Court File and Parties

CITATION: Amstar Pool LLP v. Boothe, 2024 ONSC 5613

DIVISIONAL COURT FILE NO.: 156/24

DATE: 20241009

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Amstar Pool LLP, Appellant

AND:

Dewayne Boothe, Respondent

BEFORE: Davies J.

COUNSEL: Rob Winterstein, for the Appellant

Karen Sanchez, for the Respondent/Moving Party

HEARD: September 25, 2024

Endorsement

[1] Dewayne Boothe has lived in an apartment owned by Amstar Pool LLP since September 1, 2022.

[2] On August 25, 2023, Mr. Boothe filed an application before the Landlord and Tenant Board claiming that Amstar Pool was unlawfully overcharging him for rent. Mr. Boothe sought an order requiring Amstar to reimburse him $1,258.

[3] The Board convened a hearing on January 23, 2024. Nobody appeared on behalf of Amstar. On February 7, 2023, the Board granted Mr. Boothe’s application and ordered Amstar to reimburse him $1,184 for the illegal rent collected and $48 for his filing fees.

[4] Amstar requested a review of the February 7, 2023 decision on the grounds that it was not reasonably able to participate in the January 23, 2024 hearing. The Board dismissed Amstar’s request for a review. The Board found that Amstar had not established that it exercised reasonable diligence as a party to the proceedings.

[5] Amstar appeals the decision on the merits of Mr. Boothe’s application and the review decision. Amstar also brought but abandoned a motion to adduce fresh evidence on the appeal.

[6] Amstar can only appeal the Board’s decisions on a question of law: Residential Tenancies Act, s. 210. I do not have jurisdiction to consider questions of fact or questions of mixed fact and law: Devenne v. Sedun, 2020 ONSC 6141(Div. Ct.). Questions about what legal test the Board ought to have applied are questions of law. Questions related to procedural fairness can also be questions of law. Questions about what took place between the parties are questions of fact. And questions about whether the facts satisfy the legal test are questions of mixed fact and law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.

[7] In relation to the substantive appeal, Amstar argues the Board applied the wrong legal test when deciding whether Amstar overcharged Mr. Boothe. Amstar points to the fact that the Board referred to the wrong section of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 when deciding whether Mr. Boothe had been overcharged and should be reimbursed.

[8] One of the issues the Board considered was whether Mr. Boothe’s rent was lawfully increased because he was given use of a parking space. Section 123(1) of the Act says a landlord may increase the rent charged to a tenant at any time if the landlord and the tenant agree that the landlord will add a parking space to the tenant’s occupancy of the rental unit. The Board found, “there is no evidence before me that the Tenant agreed to increase the rent charged for a parking spot.” The Board referenced s. 121(1)(b) of the Act, not s. 123(1) of the Act.

[9] Amstar argues that s. 121(1)(b) of the Act has no application in this case and it was a legal error for the Board to refer to s. 121(1)(b) instead of s. 123(1). I do not agree.

[10] Substantively, sections 121 and 123 of the Act are similar. Both provisions deal with circumstances in which the landlord can increase the rent in exchange for an additional service or amenity that is being or will be provided. Importantly, both provisions require proof of an agreement between the landlord and tenant and proof of an addition service or amenity. Section 121(1)(b) says a landlord and tenant may agree to increase the rent above the guidelines prescribed in the Act if the landlord has provided or undertakes to provide “a new or additional service in exchange for the rent increase.” Section 123 allows the landlord to increase the rent at any time if the landlord and tenant agree that access to a parking space (or another prescribed service) will be added to the rental agreement.

[11] The reasons of the Board for granting Mr. Boothe’s application do not disclose a legal error in the test to be applied. The Board decided how much rent Mr. Boothe should have been charged. The Board considered whether Mr. Boothe had agreed to an increase in his rent beyond what is in his lease agreement to reflect the fact that he has access to a parking spot and decided he had not. For each month the Board decided whether Mr. Boothe was charged more than the required rent. The Board applied the right legal test even if the wrong section was cited.

[12] Counsel for Amstar conceded during oral argument that the outcome of the hearing would not have been different if the Board referred to the right section of the Act. Appeals are not a line-by-line, word-by-word hunt for error. The Board’s reasons must be read holistically. And when read as a whole, the reasons disclose no legal error in the Board’s analysis of whether and how much Mr. Boothe was overcharged. Amstar’s appeal from the January 23, 2024 decision of the Board is, therefore, dismissed.

[13] Amstar also appeals the Board’s decision to deny its request for a review of the February 7, 2024 decision. I would not give effect to this ground of appeal either.

[14] In its request for a review, Amstar submitted evidence that on January 18, 2024, its legal department prepared a list of upcoming hearings. Mr. Boothe’s hearing was not on that list “due to a glitch in the system.” The request for a review also states that on January 23, 2024 – the date of the hearing of Mr. Boothe’s application – Amstar’s paralegal had no access to their computer server because of problems with their internet.

[15] Amstar argues that the Board erred in rejecting its explanation for why nobody appeared on its behalf at the hearing. The problem with this argument is the Board did not reject Amstar’s explanation. The Board accepted the paralegal’s evidence that, because of an internal glitch, this matter was not on the paralegal’s list. Nonetheless, the Board found that without further evidence to explain the glitch, “the Landlord has not demonstrated that it exercised reasonable diligence to be aware of the January 23, 2024 hearing date.”

[16] In the February 7, 2024 decision on the merits of Mr. Boothe’s application, the Board made a factual finding that Amstar had been properly served with the notice of hearing by the Board and, therefore, knew the date for the hearing. In its request for a review, Amstar did not challenge that finding. Amstar did not argue, for example, that it had not received notice of the hearing date or that it did not know the date for the hearing. Rather, the issue was that Amstar’s legal representative did not know about the hearing and could not access the hearing because of computer problems.

[17] The Board applied the right test to determine whether Amstar was reasonably able to participate in the proceedings. The Board held, “A party to a Board application is required to exercise reasonable diligence to be aware of and to attend the scheduled Board hearing.” That is a correct statement of the law and reflects the Board’s responsibility to manage its own processes efficiently. A lack of diligence is a valid reason to refuse to set aside an order when one party failed to appear at the original hearing. If the party seeking review did not exercise due diligence, they cannot demand that the Tribunal hold a second hearing: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 at para. 8. And the burden is properly on the party requesting the review to establish they exercised diligence to be aware of and attend the hearing.

[18] Amstar’s primary complaint is with the Board’s finding that the evidence submitted in the review application did not satisfy the diligence requirement. That is a question of mixed fact and law. It is not a question of law. The Board made no legal error in finding that Amstar had not met its burden of demonstration that it had acted diligently and made no legal error dismissing Amstar’s request for a review. Amstar’s appeal of the review decision is, therefore, also dismissed.

[19] As the successful party on this appeal, Mr. Boothe is entitled to costs which shall be fixed at $3,500 inclusive of HST.

Davies J.

Date: October 9, 2024