] An appeal in this court is not a de novo hearing on the merits. Nor is it an opportunity to cure defaults that existed at the time of the hearing before the LTB: 592182 Ontario Limited v. Red, 2024 ONSC 4935, at para. 5. In the absence of an error of law before the LTB, there is no basis for this court to intervene: Solomon v Levy, 2015 ONSC 2556, at para. 33, and cases cited therein.
[30] Second, the proposed fresh evidence is not relevant to the issues on this appeal. The number of units in a building is a question of fact, or, at best, a mixed question of fact and law. As the Divisional Court stated in Kurdina v. Toronto Community Housing Corporation, 2021 ONSC 544, at para. 9:
With this evidence, the appellant seeks to challenge findings of fact made by the Board. However, an appeal lies to this Court only on a question of law. None of this evidence can assist this Court in determining whether there has been an error of law in the initial decision.
[31] Finally, the proposed evidence could not have been expected to have affected the result.
[32] The “tenancy agreements pertaining to the property” are agreements between the Tenant and unknown persons (the names have been redacted). The amount of rent to be paid has also been redacted. These are not agreements between the Landlord and a tenant. Two of the four “tenancy agreements” attached are from 2009. There is no evidence that these agreements are current.
[33] The emails between the Tenant and the previous owner references “a whole file of leases dated from 1999 to 2009”. There is no indication as to the number of leases or units or whether any of these leases from 1999 to 2009 were current in 2023.
[34] While the LTB did not have the benefit of the photographs proposed as fresh evidence, the LTB heard the Tenant’s detailed description of the number of units in the building, her description of each of the units, how each unit was accessed, the number of tenants, and the tenancy arrangements between the Tenant and the unidentified tenants (including her husband and daughter) from whom she collected rent.
[35] The reasons for the LTB’s decision did not relate to the Tenant’s description of the property, but, rather, related to the number of legal units in the property and the fact that there was only one tenancy agreement between the Landlord and the Tenant.
[36] Nor do I accept the Tenant’s contention that the Landlords’ evidence amounted to fraud. The LTB was fully aware of the factual dispute between the Tenant and the Landlords. The Tenant’s evidence was based on the design of the property and her allegation that she had leases with unidentified persons who lived on the property and paid her rent. The Landlords’ evidence was based on the single existing tenancy agreement between the Landlords and the Tenant, the email from the Town of Stouffville that confirmed the zoning restrictions on the property, and the description of the property in the 2022 APS. None of the Landlords’ evidence was fraudulent.
ii) Adjournment Request
[37] Matters of scheduling and deciding whether to grant an adjournment involve an exercise of discretion and are entitled to considerable deference: Kalin v. College of Teachers (2005), 2005 18286 (ON SCDC), at para. 13. An administrative tribunal such as the LTB enjoys a wide latitude in deciding whether to grant or refuse an adjournment of a scheduled hearing: Sterling v. Guillame, 2021 ONSC 1160, at para. 29.
[38] In Solomon v. Levy, 2015 ONSC 2556, the Divisional Court stated, at paras. 39 and 40:
While the granting of adjournments is in the discretion of the Board member hearing an application, the general approach of the Board is informed by section 183 of the Act, which directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter”.
Accordingly, the Board member must take into account the public interest in resolving a case as soon as possible. The key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing.
[39] In the present case, there is no basis to interfere with the LTB’s exercise of discretion in refusing to grant an adjournment. The LTB acceded to the Tenant’s request to hear the number of units issue as a preliminary issue. It had no obligation to do so. It could have required all issues to be addressed without making any preliminary rulings. The LTB fairly considered and rejected the Tenant’s reasons for seeking an adjournment after the preliminary ruling was made. A party to a proceeding cannot expect an adjournment if a preliminary ruling does not go their way. The party must be ready to proceed with the balance of the case.
[40] In the circumstances of this case, it cannot be said that, by denying the Tenant’s request for an adjournment, the LTB conducted itself in an arbitrary fashion or denied the Tenant natural justice.
iii) The proposed “video walk-through”
[41] During her cross-examination, the Tenant offered to take a “video walkthrough” of the property:
Q. Did you know that the zoning does not permit this property to have multiple dwellings?
A. Did you hear what I told you that each new owner of the property must contact the town and register the units. That…
Q. I appreciated your understanding of the law, but I am referring to actually Zoning By-law 3.28 of the ...
A. You know, why don’t we just take the camera and I can walk through each unit and you can see that somebody lives in each unit? How simple would that be? We could do that right now. And that would prove that there’s more than three units. That’s all we’re looking for.
Q. Ms. Turner, under your definition there are three units, correct.
A. There’s more than three.
[42] The Tenant repeated this answer again later in her cross-examination:
Q. Ms. Turner, would you agree that a home can have multiple entrances?
A. All the units have their own entrances. I can show you on camera right now.
[43] It is clear that the Tenant’s offer to do a video walkthrough was not a formal request to the LTB, but an answer to a question posed by opposing counsel during her cross-examination. The Tenant did not make this request when she gave her evidence in chief, nor did she make this request after the cross-examination was completed.
[44] It must be remembered that it was the Tenant who raised the number of units as a preliminary issue at the hearing. She had the initial onus to present her case.
[45] After the cross-examination concluded, the Chair gave the Tenant an opportunity to make further submissions on the issue of the number of units:
Q. Is there anything else that you would like to submit on the preliminary issue of the number of units?
A. No, I think that’s fine. Thank you.
[46] In these circumstances, there was no denial of natural justice. The Tenant had a full opportunity to introduce all of her evidence in chief. It would not be reasonable for the LTB to interpret her answers on cross-examination as a formal motion to introduce video evidence. Counsel for the Landlords acted appropriately in asking the Tenant to simply answer his questions rather than offer to present additional evidence that she could have introduced when she gave her evidence in chief.
Conclusion
[47] I appreciate that the Tenant was self-represented, and might have presented her case differently, and perhaps more effectively, had she had counsel at the LTB hearing. That, by itself, is not a ground of appeal. Given the factual findings made by the LTB, the Tenant has identified no legal errors or denial of natural justice.
[48] For these reasons, the appeal is dismissed. The stay of the eviction order of the LTB is hereby lifted.
[49] If the parties are not able to agree on costs, the Landlords may serve and file written costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the date of this decision. The Tenant may file reply submissions on the same terms within a further 15 days.
Justice R.E. Charney
Released: September 13, 2024
CITATION: Turner v. Dong, 2024 ONSC 5081
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA TURNER
Tenant/Appellant
– and –
GORDON DONG and KANTILAL CHUNILAL MODI
Landlords/Respondents
REASONS FOR DECISION
Justice R.E. Charney
Released: September 13, 2024