CITATION: Glonczi et al v. Dupont/Lansdowne Holdings Inc., 2024 ONSC 5645
DIVISIONAL COURT FILE NO.: 149/24
DATE: 20241016
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Lajosne Glonczi and Gabor Glonczi
Appellants
– and –
Dupont/Lansdowne Holdings Inc.
Respondent
E. Roeper, for the Appellants
N. Mulima, for the Landlord and Tenant Board
No one appearing, for the Respondent
HEARD via videoconference at Toronto: October 8, 2024
O’Brien J.
REASONS FOR DECISION
Overview
[1] The appellants are tenants who have been evicted from their rental unit. They appeal two orders of the Landlord and Tenant Board. They did not attend the first hearing at the Board, which resulted in an order dated March 10, 2023. The Board ordered the termination of the tenancy because the tenants owed rental arrears of more than $10,000.
[2] The tenants are refugees from Hungary who speak minimal English. They say they only became aware they may be evicted four days before the sheriff attended to enforce the eviction on April 14, 2023. The eviction proceeded but they requested a review of the March 10 order. In the meantime, the Board issued an interim order prohibiting the landlord from re-renting the unit. The review hearing was adjourned because of scheduling overflow. The tenants assert that the landlord re-rented the unit on July 1, 2023 in contravention of the interim order.
[3] The review hearing took place on October 26, 2023. The Board refused the request to review because it concluded it was “highly improbable” the tenants did not receive any of the correspondence sent by the landlord and the Board about the hearing. The Board therefore was not satisfied the tenants were not reasonably able to participate in the proceeding. The Board also cancelled the interim order.
[4] The tenants submit:
(a) They were denied procedural fairness when the Board relied on evidence introduced by the landlord’s paralegal, who was not subject to cross-examination.
(b) The Board erred by applying an unfair burden on the tenants to prove they did not receive correspondence from the landlord’s legal firm and from the Board.
(c) The Board erred by not considering the breach of the interim order before refusing the request to review.
[5] Pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), appeals from the Board to this court are limited to questions of law. The standard of review is correctness, including with respect to alleged breaches of procedural fairness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at paras. 27, 30. For the following reasons, the appeal is dismissed.
Were the tenants denied procedural fairness when the Board relied on Board documents and correspondence introduced by the landlord’s paralegal?
[6] The tenants submit they were denied procedural fairness because the Board’s conclusion was based on evidence introduced by the landlord’s paralegal. It submits there was no opportunity to cross-examine the paralegal because she was attending as a legal representative. In any event, she did not have firsthand knowledge of the correspondence. There was also no witness to testify to the Board’s procedures with respect to its correspondence. By contrast, the tenants themselves were subject to cross-examination on their evidence that they did not receive the communications.
[7] I do not accept that the Board’s reliance on the evidence from the paralegal and about the delivery of Board documents amounted to a breach of procedural fairness. Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras 23-27, sets out the factors to be considered in determining whether the requisition level of procedural fairness has been accorded. I address the factors below.
The nature and importance of the decision and the process followed in making it
[8] The decision being made was important. Losing a home is a very serious matter, especially for the tenants, who suffer from disabilities, speak a different language, and have a limited income.
[9] The process followed for making the decision allowed the tenants to testify at a review hearing after they did not appear at the original hearing date. While the Board relied on evidence that was admitted without cross-examination, the tenants did not seek to cross-examine the landlord’s paralegal. Additionally, as discussed further below, the disputed documents were a reliable form of evidence.
The nature of the statutory scheme
[10] The RTA is remedial legislation with a tenant protection focus. But the Board is also a high-volume tribunal. It is expected to proceed in an expeditious but fair manner. Section 183 of the RTA specifically requires 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 to be heard on the matter.” The Board’s procedure can include, in appropriate circumstances, admitting evidence that is unsworn and from a legal representative. Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (SPPA), the Board is empowered to admit documents, whether or not proven under oath or admissible as evidence in court. Rule 1.6 of the Board’s Rules of Procedure specifically provides that the Board may exercise its discretion to permit a party’s legal representative to give evidence where appropriate.
Legitimate expectations of the person challenging the decision
[11] In my view, it was not legitimate for the tenants to expect the Board not to rely on the disputed documents. The documents were not of a type that is usually controversial or subject to credibility assessments. The Board permitted the introduction of four documents. The first was a Board notice of termination accompanied by a certificate of service attesting that the tenants were personally served on June 9, 2022. The tenants would have been aware from the notice that arrears were owing. The landlord’s legal firm then sent two letters to the tenants: the first, dated July 28, 2022 advised the tenants that the landlord had filed an application with the Board; the second, dated February 13, 2023, advised the tenants of the upcoming hearing. The Board also mailed a notice of hearing on February 13, 2023 and a copy of the March 10, 2023 order.
[12] With respect to the letters from the legal firm, the tenants did not seek to cross-examine the landlord’s paralegal at the hearing. They were not precluded from doing so. The commentary to rule 5.2-1 of the Law Society of Ontario Rules of Professional Conduct provides that “there are no restrictions on the advocate’s right to cross-examine another lawyer.” The tenants submit that, in any event, her evidence would not reflect firsthand knowledge since she was not the writer of the letters. Nonetheless, she presumably could have answered questions about procedures at the firm for preparing and mailing correspondence if the tenants thought that information was important.
[13] However, as the Board noted, none of the legal correspondence was returned as undeliverable. The tenants did not put forward any theory of why these documents, which normally would be considered reliable, were plausibly not delivered in this case. They did not propose any questions that would have been asked on cross-examination that would have materially affected the assessment of the evidence.
