Court File and Parties

CITATION: Massoumi v Manos, 2024 ONSC 5115

DIVISIONAL COURT FILE NO.: 173/24

DATE: 20240917

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SAFA MASSOUMI, Appellant/Tenant

AND:

BILL MANOS, Respondent/Landlord

BEFORE: Matheson J.

COUNSEL: Christopher Macleod, for the Appellant/Tenant

Timothy Duggan, for the Respondent/Landlord

HEARD at Toronto: August 28, 2024, by video-conference

ENDORSEMENT

[1] Safa Massoumi appeals the review decision of the Landlord and Tenant Board (LTB) dated February 15, 2023 (the Review Decision), which dismissed the review request (in part) arising from an LTB order dated November 27, 2023 (the Application Decision).

[2] The LTB had decided two applications: an application by the Appellant/Tenant and an application by the Respondent/Landlord. The Tenant’s application sought orders arising from alleged illegal entry and substantial interference with enjoyment based on alleged harassment and inadequate maintenance among other things. The Landlord’s application was for vacant possession based on non-payment of rent.

[3] The Tenant’s application was dismissed as abandoned because the Tenant failed to attend the hearing. The Tenant had requested that the hearing be rescheduled because he received notice of surgery that would take place three days before the hearing date. That request was denied. The hearing of the Landlord’s application proceeded and was granted.

[4] The Tenant sought a review of the Application Decision on the basis that he was not reasonably able to participate in the application hearing. The reviewing Member dismissed the review regarding the Tenant’s application but granted the review of the landlord’s application because the Landlord acknowledged that some of his evidence about the quantum of arrears was inaccurate. The LTB has not yet proceeded with the re-hearing of the landlord’s application apparently awaiting this appeal.

[5] This appeal is limited to questions of law, which include issues of procedural fairness. The standard of review is correctness. Although other issues were also raised, I find that this appeal can be addressed through one issue – the alleged procedural unfairness of proceeding of proceeding in the Tenant’s absence given the medical letters.

[6] By way of brief background, the Tenant had obtained a prior adjournment to retain new counsel that was granted, peremptory to the Tenant. Ultimately, the hearing was rescheduled for November 2, 2023. The Tenant received notice of rotator cuff surgery to take place three days before the hearing date and, on October 2, 2023, submitted a request to reschedule because of the surgery. The medical documentation included a letter from the orthopedic surgeon at the hospital where the surgery was to take place. It was focused on the normal consequences of the surgery, such as saying that the Tenant would be on strong pain medication, should not operate machinery or do any strenuous activity. The physician concluded that recovery would take 6-8 months. A second letter was provided explaining the nature of the injury, resulting pain, and indicating that the surgery had already been postponed twice over the past three years. That physician also gave the above advice but estimated a longer recovery time.

[7] The request to reschedule was not on consent and was denied. The Member considered the medical documents, declining the request because there was “no indication” in the medical documents that the Tenant would be incapable of instructing counsel or participating either virtually or by phone or in his counsel’s office.

[8] The Tenant then obtained another medical letter and made another request to reschedule. The medical letter, from the Tenant’s treating psychiatrist, expressly addressed the impact of the surgery on the Tenant’s ability to participate in the hearing process. The physician opined that the Tenant’s symptoms from a prior head injury would likely return or become amplified with the upcoming surgery and that the Tenant would need an extensive period of recovery to be able to handle the tribunal process and even to instruct counsel, specifically 3-6 months. This second request to reschedule was made too close to the hearing date to be addressed before the hearing.

[9] The Tenant’s counsel attended the hearing on November 2, 2023 and requested an adjournment based on all the medical letters. The Member denied the adjournment. The Member noted the prior adjournment that was granted on a peremptory basis and the issues raised by the landlord. The Member said that the medical letters came from different physicians at different hospitals and spoke about different medical conditions. The Member concluded that the connection that the treating psychiatrist drew between the mental health history and the surgery that would prevent the Tenant from participating in the hearing was “speculative” and a “wholly new reason, never previously mentioned”. The Tenant’s application was then dismissed as abandoned because the Tenant was not there to support his application. The Member proceeded to hear and decide the Landlord’s application, ordered that the tenancy was terminated, and ordered the payment of arrears.

[10] On review, the question was whether the Tenant had reasonably been able to participate in the hearing. In keeping with the predicted recovery time in the third medical letter, the Tenant was present for the review hearing. On the impact of the surgery, the reviewing Member focused on the absence of evidence that the Tenant “attempted to ensure” that the surgery would not conflict with the hearing and dismissed the review of the Tenant’s application. The reviewing Member granted the review of the Landlord’s application because the Landlord admitted that there were errors in his evidence.

[11] The LTB must not only adopt the most expeditious method of determining the questions that arise before it but also do so in a manner that affords the parties with an adequate opportunity to be heard (s. 183, Residential Tenancies Act, 2006, S.O. 2006, c. 17). I find that the Tenant was not provided with an adequate opportunity to be heard and was therefore denied procedural fairness. Other relevant factors were considered, but the Member who dismissed the Tenant’s application superficially rejected the medical evidence, which was the basis for the rescheduling request. I agree that it was important that the hearing date was peremptory, but a current significant medical problem could provide a reason that the hearing should nonetheless be rescheduled, depending on the circumstances.

[12] Here, the third letter directly addressed the LTB’s reason for rejecting the first request to reschedule due to the surgery. It was unfair to superficially reject that opinion as “speculation” because it came from a physician connected to a different hospital and referred to an earlier medical problem as well as the surgery. And it appears that the reviewing member simply accepted that conclusion.

[13] I do not suggest that an adjudicator must always accept a medical opinion. Medical documentation must be examined in context and may properly be found insufficient. That is what happened in response to the earlier request to reschedule. But the third letter, from a treating physician, was a specific response to the deficiency addressed in the earlier ruling. It addressed that deficiency and provided the needed background for the opinion.

[14] I therefore conclude that the ruling on the Application Decision was reached in a manner that was procedurally unfair, resulting in the dismissal of the Tenant’s application. Since it was not corrected on review, that decision is also undermined.

[15] The appeal is granted. The Tenant’s application shall be remitted back to the LTB for a hearing. The Landlord shall pay costs of the appeal fixed at $1,000 all inclusive.

Matheson J.

Date: September 17, 2024