[14] The circumstances here are distinguishable from Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083. The disputed evidence in that case was much less reliable than the disputed evidence here. A tenant was evicted because she allegedly committed an illegal act by throwing a rabbit off her 15th floor balcony to its death. The tenant and another witness testified that the rabbit jumped. The only evidence of an illegal act was from a police officer who read the notes of another police officer who had attended the scene after the incident. Neither police officer had witnessed the incident. The complainant who had provided a statement to the police did not testify. This court found that in those circumstances, it was unfair to allow the landlord to test the tenant’s credibility while the tenant had no opportunity to test the credibility of the complainant.
[15] The disputed evidence in the current case was of an entirely different order. It was not the third hand version of a hotly contested incident, but documents from the Board and a legal firm that were not returned as undeliverable. This does not mean the Board was required to accept the tenants received the correspondence, but it was not a breach of procedural fairness to admit the documents without cross-examination.
Respect for the procedural choices of the decision-maker
[16] The Board is entitled to control its own process. As set out above, it is expected to proceed in an expeditious manner and is entitled to admit unsworn evidence in appropriate circumstances.
Conclusion on procedural fairness
[17] Overall, because of the nature of the disputed documents, it was open to the Board to admit them into evidence. It also remained open to the tenants to provide evidence or a proposed explanation as to why or how they did not receive the correspondence. This could have included, for example, information about how mail was received in the building, or a lack of security related to mail. The tenant Ms. Glonczi did testify that she had lost the key to the mailbox “a couple of weeks” before the sheriff attended the unit on April 14, 2023. But the Board noted the letters from the legal firm would have been sent well before this time period. The Board found that, while the tenants may not have fully understood the documents, it was “highly improbable” that none of the letters, the notice of hearing, and the order of the Board were received. It was entitled to admit the documents and reach this conclusion. Doing so did not amount to a breach of procedural fairness.
Did the Board err by placing an unfair burden on the tenants to prove they could not participate in the proceedings?
[18] The tenants submit the Board erred by placing a burden of proof on the tenants beyond the balance of probabilities. This was because, in their submission, they were required to prove a negative, which was that they did not receive the documentation.
[19] I disagree with this submission. The onus was on the tenants at the review hearing. The LTB Rules of Procedure allow the Board to grant a review where the order contains a serious error, or where a party was not reasonably able to participate in the proceeding. The onus is on the requestor to demonstrate they were not reasonably able to participate. The LTB’s interpretation guideline for reviewing an order provides guidance on the types of information and evidence that should be included in the request. In general, the request must "provide a detailed explanation why the requestor was unable to participate in the proceeding and satisfy the LTB he or she genuinely intended to participate."
[20] Here, the Board weighed the testimony of the tenants against the written record of multiple letters and notices that appeared to have been sent to them. It was not persuaded by Ms. Glonczi’s explanation about the missing key. This was not imposing a higher burden on the tenants but weighing all the evidence and arriving at a conclusion on the balance of probabilities. There was no error of law in the Board’s approach.
Did the Board err by failing to address the landlord’s breach of the interim order before denying the request to review?
[21] The tenants submit the Board erred by failing to address the landlord’s breach of the interim order, which they raised as a preliminary issue. They submit the decision failed to account for a matter of central concern to the tenants. They also submit it was an error for the Board to fail to take the facts surrounding the re-rental into account when weighing the landlord’s credibility.
[22] The Board’s decision does not address landlord’s alleged breach of the interim order and the court was advised that the Board recording from the review hearing was not available. Counsel for the tenants also advised there was no dispute the landlord re-rented the unit. The landlord did not appear at the appeal. In all these circumstances, I accept the information from counsel that there was no dispute the interim order was breached.
[23] This conduct on the landlord’s part was deplorable and should not be condoned. I understand why the tenants wanted the Board to address it in some fashion. That said, I do not see a basis for this court to intervene at this stage. As set out above, the Board has control of its own process and is required to proceed in an expeditious manner. It was not unreasonable for the Board to decide to hear the request for review before determining the alleged breach of the interim order. If the request for review was dismissed, the breach of the interim order would arguably be moot since the landlord was entitled to evict the tenants before the re-rental of the unit.
[24] To the extent the tenants submit the LTB should have ordered an administrative fine to deter the landlord’s bad behaviour, this was a discretionary remedy. There was also a dispute about whether it was requested at the hearing. The failure to order a fine does not amount to an error of law.
[25] Contrary to the tenants’ submission, it also was not a legal error for the Board to fail to address the breach of the order in assessing the landlord’s credibility. The Board is not required, in its reasons, to address every argument raised by the parties. Here, the breach of the interim order took place months after the eviction order. It was open to the tenants to argue the breach reflected bad faith on the landlord’s part, but the tenants did not dispute they owed arrears at the time of the eviction. Although the breach was important to the tenants, it was not sufficiently probative to the facts surrounding the initial eviction that the Board erred in deciding not to address it.
Disposition
[26] The appeal is dismissed. Neither party seeks costs and none are awarded.
___________________________ O’Brien J.
Released: October 16, 2024
CITATION: Gloczi et al v. Dupont/Lansdowne Holdings Inc., 2024 ONSC 5645
DIVISIONAL COURT FILE NO.: 149/24
DATE: 20241016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Lajosne Glonczi and Gabor Glonczi
Appellants
– and –
Dupont/Lansdowne Holdings Inc.
Respondent
REASONS FOR JUDGMENT
O’Brien J.
Released: October 16, 2024